Last updated: March 2025

Welcome to the MODE Cosmetics website, https://www.modecosmetics.com, (the “Site”). Zela International LLC (“Zela”, “we”, "us" or "our”) governs your access to and use of the Site, including all content, products, and services and including its related subdomains, microsites and any other website(s) owned and/or operated by Zela (including any of its subsidiaries or affiliates) and any of their associated web pages (collectively, our “Services”). These Zela Terms of Use (referred to as both the "Terms" and/or the "Agreement") govern your use of our Site and your conduct, irrespective of your means of access, whether from a computer, mobile phone, or other device.

The Terms constitutes a legally binding agreement between you and Zela (collectively, the “parties”), please take some time to review these Terms before accessing or using the Site. By accessing, browsing, and/or using the Services, including purchasing any products through the Services, you represent, warrant, understand and agree: (1) to accept, comply with, and be bound by these Terms; (2) that you have the right, authority, and capacity to abide by these Terms; (3) to comply with all applicable laws, rules and regulations concerning your access to and use of the Services; and (4) you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or another applicable jurisdiction. You agree to be bound by the Terms, whether or not you are a registered user of our site, including the collection and use of your information set forth in our Privacy Policy. Certain services may be subject to additional terms, guidelines or rules, which will be available in conjunction with those relevant services, and those additional terms will become part of these Terms when you use those services.

By accessing, browsing, and/or using the Site, you affirm that you are 18 years of age or older and meet the other eligibility requirements specified in the Terms to enter into these Terms of Use. If you do not meet any of these requirements, you may not access or use the Site.

IMPORTANT: THESE TERMS OF USE CONTAIN PROVISIONS THAT (I) LIMIT OUR LIABILITY TO YOU, (II) ELIMINATE YOUR RIGHT TO TO SEEK RELIEF IN COURT OR TO HAVE A TRIAL BY JURY FOR ANY CLAIMS, AND (III) REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS AND NOT AS A PART OF ANY CLASS OR REPRESENTATIVE ACTION AND THROUGH FINAL AND BINDING ARBITRATION (SEE SECTION 17). PLEASE REVIEW THESE TERMS OF USE CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS SITE AND/OR ANY SERVICES PROVIDED BY ZELA.

1. MODIFICATIONS

We reserve the right, at any time in our sole discretion, to modify the Site with or without notice to you, by making those modifications available on the Site. We also reserve the right, at any time in our sole discretion, to modify the Terms; provided that any modifications to our Privacy Policy will be pursuant to the terms set forth therein. We will inform you of the presence of any changes to the Terms by posting those changes on the Site. Any modifications will be effective immediately upon posting on the Site. You may terminate your Account or cease using the Site if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the Site following such notice period. We will note the effective date of the latest version of these Terms at the top of this page. It is your responsibility to review these Terms periodically.

2. PROHIBITED USES AND RESTRICTIONS

Unless authorized in writing by Zela, you may use the Services solely for your personal and non-commercial use. You agree to only access or use the Services solely for legal purposes as allowed by these Terms. (International users should note that they must agree to comply with all applicable local laws regarding privacy, online conduct and acceptable use and content.) Amongst other things, you agree not to:

(a) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame, use, transfer or sell any information, software, products, services or Content (as defined below) provided through or obtained from the Services, including without limitation, engage in the practice of "screen scraping," or any other similar activity;

(b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Site, or otherwise make the Site available to any third party;

(c) hack into the Services or any of its websites, or modify another website so as to falsely imply that it is associated or affiliated with the Services;

(d) damage, disable, overburden, transmit any worms or viruses or any code of a destructive nature, or interfere with any other party's use and enjoyment of the Services;

(e) engage in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation, or that would fail to comply with accepted Internet protocol;

(f) disassemble, decode, decompile, modify, reverse engineer, or create any derivative works based upon any part of the Services;

(g) violate any applicable laws, rules or regulations in your jurisdiction (including but not limited to trademark and copyright laws);

(h) communicate, transmit or post material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the irrevocable permission of the owner to post it;

(i) post any information that is incomplete, false, inaccurate or not your own;

(j) communicate, transmit or post material that reveals trade secrets, infringes on any other intellectual property, privacy or publicity right of another unless you own them or have the irrevocable permission of the owner;

(k) communicating, transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of any applicable export control laws;

(l) collect account information for the benefit of yourself or another party or otherwise attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Site;

(m) use any meta tags or any other “hidden text” utilizing any part of the Site;

(n) use software robots, spiders, crawlers, data mining tools, automated or non-automated scraping or similar data gathering and extraction tools, to access, collect, copy or record;

(o) use the Site for any unlawful or improper purpose, including but not limited to solicit others to perform unlawful acts or to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate; or

(p) access or attempt to access to gain unauthorized access to any other computer system, any password-protected, secure or non-public areas of the Services without the express permission of Zela.

For any portion of the Services that requires a user name and/or password, you are responsible for all use of your account (under any user name or password) and for ensuring that all use of your account complies fully with the provisions of these Terms. You shall be responsible for protecting the confidentiality of your user name(s) or password(s), if any.

3. PRIVACY

Please review our privacy policy, available at www.modecosmetics.com/privacy-policy (“Privacy Policy”) for details about our personal information practices. The Privacy Policy is incorporated by reference herein, and these Terms and Conditions are incorporated into the Privacy Policy.

4. PRODUCTS AND SERVICES FOR PERSONAL USE

The products and services available on the Site, and any samples we may provide to you, are for your personal use only. You may not sell or resell any of the products or services, or any samples, that you purchase or otherwise receive from us for any commercial purposes. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products or services to be provided to you that we believe, in our sole discretion, may result in the violation of our Terms.

5. ACCURACY OF INFORMATION

We attempt to be as accurate as possible when describing our products and services on the Site; however, we do not warrant that the descriptions, colors, information, or other Content available on the Site are accurate, complete, reliable, current, or error-free. The displayed attributes of the products depend upon the monitor of the user, and Zela cannot guarantee that the user’s monitor will accurately portray the actual attributes of the products. Products displayed may be out of stock or discontinued, and prices are subject to change.

This Site may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies, or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. Please note that such errors, inaccuracies or omissions may relate to pricing and availability, and we reserve the right to cancel or refuse to accept any order placed based on incorrect pricing or availability information. Likewise, Zela does not warrant the accuracy of customer product ratings, comments or feedback. We apologize for any inconvenience.

6. SHIPMENT OF ORDER

Orders will be shipped to the address designated by the purchaser. All purchases from this Site or other Service are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the Site or a Service pass to the buyer upon delivery of the items to the carrier. The buyer is responsible for filing any claims with carriers for damaged and/or lost shipments.

7. YOUR USE OF THE SITE

When accessing or using the Site, you will at all times comply with these Terms and the special warnings or instructions for access or use posted on the Site. You shall act always in accordance with the law, custom and in good faith. You may not make any change or alteration to the Site and may not impair the integrity or operation of the Site in any way. You further agree not to (1) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, including without limitation, any Zela employee, agent, representative, officer, director, principal, member, contractor, forum leader, guide, or host; (2) “stalk” or otherwise harass including advocating harassment of another (including, without limitation, any Zela employee, agent, representative, officer, director, principal, member, contractor, or host), entrap or harm any third party including harming minors in any way; (3) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content, including Your Content; (4) intentionally or unintentionally violate any applicable local, state, national or international law; or (5) collect or store personally identifiable data about other users. Without limiting the generality of any other provision of these Terms, if you default on your obligations as set forth in these Terms, you shall be liable for all losses and damages your default may cause us, our subsidiaries, affiliates, partners, or licensors.

Subject to your compliance with the Terms, we will permit you to access and make personal use of the Site solely for lawful purposes and only in accordance with the Terms and any other agreement you agree to before being given access to any specific areas or features of the Site. If you are accessing and using the Site on someone else’s or an entity’s behalf, you represent that you have the authority to bind that person or entity as the principal to all Terms provided herein and that you agree to the Terms on such person’s or entity’s behalf, and to the extent you do not have such authority you agree to be bound to these Terms and to accept liability for harm caused by any wrongful use resulting from such access or use of the Site.

Subject to your compliance with the Terms, you may also create a hyperlink to the home page of the Site for personal, non-commercial use only. A website that links to the Site may not (a) replicate, any of our Content; (b) imply that we are endorsing such website or its services or products; (c) misrepresent its relationship with us; (d) contain content that could be construed as distasteful, obscene, offensive, controversial, illegal, or inappropriate for any ages (as determined in our sole discretion); (e) portray us or our products or services, in a false, misleading, derogatory, or otherwise offensive or objectionable manner, or associate us with undesirable products, services, or opinions; or (f) link to any page of the Site other than the home page. We may, in our sole discretion, request that you remove any link to the Site, and upon receipt of such request, you shall immediately remove such link and cease any linking unless separately and expressly authorized in writing by us to resume linking.

You may be provided with access to a variety of data, information, and content through the Site, including all information, text, graphics, images, illustrations, logos, designs, icons, photographs, video clips, and written or other materials software and other media (“Content”). Other than Your Content (as defined below) all Content available through the Site, and any compilation thereof, is owned by us or our third-party providers. All Content is provided for informational purposes only, and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. You will not, and will not permit any third party to: (a) edit, alter, modify, reproduce, copy, or create derivative works of any Content; (b) access, distribute, sell, resell, lend, loan, lease, license, sublicense, rent, transmit, publicly display, publicly perform, publish, adapt, or transfer any Content; or (c) use, alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Content. While you may access and interact with Content on the Site, you are granted no licenses or rights in or to any Content. Use of our Content for any purpose not expressly permitted by these Terms is strictly prohibited.

Other users and third parties may transmit or post Content to the Site. We do not endorse or control such Content, have not verified the accuracy of such Content, and will not be responsible for any errors or omissions in, any Content provided by third parties through the Site and therefore, we do not guarantee the accuracy, integrity or quality of any such Content. You understand that by using the Site, you may be exposed to Content that is offensive, indecent, or objectionable to you. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY YOU AS A RESULT OF YOUR USE OF ANY CONTENT. YOU HEREBY WAIVE ALL RIGHTS TO ANY CLAIMS AGAINST US FOR ANY ALLEGED OR ACTUAL INFRINGEMENTS OF ANY PROPRIETARY RIGHTS, RIGHTS OF PRIVACY AND PUBLICITY, MORAL RIGHTS, AND RIGHTS OF ATTRIBUTION IN CONNECTION WITH CONTENT AVAILABLE ON THE SITE.

8. YOUR ACCOUNT

Subject to the age restrictions outlined above, you may view and use many features of the Site without registering, including making purchases, but in order to access and use some parts of the Site, you may need to register an account with us (an “Account”). You may only register an Account on the Site if you are over 18 years of age. We may approve your request to establish an Account in our sole discretion. Each Account and the User identification and password for each Account is personal in nature. You agree to maintain the security and confidentiality of your Account and notify us immediately if it is lost, stolen or otherwise compromised. You are solely responsible for all activities that occur under your Account. You agree to provide only current, complete, accurate and truthful information. If you are accessing and using the Site on someone else's behalf, you represent that you have the authority to bind that person as the principal to all Terms and Conditions provided herein, and to the extent you do not have such authority you agree to be bound to these Terms and Conditions and to accept liability for harm caused by any wrongful use of the Site or Content resulting from such access or use.

9. USER CONTENT

You are solely responsible for all Content you submit, transmit, upload, post, share, distribute, reproduce, e-mail or otherwise make available to or generate through your use of the Site (“Your Content”) in any manner. As between you and us, you retain ownership of Your Content. In addition to any other rights granted to us under these Terms, by submitting, transmitting, generating, or posting any of Your Content, you hereby grant us a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, assignable right and license to copy, use, reproduce, modify, adapt, translate, publish, sublicense, distribute, and sell Your Content in any way we see fit, including but not limited to copying in whole or in part, creating derivative works from, distributing and displaying Your Content in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works, or using Your Content within or in connection with our products or services. You also acknowledge that Your Content will not be returned, and we may use Your Content, and any ideas, concepts or know how contained therein, without payment of money or any other form of consideration, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products. You represent and warrant that you own or otherwise control all rights to Your Content necessary to grant the rights and licenses herein.

You will not and will not allow others to transmit, upload, post, e-mail, generate, or otherwise make available on the Site any Content, including Your Content, that (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) you do not have a right to make available under any law or under contractual or fiduciary relationships; (c) is known by you to be false, inaccurate, or misleading; (d) you were compensated for or granted any consideration by any third party; (e) infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party; (f) is an advertisement or solicitation of any kind; or (g) is false, misleading, or inaccurate. In addition, you agree not to transmit, upload, post, e-mail, or otherwise make available any software viruses, unsolicited or unauthorized advertising, solicitation or promotional material, including chain letters, mass mailings, or any form of “spam.” You acknowledge that we have the right (but not the obligation) in our sole discretion to refuse to post or remove Your Content, and we reserve the right to change, condense, or delete any of Your Content. Without limiting the generality of the foregoing or any other provision of these Terms, we have the right to remove any of Your Content if we believe it these Terms or is otherwise objectionable and we reserve the right to refuse service and/or terminate your Accounts without prior notice if you violate these Terms or infringe the rights of others.

The Site may pull content from our users who share photos and videos on Instagram using our brand hashtags or tagging the @modecosmetics accounts. You acknowledge and agree that the photos and videos may be used in MODE's social media, emails/SMS and on the Site, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the photos and videos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your Account or the Services. You represent and warrant that the posting and use of your photos and videos, including to the extent such photos and videos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights.

10. SPECIAL FEATURES AND PROMOTIONS

The Site may offer certain special features and functionality or events (such as contests, sweepstakes or other promotions) which may (a) be subject to terms of use, rules and/or policies in addition to or in lieu of these Terms; and (b) be offered by us or by third parties. If so, we will notify you of this and if you choose to take advantage of these special features, you agree that your use of those special features will be subject to such additional or separate terms of use, rules and/or policies.

11. THIRD PARTY LINKS

We are not responsible for the Content of any off-website pages or any other websites linked to or from the Site. Links appearing on the Site are for convenience only and are not an endorsement by us, our affiliates or our partners of the referenced content, product, service, or supplier. Your linking to or from any off-website pages or other websites is at your own risk. We are in no way responsible for examining or evaluating, and we do not warrant the services of, off-website pages or any other websites linked to or from the Site, nor do we assume any responsibility or liability for the actions, content, products, or services of such pages and websites, including, without limitation, their privacy policies and terms and conditions. You should carefully review the terms and conditions and privacy policies of all off-website pages and other websites that you visit.

12. TERMINATION

These Terms of Use shall remain in full force and effect while you use the Site. Zela may terminate this Agreement and deny you access to the Site at any time, immediately and without notice, if in Zela’s sole discretion you fail to comply with any provision of these Terms. You agree that no joint venture, partnership, employment or agency relationship exists between Zela and you as a result of this Agreement or your use of the Site. These Terms constitute the entire agreement between you and Zela and govern your use of the Site, and they supersede any prior agreements between you and Zela. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.

13. INTELLECTUAL PROPERTY

We retain all right, title and interest, including, without limitation, all Intellectual Property Rights (as defined below), all information and content available on the Site, including but not limited to trademarks, logos, service marks, text, graphics, logos, button icons, images, audio clips, data compilations and software, and the compilation and organization thereof and you are granted no right or license to use them. You receive no ownership interest in and you are not granted any right or license to use, reproduce, duplicate, copy, sell, resell, access, modify, or otherwise exploit, in whole or in part, any Services for any purpose without our express, prior written consent.

Any submissions by you to us, such as comments, questions, suggestions, materials or other information you provide us (collectively, "Submissions") through any communication including through the Site, email or over the phone will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Submissions, whether or not patentable, for any purpose, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Submissions. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Submissions as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Submissions, and you have no right to compel such use, display, reproduction, or distribution.

14. IP INFRINGEMENT

We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a notification. A notification of claimed copyright infringement can be sent via a written notice to Zela's Copyright Agent for notices of infringement and provide the following:

• 🞄 An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• 🞄 A description of the copyrighted work or other intellectual property that you claim has been infringed;
• 🞄 A description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
• 🞄 Your name, your address, telephone number, and email address;
• 🞄 A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
• 🞄 A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Zela's Copyright Agent can be reached as follows:

Zela International LLC
Attn: Legal Department
13 Manor Street
Albany, NY 12207

This contact information is only for reporting claims of copyright infringement. Contact information for other matters is provided elsewhere on the Site.

15. LIMITATION OF LIABILITY and DISCLAIMER OF WARRANTIES

THE SITE AND ANY OTHER SERVICE PROVIDED BY US ARE PROVIDED "AS IS" AND "AS AVAILABLE." WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED AND ALL SUCH WARRANTIES AND CONDITIONS ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE MAKE NO WARRANTIES OR CONDITIONS WHATSOEVER REGARDING THE SITE, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING: INFORMATION AND CONTENT AVAILABLE ON THE SITE; UPTIME OR UNINTERRUPTED ACCESS TO THE SITE; TITLE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE OR THE SERVICES, CONTENT, FUNCTIONS, OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. USING THE INTERNET MAY EXPOSE YOU TO CERTAIN RISKS. WE ARE NOT RESPONSIBLE FOR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR FROM DOWNLOADING ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SITE. WE MAY CHANGE ANY OF THE INFORMATION PROVIDED ON THE SITE AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE. THE FOREGOING EXCLUSIONS OF EXPRESS AND IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LOCAL LAWS. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ZELA NOR OUR AFFILIATES, NOR ANY OF OUR PARTNERS, AGENTS, VENDORS OR LICENSORS (COLLECTIVELY, THE “ZELA PARTIES”) WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, OR NEGLIGENCE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE EXCEED ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN SUCH JURISDICTIONS, THE LIABILITY OF THE ZELA PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

16. INDEMNIFICATION

You agree to fully compensate, defend, indemnify and hold us harmless for any and all claims, liabilities, losses, damages, fees, costs and expenses (including reasonable legal fees costs), resulting from any third party claim, action, or demand relating to: (a) your use of or access of the Site; (b) Your Content; (c) your breach of any representation, warranty, or other provision of these Terms; (d) your willful misconduct; or (e) your violation of any applicable law, rule or regulation. You also agree to indemnify us for any loss, damages, or costs, including reasonable attorneys' fees, resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure.

17. DISPUTES, BINDING ARBITRATION AND CLASS ACTION WAIVER — IMPORTANT

THIS SECTION SETS FORTH THE TERMS AND CONDITIONS PURSUANT TO WHICH DISPUTES BETWEEN YOU AND ZELA WILL BE RESOLVED. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION AND TO HAVE A TRIAL IN FRONT OF A JURY.

NO CLASS ACTIONS: each party hereby knowingly, voluntarily, and intentionally waives its right to participate in a class or collective action against the other party in any dispute or proceeding (whether based on contract, statute, tort, or any other theory). All claims must be brought solely in a party's individual capacity, and not as a plaintiff or class member in any purported class action, collective action, consolidated action, representative action or proceeding.

WAIVER OF JURY TRIAL: each party hereby knowingly, voluntarily, and intentionally waives, to the fullest extent permitted by law, any and all rights they may have (including but not limited to, their constitutional or statutory right to go to court and have a trial in front of a jury) to a trial by jury in any legal proceeding for any disputes whatsoever between the parties, including but not limited to, disputes in any way arising out of or relating to these terms or the relationship of the parties (whether based on contract, statute, tort, or any other theory)

If a dispute should arise between you and Zela for any reason, and in the interest of providing a resolution in the most efficient and cost effective manner, you and Zela agree that any dispute must be resolved first by contacting our customer service team by phone at (518) 436-1833, or by email to customerservice@modecosmetics.com, or by mail to Zela International LLC, 13 Manor Street, Albany, NY 12207.

Disputes can be resolved by contacting us directly first, however, if your dispute cannot be resolved using our customer service team in a reasonable manner of time, these Terms describe how we shall proceed with the resolution of the dispute. To the fullest extent permitted by law, any claim, controversy or dispute arising out of or relating to the Site or any other Service, these terms or any other policies or other terms incorporated herein (including the breach, termination, enforcement, interpretation, enforceability, validity, or rights under any of any of the foregoing) (each, a “Dispute”) will be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its choice of law principles.

To the fullest extent permitted by law, you and Zela each agree to submit exclusively to confidential, binding arbitration in the event of a Dispute. The arbitration will be held in Albany, New York on an individual basis and not as a class action. No arbitration shall be joined with any other proceeding. In the event that arbitration is not permitted by applicable law: (i) the parties expressly agree that any Dispute will be brought and heard solely and exclusively in the federal or state courts of competent jurisdiction located in Albany County, New York and (ii) the parties waive any plea or defense that such courts are not the appropriate venue or that they are not subject to personal jurisdiction of such courts.

To the fullest extent permitted by law and subject to the terms of the paragraph above regarding New York jurisdiction and venue: (i) you expressly waive any right you may have to arbitrate a dispute as a class action; and (ii) you also expressly waive your right to a jury trial. The arbitration will be administered by JAMS. You may obtain a copy of the rules of JAMS by contacting the organization. Each of us shall agree on one arbitrator to conduct the arbitration. In the event the parties cannot agree on an arbitrator, the arbitrator will be selected in accordance with the JAMS rules. Each party shall be responsible for its own attorney, expert and other fees, unless such fees are awarded by the arbitrator to the prevailing party.

Notwithstanding anything to the contrary in this Section, to the extent either party in any manner has violated or threatened to violate the other party’s intellectual property rights, the non-breaching party may seek injunctive or other appropriate relief in any state or provincial or federal court of competent jurisdiction.

The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state or provincial law concerning arbitration, governs all arbitration under this clause. Any court having jurisdiction may enter judgment on the arbitrator’s award. If any part of this clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. Notwithstanding anything to the contrary contained herein, if the waiver of class action rights contained herein is not enforceable as to any person or persons, such non-enforceability shall apply to such person or persons only, and all other persons shall continue to be governed by the Arbitration Clause.

As stated above, to the fullest extent permitted by law, these terms provide that all Disputes will be resolved by binding arbitration and not in court or by jury trial. IF A DISPUTE IS ARBITRATED, YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE ZELA PARTIES INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN ANY STATE OR PROVINCIAL STATUTE.

Except as otherwise prohibited by law, any Dispute must be brought within one (1) year from the date the cause of action arises. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Please refer to your local laws for any such prohibitions, then such portions shall be modified to the extent possible and necessary to preserve the original intentions of this Section, and the validity or enforceability of the remaining portions of this Section 15 shall not in any way be affected or impaired thereby.

18. MISCELLANEOUS

You acknowledge and agree that these Terms constitute the complete and exclusive agreement between us concerning your use of the Site, and supersede and govern all prior proposals, agreements, or other communications. Nothing contained in these Terms shall be construed as creating any agency, partnership, or other form of joint enterprise between us. Our failure to require your performance of any provision hereof shall not affect our full right to require such performance at any time thereafter, nor shall our waiver of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by any applicable arbitral award or court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole but these Terms shall be modified, to the extent possible, by the adjudicating entity to most fully reflect the original intent of the parties as reflected in the original provision.