LAST UPDATED – May 2, 2022
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST AESTHETIC ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. We will also notify you, either through the Platform user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Platform will be effective immediately. Your continued use of the Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms, you will not access, browse, or use (or continue to access, browse, or use) the Platform.
Aesthetic provides a platform for Users, including artists (“Creators”) and collectors (“Collectors”), to create and participate in online communities (“Communities”). Among other things, Creators can use Aesthetic to mint NFTs (as defined below) enabled by Smart Contracts (as defined below), and Users can offer, sell, and purchase (each a “Transaction”) NFTs, including as part of such Communities.
a) Smart-Contract Enabled. “NFT” in these Terms refers to a non-fungible token that uses smart contracts on a blockchain (“Smart Contracts”). A blockchain provides an immutable ledger of all transactions that occur on the blockchain. This means that NFTs are outside of the control of any one party, including Aesthetic, and are subject to many risks and uncertainties. We neither own nor control any blockchain network, the Smart Contracts connected to Communities, your browser, or any other third party site, product, or service (e.g., MetaMask) that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties. You understand that your public address on the blockchain will be made publicly visible whenever you engage in a Transaction on the Platform.
b) Noncustodial. While Aesthetic offers a platform for buying and selling NFTs, it does not buy, sell, or ever take custody or possession of any NFTs. The Platform facilitates a User’s creation, purchase and collection of NFTs, but neither Aesthetic nor the Platform are custodians of any NFTs. The User understands and acknowledges that the Smart Contracts do not give Aesthetic custody, possession, or control of any NFTs or cryptocurrency at any time for the purpose of facilitating Transactions on the Platform. You affirm that you are aware and acknowledge that Aesthetic is a non-custodial service provider and has designed the Platform to be directly accessible by the Users without any involvement or actions taken by Aesthetic or any third-party. Aesthetic facilitates Transactions between the Users on the Platform but is not a party to any agreement between any sellers, buyers, Creators, Collectors, and other Users. Aesthetic cannot make any representation or guarantee that Creators or Users will achieve any particular outcome as the result of listing their NFTs or engaging in any other Transaction on the Platform.
b) Member Account, Password, and Security: You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Aesthetic of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Platform. Aesthetic will not be liable for any loss or damage arising from your failure to comply with this section.
c) Connecting your Wallet: In order to participate as a Creator or Collector or in a Community on the Platform, you must connect your account to your digital wallet supported on MetaMask or another wallet extension or gateway as allowed on the Platform. Such digital wallets allow you to purchase, store, and engage in Transactions using the native Ethereum cryptocurrency (ETH) or another cryptocurrency as supported and allowed on the Platform. Aesthetic will not be liable for any loss or damage arising from your use of a digital wallet or cryptocurrency in a manner not supported or allowed on the Platform.
d) Modifications to the Platform: Aesthetic reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that Aesthetic will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform.
e) e) Compliance with laws: You must comply with all applicable laws, rules and regulation when using the platform. It is your responsibility to consult with appropriate legal counsel to ensure your use of the platform is in compliance with all laws, rules and regulations. Aesthetic has no duty nor responsibility to review or advise about the legality of your use of the platform, content or NFTs.
When using the Platform, you will not directly or indirectly:
a) Creator Rights
The Creator owns all legal right, title, and interest in all intellectual property rights of the content underlying the NFTs minted by the Creator on the Platform (such underlying content, the “Digital Content”), including but not limited to copyrights and trademarks in the Digital Content. As the copyright owner, the Creator has the right to reproduce, prepare derivatives of, distribute, and display or perform the Digital Content.
The Creator hereby acknowledges, understands, and agrees that launching, offering, or selling such NFTs on the Platform constitutes an express representation, warranty, and covenant that the Creator (a) has not launched, offered, or sold another identical cryptographic token, and (b) will not, and will not cause another to, launch, offer, or sell another cryptographic token, in each case representing a digital collectible for the same Digital Content underlying such NFTs, unless the NFT drop openly discloses that the NFTs being distributed are not unique.
The Creator expressly represents and warrants that its Digital Content on the platform and underlying any NFTs launched, offered, or sold on the Platform contain only original content otherwise authorized for use by the Creator, and do not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use. The Creator further represents and warrants that it has permission to incorporate the unoriginal content, to the extent such permission is legally required.
b) Collector Rights; Creator Terms NFTs on the Platform that a Collector purchases or receives, and the intellectual property rights of the content underlying such NFTs, are subject to separate license or other terms granted by the Creator (“Creator Terms”), and you acknowledge and agree that your rights to any such NFTs is solely as set forth in such Creator Terms. As a Creator, you acknowledge that you are solely responsible for the Creator Terms that you associate with any NFTs and the enforcement of such Creator Terms.
c) Platform Content, Software and Trademarks: You acknowledge and agree that the Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Aesthetic, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Aesthetic from accessing the Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of Aesthetic, our Affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Aesthetic.
The Aesthetic name and logos are trademarks and service marks of Plato Design, Inc. (collectively the “Aesthetic Trademarks”). Other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Aesthetic. Nothing in these Terms or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Aesthetic Trademarks displayed on the Platform, without our prior written permission in each instance. All goodwill generated from the use of Aesthetic Trademarks will inure to our exclusive benefit.
d) Third Party Content: Under no circumstances will Aesthetic be liable in any way for any NFTs, Digital Content, or any other content or materials (including Smart Contracts) of any third parties (including Users), including, but not limited to, (i) for any errors or omissions in any content or materials, (ii) for infringement or violation of intellectual property or other rights in relation to such content or materials, (iii) for any promises, purported promises, or commitments made by other Users, or (iv) for any loss or damage of any kind incurred as a result of the use of any such content or materials or as a result of reliance on any such promises or commitments. You acknowledge that Aesthetic does not pre-screen content, but that Aesthetic has the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, Aesthetic has the right to remove any content (and to terminate any licenses granted with respect thereto) that is deemed by Aesthetic, in our sole discretion, to violate these Terms or otherwise be objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any NFTs, including any reliance on the accuracy, completeness, or usefulness of such content.
e) User Content Transmitted Through the Platform: With respect to the NFTs, Digital Content, or any other content or materials (including Smart Contracts) you upload through the Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, or otherwise have all necessary rights under applicable law to all materials incorporated in the User Content to engage in Transactions. You hereby grant Aesthetic and its Affiliates (as defined below) and their successors a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, transmit and otherwise use your User Content in connection with the operation of the Platform or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed. The foregoing licenses include, without limitation, the express rights to: (i) display or perform the Digital Content underlying such NFTs, on the Platform, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) index the Digital Content in electronic databases, indexes, and catalogues; and (iii) host, store, distribute, and reproduce one or more copies of such Digital Content within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or cause, direct, or solicit others to do so. For purposes hereof, “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with Aesthetic. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.
Any questions, comments, suggestions, ideas, feedback or other information about the Platform (“Submissions”), provided by you to Aesthetic are non-confidential and Aesthetic will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Aesthetic may preserve User Content and may also disclose such content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Aesthetic, its Users and the public. You understand that the technical processing and transmission of the Platform, including User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
f) Copyright Complaints: Aesthetic respects 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 Aesthetic of your infringement claim in accordance with the procedure set forth below.
Aesthetic 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. A notification of claimed copyright infringement should be emailed to Aesthetic’s Copyright Agent at [email protected] (Subject line: “DMCA Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
g) Counter-Notice: If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Aesthetic will send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
h) Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Aesthetic has adopted a policy of terminating, in appropriate circumstances and at Aesthetic's sole discretion, Users who are deemed to be repeat infringers. Aesthetic may also at its sole discretion limit access to the Platform and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
i) User Agrees to Cooperate with Aesthetic
Creator expressly agrees to refund to the Collector and/or Aesthetic, at Aesthetic’s direction, the entire portion of Fees (as defined below) received from the sale of any NFTs that was subsequently removed from the Platform pursuant to an effective DMCA request to which the Creator failed to timely submit an effective DMCA Counternotification. Aesthetic will not be held liable to any User for removing allegedly infringing works from the Platform or otherwise fulfilling its legal obligations under the DMCA.
Creators, Collectors, and all Users expressly agree to cooperate and timely respond to Aesthetic’s investigations, requests, and inquiries related to DMCA disputes or allegations of infringement.
Fees. You agree and understand that all fees, commissions, and royalties (“Fees”) charged by Aesthetic for Transactions will be transferred, processed, or initiated directly through one or more of the Smart Contracts on the blockchain network at the rate provided in the applicable Smart Contract. If you are a Creator, unless the Fees are separately mutually agreed upon in writing between you and Aesthetic, you will be notified of the applicable Fees via the user interface of the Platform at the time of your minting of the applicable NFTs.
With respect to any Fees which are to be transferred to a Creator with respect to any NFTs, Aesthetic is not responsible for collecting any Fees for transactions occurring outside of the Platform. As a Creator, you irrevocably release, acquit, and forever discharge Aesthetic and its Affiliates and its and their officers and successors of any liability for Fees or fines related to transactions outside of the Platform.
All Transactions on the Platform are facilitated by Smart Contracts existing on the blockchain. The blockchain network requires the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the blockchain network, and thus every Transaction occurring on the Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Aesthetic. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, or other Transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.
Taxes. Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority and associated with your use of the Platform (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any NFTs).
a) Indemnity and Release: You agree to defend, release, indemnify and hold Aesthetic and its Affiliates and their officers, employees, directors, service providers, licensors, and agents (collectively, “Aesthetic Parties”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform (including any of your Promotions on the Platform), any User Content (including any Smart Contracts you transfer or provide to the Platform), your connection to the Platform, your violation of these Terms or your violation of any rights of another. You further agree that Aesthetic shall have control of the defense or settlement of any third party claims. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Aesthetic Party from or against any liability, losses, damages or expenses incurred as a result of gross negligence or willful misconduct of such Aesthetic Party. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
b) Disclaimer of Warranties: Transactions and other operations on the Platform utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the blockchain (i.e., "forks"), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or NFTs, or lost opportunities to buy or sell NFTs. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT AESTHETIC PARTIES WILL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU IF (A) YOU ARE UNABLE TO LOCATE OR USE YOUR CREDENTIALS, (B) YOUR RIGHTS TO ANY NFTS, DIGITAL CONTENT ARE TERMINATED OR (C) ANY THIRD PARTY MAKES ANY CLAIM AGAINST YOU IN RELATION TO ANY NFTS, DIGITAL CONTENT, INCLUDING ANY CLAIM OF INFRINGEMENT OR VIOLATION OF INTELLECTUAL PROPERTY OR OTHER RIGHTS. THE AESTHETIC PARTIES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE AESTHETIC PARTIES MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS.
c) Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE AESTHETIC PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, LOSS IN VALUE OF ANY NFTS, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE AESTHETIC PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND PLATFORMS RESULTING FROM ANY NFTS, GOODS, DATA, INFORMATION OR PLATFORMS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL AESTHETIC PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID AESTHETIC IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
d) Beta Features. Certain features on the Platform, including the Platform itself, may be offered while still in “beta” form (“Beta Features”). Aesthetic will utilize reasonable efforts to identify the Beta Features by labeling on its Platform. By accepting these Terms or using the Beta Features, you understand and acknowledge that the Beta Features are being provided as a “beta” version and made available on an “as is” or “as available” basis. The Beta Features may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA FEATURES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Features.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS OF PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
You agree that Aesthetic, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if Aesthetic believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Platform may be referred to appropriate law enforcement authorities. Aesthetic may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Aesthetic may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, you agree that Aesthetic will not be liable to you or any third party for any termination of your access to the Platform.
You agree that you are solely responsible for your interactions with any other Users, Creators, and Collectors in connection with the Platform and Aesthetic will have no liability or responsibility with respect thereto. Aesthetic reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Platform.
These Terms (together with the terms incorporated by reference herein) constitute the entire agreement between you and Aesthetic and govern your access and use of the Platform, superseding any prior agreements between you and Aesthetic with respect to the Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Aesthetic agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of Aesthetic to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign the Terms without the prior written consent of Aesthetic, but Aesthetic may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Aesthetic may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Platform.
Under California Civil Code Section 1789.3, Users of the Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Plato Design, Inc., 340 S Lemon Ave #2702, Walnut, CA 91789.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
1) Agreement to Arbitrate This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Aesthetic, whether arising out of or relating to these Terms (including any alleged breach thereof), the Platform, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Aesthetic are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
2) Prohibition of Class and Representative Actions and Non-Individualized Relief a) YOU AND AESTHETIC AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND AESTHETIC AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
3) Pre-Arbitration Dispute Resolution a) Aesthetic is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Aesthetic should be sent to 340 S Lemon Ave #2702, Walnut, CA 91789 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Aesthetic and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Aesthetic may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Aesthetic or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Aesthetic is entitled.
4) Arbitration Procedures Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. a) Unless Aesthetic and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Aesthetic agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
5) Costs of Arbitration a) Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Aesthetic will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Aesthetic will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Aesthetic will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
6) Confidentiality a) All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
7) Severability a) If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
8) Future Changes to Arbitration Agreement a) Notwithstanding any provision in these Terms to the contrary, Aesthetic agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Platform, you may reject any such change by sending Aesthetic written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Please contact us at [email protected] to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Platform.