THE EXPERT TERMS OF SERVICE
Last Updated : June 6, 2022
The Expert, Inc., a Delaware corporation (“The Expert,” “we,” “our,” or “us”) provides and makes available The Expert Service (as defined in Section 1 below) subject to these Terms of Service (hereinafter, these “Terms”). PLEASE READ THESE TERMS CAREFULLY, AS THEY SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING THE ACCESS AND USE OF THE EXPERT SERVICE BETWEEN YOU AND THE EXPERT, INC.
PLEASE NOTE: THESE TERMS CONTAIN DISPUTE RESOLUTION PROVISIONS (SEE SECTION 16) WHICH, WITH LIMITED EXCEPTION, REQUIRE (1) THAT YOU SUBMIT DISPUTES YOU HAVE AGAINST THE EXPERT TO BINDING AND FINAL ARBITRATION, AND (2) THAT YOU WAIVE YOUR RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, GROUP, OR REPRESENTATIVE ACTION OR PROCEEDING. IN ADDITION, PLEASE BE ADVISED THAT THE EXPERT DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THESE TERMS LIMIT OUR LIABILITY TO YOU AS SET FORTH IN SECTIONS 8 AND 13.
ACCEPTANCE OF THESE TERMS. By accessing or using The Expert Service in any manner, including, but not limited to, visiting or browsing the Site and/or Marketplace, or placing orders to purchase any Products and/or Services (all as defined in Section 1 below):
(1) you expressly acknowledge that you have read, understand, and you agree to be bound by all the terms and conditions set forth in these Terms, including, without limitation, any additional terms, policies or agreements specified and/or referenced below or otherwise incorporated into these terms,
(2) you expressly affirm, represent and warrant that you meet all of the eligibility requirements set forth in Section 2 of these Terms and that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and
(3) if you use The Expert Service and/or purchase any Products, Services, and/or Consultations on behalf of another person, or an entity, organization, or company, you represent and warrant that you have the authority to bind that person, entity, organization, and/or company to these Terms and you agree to be bound by these Terms on behalf of that person, entity, organization, and/or company (in which case, “you” and “your” as used throughout these Terms shall also refer to such other person, entity, organization, and/or company).
YOU MAY NOT ACCESS OR USE THE EXPERT SERVICE (OR ANY PART THEREOF) IF YOU DO NOT AGREE TO THESE TERMS, DO NOT HAVE THE REQUISITE AUTHORITY, OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH IN SECTION 2 BELOW.
1.1. “Consultations” means interior design consultations provided by Designers that may be purchased by users of The Expert Service.
1.2. "Content” means any and all messages, photos, video, audio, images, data, information, text, communications, materials, documentation, and/or content.
1.3. “Delivery Services” means white glove professional delivery and/or installation services provided by The Expert’s third party providers for Products purchased through the Marketplace and/or from The Expert through a Trade Vendor.
1.4. “Designers” means third party expert interior designers that users can connect and engage with through Consultation purchased in connection with The Expert Service.
1.5. “Marketplace” means The Expert’s online marketplace platform, available through the Site, which users may browse and submit orders to purchase Products and Delivery Services.
1.6. “Products” means the home goods and products that users may purchase through the Marketplace and/or through a Trade Account.
1.7. "Service Content” means collectively, The Expert Content, Third-Party Content, and User Submissions made available through or in connection with the use of The Expert Service.
1.8. “Services” means, collectively, the Delivery Services, and/or any other services we provide or make available to you in connection with your use of The Expert Service, including, but not limited to, connecting users with Designers and purchasing Products on behalf of users through Trade Vendors.
1.9. “Site” means The Expert’s website located at www.theexpert.com.
1.10. “The Expert Content” means the Content that is created by or on behalf of The Expert and made available through or in connection with The Expert Service.
1.11. “The Expert Service” means, collectively, the Site, Marketplace, and Services.
1.12. “Third Party Content” means Content that originates from and/or its owned or provided by individuals, persons, or entities other than The Expert which is made available through or in connection with The Expert Service and/or Consultations, which may include, but is not limited to, User Submissions provided by other users than you, Product Information (defined in Section 13.2 below), profile and background information regarding the Designers and any Content provided by such Designers.
1.13. “Trade Vendor” means a third party vendor from which The Expert may purchase Products on behalf of users through The Expert’s trade and/or reseller accounts with such third party vendor.
1.14. “Trade Vendor Terms” means the terms and conditions of the applicable Trade Vendor with respect to your purchase of Products through us from such Trade Vendor, including, but not limited to, those pertaining to, shipping, delivery, installation, returns and/or refunds policies.
1.15. “User Submissions” means any and all Content, including, but not limited to, any reviews regarding the Products, Services and/or Designers, submitted, transmitted and/or otherwise provided or made available by or on behalf of users in connection with the use of The Expert Service and/or any Consultations.
You may generally visit and browse the Site and Marketplace if you are at least 13 years of age; however, you must be at least 18 years old or the age of majority in your jurisdiction to create an account to use The Expert Service (an “Account”) and to purchase Products, Services and/or Consultations. You affirm and represent and warrant that you are 18 years old or the age of majority in your jurisdiction, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms.
3. ADDITIONAL TERMS & POLICIES
3.1. Generally. When using particular services or materials through or in connection with The Expert Service, you will be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in these Terms, including without limitation, our Privacy Notice, Purchase Terms and Conditions, Return Policy, and Infringement Policy (collectively, the “Additional Terms”). All such Additional Terms, including, without limitation, the Additional Terms listed below in this Section 3, are hereby incorporated into and made a part of these Terms by reference. In the event the provisions of any Additional Terms conflict with these Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms. For the avoidance of doubt, if you are a Designer, the Designer terms and conditions and/or other agreement entered into by you and The Expert with respect to your provision of Consultations in connection with The Expert Service shall control with respect to the subject matter thereof in the event of a conflict between these Terms and such Designer terms and conditions and/or other agreement.
3.3. Purchase Terms and Conditions; Return Policy. If you purchase Products through The Expert Service, your purchase shall be subject to our Purchase Terms and Conditions and, with respect to Products purchased through the Marketplace, our Return Policy (collectively, the “Sales Terms”). Please read the Sales Terms carefully prior to each purchase as they describe our terms and conditions of sale for Product you purchase through The Expert Service, and, with respect to Product purchased through the Marketplace, our policies and procedures regarding permitted returns. For the avoidance of doubt, returns and/or refunds of Product purchased through Trade Vendors are subject to the applicable Trade Vendor Terms, and not our Return Policy.
3.4 Infringement Policy. If you believe that any Products and/or content made available through The Expert Service violates your copyright and/or trademark rights, please see The Expert’s Infringement Policy for instructions on sending us a notice of copyright and/or trademark infringement.
4. MODIFICATIONS TO THESE TERMS.
The Expert reserves the right to update or modify these Terms and/or any Additional Terms at any time. Except as stated below with respect to material changes, all updates and modifications to these documents will be effective from the day they are posted online at https://www.theexpert.com/terms, with respect to these Terms, or the specific webpage for the applicable Additional Terms. If we make any material changes to these Terms and/or any Additional Terms, we will post a prominent notice of the changes on the Site and/or through the user interface of the Marketplace. In addition, if we have an email address on file for you, we may notify you of these changes by sending a notification to the applicable email address. Material changes to these Terms and/or Additional Terms (as applicable) will become effective on the date set forth in the notice. It is your responsibility to regularly visit and review these Terms and the Additional Terms for updates, changes and modification. If you do not agree to any updates or modifications to these Terms and/or any Additional Terms, simply do not use or access The Expert Service or purchase any Products, Services and/or Consultations, and, if applicable, terminate your user account. If you continue to access or use The Expert Service (or any part thereof) or purchase any Products, Services and/or Consultations after the applicable effective date of the revised Terms and/or Additional Terms, that will constitute your acceptance of the revised Terms.
5. ACCOUNTS; COMMUNICATIONS; USER SUBMISSIONS
5.1. Accounts. To access and use certain features of The Expert Service you may need to create and register an Account. In registering an Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, and (b) create an Account or use The Expert Service if you have been previously removed or banned by us from use of The Expert Service, or any part thereof. The Expert reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
5.2. Account Security. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account.
5.3. Electronic Communications. By using The Expert Service, you consent to receiving electronic communications from The Expert, including, notices via email and/or posted on our Site and/or the Marketplace. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of The Expert Service and/or purchase of any Products, Services and/or Consultations, and are part of your relationship with The Expert. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
5.4. User Submissions. To the extent you post, submit, transmit, and/or upload, or otherwise provide any User Submissions, you grant The Expert a worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (including through the use of subcontractors) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify (for the purpose of formatting for display), and distribute your User Submissions, in whole or in part, in connection with your use of The Expert Service and/or Consultations, and as reasonably necessary to provide The Expert Service to you and other users. The Expert will only use User Submissions as provided in these Terms, and the Privacy Notice, or as may be required by law.
5.5. Public Submissions & Reviews. Please be advised that, any User Submissions posted to public forums, chats, blogs, message boards, or other communication tools made available through or in connection with The Expert Service and/or Consultations will be considered non-confidential and non-proprietary. The Expert does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein and takes no responsibility for User Submissions. The Expert reserves the right, but is not obligated, to monitor User Submissions or other content sent to or through The Expert Service. The Expert has the right to refuse, remove, edit or delete any User Submissions for any reason.
5.6. Ownership & Responsibility for User Submissions. Subject to the licenses you grant us in these Terms, as between The Expert and you, you will retain ownership of your User Submissions. You acknowledge and agree that you, and not The Expert, are solely responsible for any User Submissions submitted, transmitted and/or contributed by you, including the legality, reliability, accuracy and appropriateness of such User Submissions. By providing User Submissions, you represent and warrant that: (a) you own or control all rights in and to User Submission, and have the necessary rights to grant the licenses granted to The Expert in these Terms; (b) you have obtained all permissions and/or approvals as may be necessary or required to transmit User Submissions, or any personally identifiable information therein, in connection with the use of The Expert Service and/or Consultations; and (c) all User Submissions do and will comply with these Terms.
6. USE OF THE EXPERT SERVICE
6.1. Limited Rights to Access the Site and Marketplace. Subject to your compliance with these Terms, The Expert hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Site and the Marketplace, over the internet, and view the Service Content, made available through the Site and the Marketplace, in each case on a non-commercial basis, and otherwise in accordance with these Terms.
6.2. Prohibited Use. By using The Expert Service, you agree that you will not, and will not permit any other person to:
(a) Modify, adapt, translate or create derivative works based on The Expert Service (or any part thereof) or any Service Content (other than your User Submissions);
(b) Reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Site and/or Marketplace, except as expressly permitted by applicable law;
(c) Distribute, license, sublicense, assign, transfer or otherwise make available to any third party The Expert Service or any Service Content (other than your User Submissions);
(d) Remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of The Expert or its suppliers on or within The Expert Service or any Service Content;
(e) Store, transmit or upload any material and/or content through or in connection with the use of The Expert Service, or engage in any behavior in connection with your use of The Expert Service and/or any Consultations, that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in The Expert’s reasonable opinion;
(f) Use The Expert Service to store or transmit malicious code or any material in a way that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
(g) Use The Expert Service (or any part thereof) and/or any Service Content to hack, spam, or phish The Expert, Designers, and/or any other users;
(h) Interfere with or disrupt the integrity or performance of The Expert Service (or any part thereof) or any system, network or data, or take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Expert’s technology infrastructure or otherwise make excessive traffic demands of The Expert Service;
(i) Attempt to gain unauthorized access to The Expert Service (or any part thereof) or its related systems or networks, including, without limitation, bypassing any “captcha” requirements or similar precautions;
(j) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of The Expert Service, features that prevent or restrict the use or copying of any Service Content, or features that enforce limitations on the use of The Expert Service;
(k) Frame or utilize framing techniques to enclose The Expert Service, Service Content, or any portion thereof;
(l) Use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download The Expert Service, Service Content (except caching or as necessary to view the Service Content), or the personal information of others without our prior written permission or authorization;
(m) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(n) Operate to defraud The Expert, Designers, other users, or any other person or provide false, inaccurate or misleading information;
(o) Access and/or use The Expert Service (or any part thereof), Service Content, and/or any Consultations for the purpose of developing competitive products or services;
(p) Use The Expert Service, Service Content, or provide any User Submissions, other than in accordance with these Terms and/or any Additional Terms (if applicable); or
(q) Use The Expert Service and/or any Service Content in violation of any applicable local, state, national or international law, including, without limitation, any and all applicable export laws.
6.3. Feedback. You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of The Expert Service, Service Content (but excluding your User Submissions), Designers, Trade Vendors, Products, Services and/or Consultations, including, without limitation, the functioning, features, and other characteristics of the Site, Marketplace, Services, and/or Service Content (or any component thereof) and any reviews you post regarding the Products, Services, Designers, Consultations and/or Trade Vendors (“Feedback”) may be used by The Expert without compensation or attribution to you, and you hereby grant The Expert, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all your intellectual property rights in and to such Feedback, for The Expert to use and exploit for any purpose.
6.4. Proprietary Rights. As between you and The Expert, The Expert and its licensors retain all right, title and interest in and to The Expert Content and The Expert Service, including, but not limited to, the visual interfaces, interactive features, graphics, design, compilation, our selection, coordination, aggregation, and arrangement of Service Content, computer code, products, software, aggregate star ratings, and all other elements and components of The Expert Service (but excluding any User Submission and Third Party Content), and any and all modifications, enhancements and updates to any of the foregoing. All The Expert trademarks, tradenames, service marks, logos and branding are strictly owned by The Expert, and nothing in these Terms will be construed to transfer ownership rights or grant any permission, license or other rights to any trademark, tradename, service mark, logo and/or branding of The Expert without written authorization from The Expert. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through The Expert Service and/or Service Content may be the trademarks of their respective owners. The Expert reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by The Expert. The Expert Service (and its underlying technology) and The Expert Content are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
7. CONSULTATIONS FROM DESIGNERS
The terms and conditions set forth in this Section 7 shall apply to you if you engage with and/or purchase any Consultations from a Designer through The Expert Service.
7.1. Consultations. The Expert Service enables users to connect with Designers and purchase Consultations from such Designers. If you decide to engage a Designer you acknowledge and agree that you will be required to and shall pay the applicable fees for the Consultation purchased by you specified in the Order submitted by you to engage such Designer (the “Consultation Fees”). The Consultation Fees shall be paid through the payment processing methods available through The Expert Service in accordance with and as set forth in Section 9 below. You agree that you will not indirectly or directly offer or solicit any Designers, or accept any offer or solicitation from a Designer, to invoice, pay, or receive payment of the Consultation Fees or any other fees and/or amounts in any manner other than through The Expert Service.
7.2. Consultation Cancellations and Rescheduling. Subject to these Terms, you may cancel or reschedule a Consultation up to 72 hours before the scheduled time of the Consultation for a full refund. If you cancel or request a reschedule less than 72 hours before your Consultation, you will be charged in full. In addition, you are allowed one cancellation and one reschedule between each completed Consultation. Any cancellations and/or reschedules beyond that will politely be declined and charged in full.
8. YOUR DEALINGS WITH DESIGNERS AND/OR TRADE VENDORS
8.1. Identity Disclaimer. Please note that The Expert does not currently conduct any verification of or background checks on any Designers and/or Trade Vendors. The Expert does not represent, warrant or guarantee the identity of any Designers and/or Trade Vendors and whether any Designers and/or Trade Vendors are trustworthy. You are solely responsible for making your own decisions about the suitability of Designers and/or Trade Vendors whom you contact, communicate, transact or interact with in connection with your use of The Expert Service, including, but not limited to, any Consultations and/or Trade Account Products purchased by you.
8.2. Your Dealings with Designers and/or Trade Vendors. You acknowledge, understand, and agree that, except solely with respect to The Expert’s payment processing and/or order placement obligations (as applicable) with respect to the fees paid by you through The Expert Service for Consultations and/or Products from Trade Vendors purchased by you, any agreement(s), understandings, interactions, communications, and/or dealings between you and any Designer and/or Trade Account, including, but not limited to, the Consultations with respect to Designers and/or any Products purchased by you from Trade Vendors and the applicable Trade Account Terms (all of the foregoing, collectively, “Dealings”), shall be solely between you and the applicable Designer and/or the Trade Account, and The Expert shall not be a party to any Dealings, or have any responsibility or liability for such Dealings and/or the performance of the applicable Designer and/or Trade Account of its obligations under or in connection with any such Dealings. You further acknowledge, understand and agree that any problems or disputes between you and any Designer and/or Trade Account and/or with respect to any Dealings between you and any Designer and/or Trade Account (collectively, “Your Disputes”) must be resolved solely between you and such Designer and/or Trade Account. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE EXPERT DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY DESIGNER AND/OR TRADE ACCOUNT AND/OR THE PERFORMANCE OF ANY SERVICES (INCLUDING, BUT NOT LIMITED TO CONSULTATIONS) BY SUCH DESIGNERS OR THE SERVICES AND/OR PRODUCTS OF SUCH TRADE VENDORS, OR IN ANY WAY MONITOR, ANY TRANSACTION, ENGAGEMENT AND/OR RELATIONSHIP BETWEEN YOU AND ANY DESIGNER AND/OR TRADE ACCOUNT. YOUR USE OF AND/OR ENGAGEMENT WITH ANY DESIGNER AND/OR PURCHASE OF ANY PRODUCT FROM A TRADE ACCOUNT SHALL BE AT YOUR SOLE AND ENTIRE RISK. THE EXPERT IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS, HARM OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS or otherwise arising from your disputes AND YOU AGREE THAT THE EXPERT IS UNDER AND HAS NO OBLIGATION TO BECOME INVOLVED IN ANY OF YOUR DISPUTES.
8.3. Release. YOU, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, HEREBY EXPRESSLY RELEASE, DISCHARGE, AND HOLD THE EXPERT AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNEES (COLLECTIVELY, THE “RELEASED PARTIES”) HARMLESS FROM, AND WAIVE ANY AND ALL CLAIMS (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH), DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO CONSULTATIONS AND/OR TRADE ACCOUNT PRODUCTS PURCHASES BY YOU AND/OR YOUR DEALINGS AND/OR YOUR DISPUTES WITH ANY DESIGNERS AND/OR TRADE VENDORS. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY WAIVE, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER OR ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, HER OR IT MUST HAVE MATERIALLY AFFECTED HIS, HER OR ITS SETTLEMENT WITH THE RELEASED PARTIES.”
9. FEES; PAYMENT TERMS
9.1. Fees for The Expert Service and Consultations; Payment Terms. The fees payable by you in connection to your use of The Expert Service and/or the purchase of Consultations shall be set forth in the applicable electronic or written order (each, an “Order”) submitted by you to obtain access to The Expert Service and/or purchase the Consultations. You agree to, and shall, pay The Expert, and hereby authorize The Expert and its third payment processors to charge you, the fees, charges and taxes, specified in the Order submitted by you to The Expert for access to The Expert Service and/or the purchase of any Consultations, in accordance with the payment terms specified therein. You will be asked to supply certain information relevant to your Order including, without limitation, your credit card number, the expiration date of your credit card (and CCV#), your billing address, and/or your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) provided by you in connection with any Order. By submitting such information, you grant The Expert the right to provide such information to our third party service providers for purposes of facilitating the completion of Orders initiated by you or on your behalf. Verification of your information may be required prior to the acknowledgment or completion of any Order.
9.2. Products and Delivery Services. The fees and payment terms applicable to your purchase of any Products and related Delivery Services are set forth in the Purchase Terms and Conditions.
9.3. Gift Cards. We may offer the ability to purchase gift cards (“Gift Cards”) for use to purchase Consultations and/or Products through the Marketplace. All Gift Card purchases are non-refundable. Gift Card purchases are solely redeemable for a Consultation or a portion of a Consultation and for Products listed on the Marketplace. Gift Cards are non-redeemable for Products purchased through Trade Vendors. Only one Gift Card can be used per Consultation booking or per Order of Products through the Marketplace.
9.4. Returns; Cancellation. Except as otherwise expressly set forth in these Terms, the Purchase Terms and Conditions, and/or Return Policy, or as required by law, all purchases of Products, Services and/or Consultations are final, non-refundable, and non-cancellable. Refunds, if any, shall be issued back to the original form of payment.
9.5. Changes to Fees & Payment Terms. We may at any time and from time to time, in our sole discretion, change the fees, pricing models, charges, and/or payment terms, or add new fees, pricing models, charges, and/or payment terms applicable to The Expert Service, Consultations and/or purchase of Products through Trade Vendors.
10. THIRD PARTY INTEGRATIONS, THIRD PARTY CONTENT, SERVICES & LINKED SITES
10.1. Third Party Integrations. The Expert Service may integrate and/or enable you to utilize certain third-party products, services and/or applications (including, without limitation, including, without limitation, data products and services) in connection with the use of The Expert Service which are not owned, controlled, or operated by The Expert and are subject to separate terms and conditions (collectively, “Third-Party Integrations”). For example, we may integrate with single sign-on services, which enable you to log into your Account using your sign-on credentials through a third party account (such as, Google), and the Designers use Zoom video conferencing to provide Consultations, each of which are a Third Party Integration. Your use of any Third-Party Integrations is governed by the terms and conditions, terms of service, and/or similar end user agreements of the respective service providers. The Third-Party Integrations are not part of or included in the term “The Expert Service” as used through these Terms, and are operated and controlled by the applicable third-party providers of the Third-Party Integrations. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING AND FOR COMPLYING WITH THE APPLICABLE TERMS OF SERVICE AND PRIVACY NOTICES FOR SUCH THIRD-PARTY INTEGRATIONS. FAILURE TO COMPLY MAY RESULT IN THE TERMINATION OF YOUR ACCOUNT WITH A THIRD-PARTY INTEGRATION PROVIDER AND INABILITY TO USE A PARTICULAR FEATURE OR SERVICE WE OFFER.
10.2. Third Party Content, & Services & Linked Sites. We may publish and/or make available Third Party Content on or through The Expert Service and/or links or advertisements to certain third-party websites, products and/or services (collectively, “Linked Sites & Ads”). The Expert may receive payment or a commission if you purchase any services, products, applications, and/or goods offered by or through the providers of such Linked Sites & Ads (collectively, the “Third Party Services”); however, the Linked Sites & Ads and the applicable Third-Party Services are not controlled or owned by The Expert. If you decide to use such Linked Sites & Ads and/or any Third-Party Services, be advised that your use is governed solely by the terms and conditions of the respective providers of such Linked Sites & Ads and/or the Third-Party Services. YOU ARE RESPONSIBLE FOR REVIEWING AND COMPLYING WITH THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY NOTICES FOR SUCH LINKED SITES & ADS AND/OR THIRD-PARTY SERVICES.
You agree to, and shall indemnify, defend and hold harmless The Expert, its employees, contractors, service providers, vendors, and/or agents, from and against any and all claims, actions, demands, liabilities, losses, damages, expenses, and costs (including reasonable attorney fees) arising from (a) your breach of these Terms and/or any other Additional Terms, (b) violation of any license or other agreement applicable to any Third Party Integrations; (c) failure to perform and/or comply with your obligations and responsibilities applicable to any Consultations purchased by you, (d) your use or alleged misuse of The Expert Service (or any part thereof) and/or any Service Content, (e) your use and/or misuse of the Consultations you purchase, (f) your User Submissions; and/or (g) any of your Dealings and Your Disputes. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, in which case, you agree to cooperate with us in the defense of the claim. Some jurisdictions limit consumer indemnities, so some portions or all of this indemnity provision may not apply to you.
12. TERMINATION & CHANGES TO THE EXPERT SERVICE
12.1. Termination. These Terms will remain in full force and effect as long as you continue to access or use The Expert Service (or any part thereof), or until terminated in accordance with the provisions of these Terms. You may terminate at any time ceasing all use of The Expert Service and, if you have an Account, terminating your Account by emailing us at firstname.lastname@example.org. At any time, The Expert may suspend or terminate your rights to access or use The Expert Service (or any part thereof), and/or terminate these Terms with respect to you, if The Expert, in good faith, believes that you have used The Expert Service (or any part thereof) in violation of these Terms and/or any Additional Terms. Upon termination of these Terms, your Account and your right to use The Expert Service will automatically terminate. The provisions of Sections 1, 2, 5, 6.2, 6.3, 6.4, 7, 8, 9, 10.2, 13, 15, 16 and 17, together with any other Sections and/or provisions in any Additional Terms and/or any rights and obligations herein or in any Additional Terms which by their nature are reasonably intended to survive such termination, will survive any termination of these Terms.
12.2. Changes and Modifications. The Expert reserves the right to either temporarily or permanently modify, suspend, remove, or discontinue The Expert Service (in whole or in part) and/or any Products and Services offered through or in connection with The Expert Service, at any time, with or without notice. You agree that The Expert will not be liable to you or to any third party for any modification, suspension, removal or discontinuance of The Expert Service (or any part thereof) and/or any Products or Services.
13. DISCLAIMERS OF WARRANTIES & LIMITATIONS ON OUR LIABILITY
13.1. Disclaimer of Warranties - Generally. The Expert Service, service content, PRODUCTS (subject to the return policy with respect to marketplace products only), consultations, AND/or ANY OTHER MATERIALS PROVIDED BY The Expert, ARE all PROVIDED "AS IS" AND "AS AVAILABLE". The Expert AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
The Expert AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT The Expert Service (OR ANY PART THEREOF), service content, products, consultations, OR ANY OTHER MATERIALS PROVIDED BY The Expert or in connection with the expert service WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES, including, but not limited to, third party integrations; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE EXPERT, ANY THIRD PARTY, including, but not limited to, any designers and/or Trade Vendors, OR THROUGH The Expert Service any service content, and/or consultations, SHALL CREATE ANY WARRANTY.
13.2. Disclaimer – Product Information, Colors; Product Listings. All information provided and/or made available through or in connection with The Expert Service and/or consultations regarding the Products, including without limitation, any information, images, pictures and/or materials included in PRODUCTS listings, and/or any INFORMATION ABOUT THE VENDOR OF THE PRODUCTS (collectively, “PRODUCT Information”) is provided for informational purposes and personal uses only.
You understand and agree that The Expert uses commercially reasonable efforts to display the colors of THE PRODUCTS accurately on the site and the marketplace. However, because individual computer monitors and/or devices may display colors differently, The Expert is not responsible for the color accuracy of any PRODUCTS displayed on or through the site and/or marketplace, and disclaims all liability in this regard.
The Expert assumes no liability whatsoever for inaccuracies, misstatements, or omissions related to any Product Information, INCLUDING, without limitation, color accuracy of any PRODUCTS displayed or listed on the site and/or marketplace. YOUR USE OF OR RELIANCE UPON ANY Product INFORMATION, INCLUDING, without limitation, any images of any PRODUCTS displayed on or through the site and/or marketplace, IS ENTIRELY AT YOUR OWN RISK, FOR WHICH WE WILL NOT BE LIABLE.
13.3. Disclaimer – Third Party Content, Integrations, Sites, Products and Services. THE EXPERT does not endorse, is not responsible for, and makes no representations as to any THIRD-PARTY CONTENT, THIRD PARTY, Integrations, Linked sites and/or THIRD-PARTY services (all of the foregoing, “third party products and/OR services”), their content or the manner in which the providers of such THIRD-PARTY products and/OR services handle your data. in addition, THE EXPERT is not and WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF any THIRD-PARTY products and/or services. THE EXPERT is not and shall not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any THIRD-PARTY products and/OR services, or your reliance on the privacy practices or other policies of the providers of such THIRD-PARTY products and/OR Services. Your use of and reliance on any THIRD-PARTY products and/OR ServiceS is at your own risk.
13.4. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE EXPERT BE LIABLE OR OBLIGATED, WITH RESPECT TO THESE TERMS, and any other additional terms (including those referenced herein), THE EXPERT SERVICE (OR ANY PART THEREOF), service CONTENT, PRODUCTS, consultations, AND ANY OTHER MATERIALS PROVIDED BY or on behalf of THE EXPERT, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF THE EXPERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION:
(A) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF THE GREATER OF THE FEES PAID TO The Expert BY YOU under the applicable order WITH RESPECT TO the Products, services, and/or consultations GIVING RISE TO THE CLAIM OR LIABILITY, OR ONE HUNDRED DOLLARS ($100.00);
(B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, or ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES;
(C) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR
(D) FOR ANY MATTER BEYOND THE EXPERT’S REASONABLE CONTROL.
THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THESE TERMS OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE EXPERT DISCLAIMS ALL LIABILITY OF ANY KIND OF THE EXPERT’S LICENSORS AND SUPPLIERS.
13.5. Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the disclaimers, exclusions and limitations set forth in this Section 13 may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
13.6. Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in this Section 13 are fundamental elements of the basis of the agreement between The Expert and you. The Expert would not be able to provide The Expert Service, Service Content, and/or Products on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of The Expert’s suppliers.
14. NOTICE TO CALIFORNIA RESIDENTS
Pursuant to California Civil Code Section 1789.3, The Expert provides users of The Expert Service with the following notice: You may report complaints to the Consumer Information Division of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
15. AVAILABILITY OF THE EXPERT SERVICE
The Expert Service is operated by The Expert in the United States from its offices in New York, NY and Los Angeles, CA. The Expert Service is intended for users who reside in the United States of America. Information describing The Expert Service may be accessible worldwide but this does not mean The Expert Service, or certain portions thereof, are available in your country. If you access and use The Expert Service outside the United States, you do so at your own risk and are responsible for compliance with applicable local laws. The Expert may restrict access to The Expert Service, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of The Expert Service is legal in your country of residence. The Expert Service may not be available or accessible in all languages.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1. Governing Law. These Terms shall be governed in all respects by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety and the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA are expressly excluded from this Agreement. The Federal Arbitration Act and federal arbitration law apply to the agreement to arbitrate by the parties set forth in this Section 16.
16.2. Disputes. Except as otherwise set forth in these Terms, you agree that any dispute between you and The Expert arising out of or relating to these Terms, any Additional Terms, The Expert Service (or any part thereof), any Service Content, and/or the purchase of any Products (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
16.3. Agreement to Arbitrate. In the interest of resolving Disputes between you and The Expert in the most expedient and cost-effective manner, and except as described in Section 16.7, you and The Expert agree that every dispute arising in connection with these Terms will be resolved by binding individual (not class) arbitration (the “Agreement to Arbitrate”). Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This Agreement to Arbitrate includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. THIS AGREEMENT TO ARBITRATE MEANS YOU AND THE EXPERT WAIVE YOUR/ITS RESPECTIVE RIGHTS TO A JURY TRIAL. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of the Agreement to Arbitrate.
16.4. Notice of Arbitration; Instituting Proceedings. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). The Expert’s address for Notice is: email@example.com; Subject Line: Notice of Dispute. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). You and The Expert agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 60 days after the Notice is received by the other party, you or The Expert may commence an arbitration proceeding, as set forth above. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
16.5. Arbitration. Any arbitration between you and The Expert will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Section 16.5. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator mutually agreed on by you and The Expert (provided, if you and The Expert cannot agree within 30 days from commencement of the claim, the arbitrator will be selected in accordance with the AAA Rules); (b) the arbitration will take place at a location within the county you reside or another location mutually agreed on by the parties, but will be conducted solely by telephone, online, or based solely on written submissions (except as set forth below or unless you and we agree otherwise); (c) the arbitration must not involve any witnesses (unless we and you agree otherwise); and (d) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. Disputes that involve a claim of more than $10,000 USD must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
16.6. Arbitration Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you commence arbitration in accordance with these Terms and your claim in total is less than $10,000 USD, The Expert will reimburse the filing fees paid by you, unless the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Likewise, The Expert will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claim is frivolous.
16.7. Exceptions to Arbitration. If you have in any manner violated or threatened to violate any of The Expert’s intellectual property rights, The Expert may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of New York, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts. In addition, despite the Agreement to Arbitrate, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
16.8. Opting-Out of Arbitration. If you do not wish to resolve Disputes by binding arbitration, you may opt out of the Agreement to Arbitrate within 30 days after the date that you agree to these Terms by sending an opt-out notice via email to us at: firstname.lastname@example.org; Subject Line: Arbitration Opt-Out Notice, that specifies: your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once The Expert receives your Opt-Out Notice, the Agreement to Arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 16.10 will govern any action arising out of or related to these Terms. The remaining provisions of this Section 16 will not be affected by your Opt-Out Notice.
16.9. No Class Actions. YOU MAY ONLY RESOLVE DISPUTES WITH THE EXPERT ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THESE TERMS.
16.10. Enforceability; Venue. If the Agreement to Arbitrate is found not to apply to your or our claim, you and The Expert agree that any judicial proceeding will be brought in the federal or state courts located in New York, New York. Both you and The Expert consent to venue and personal jurisdiction there.
16.11. Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of The Expert Service (or any part thereof), Service Content, and/or Products provided or made available by The Expert hereunder must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
Neither the rights nor the obligations arising under these Terms and/or any Additional Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of these Terms and/or Additional Terms must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms and/or any Additional Terms shall not be deemed a waiver of that right. If any term or provision of these Terms and/or any Additional Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and/or any Additional Terms (as applicable) and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in these Terms and/or any Additional Terms (as applicable). The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms and/or any Additional Terms and/or its performance shall be construed as creating a joint venture or agency between The Expert and you. The Expert may delegate the performance of any services hereunder to its affiliates and contractors. These Terms, the Additional Terms, including, but not limited to, the Privacy Notice, Purchase Terms and Conditions, Return Policy, Infringement Policy, and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to you may be provided by email. The headings of Sections of these Terms and the Additional Terms are for convenience and are not to be used in interpreting these Terms and/or the Additional Terms (as applicable). As used in these Terms and any Additional Terms, the word “including” means “including but not limited to.” You agree that neither these Terms nor any Additional Terms will be construed against The Expert by virtue of having drafted them. The official text of these Terms and the Additional Terms (and any notice submitted hereunder or thereunder) will be in English. The parties acknowledge that they require that these Terms and the Additional Terms be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of these Terms and/or any Additional Terms, reference will be made only to these Terms and/or any Additional Terms (as applicable) as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or any other event beyond the reasonable control of such party.
18. QUESTIONS AND ADDITIONAL INFORMATION.
Please feel free to contact us at email@example.com if you have any questions about these Terms.