TERMS OF USE AGREEMENT (Effective as of September 15, 2013)

1. Introduction.

This Terms of Use Agreement ("Terms of Use") sets forth the general terms of use under which Ellie Kai Inc. ("Ellie Kai," "we," "us," or "our") permits access to and use of the Ellie Kai Web site located at elliekai.com and its sub-domains or such other URLs or domain(s) as Ellie Kai determines from time to time (collectively, the "Site"). Please read this Terms of Use carefully before accessing or using the Site. The Site is available for use only if you acknowledge and agree to be bound by the terms and conditions of the Agreement (as hereinafter defined). By accessing or using the Site, you acknowledge acceptance of the terms and conditions of the Agreement. If you do not agree or wish to be bound by the terms and conditions of THE AGREEMENT, you may not access or use the Site. By accessing or using the Site, you hereby acknowledge and agree that (i) you have read understand, and agree to the terms of the Agreement; (ii) the terms and conditions set forth in the Agreement constitute a legal and binding agreement with Ellie Kai; and (iii) the terms and conditions of the Agreement supersedes all prior or contemporaneous agreements regarding access to and use of the Site. The right to access and/or use the Site may be limited further by federal, state, local or jurisdictional laws, rules and regulations.

2. Definitions.

"Agreement" means, collectively, this Terms of Use as amended by Ellie Kai from time to time, the Privacy Policy, and any information available on the Site and incorporated herein by reference.

"Privacy Policy" means the privacy policy for the Site as posted on the Site as amended by Ellie Kai from time to time.

"User(s)" means any person or entity that accesses and/or uses the Site.

3. Eligibility.

A User must be eighteen (18) years of age or older to access or use the Site in any manner. By accessing or using the Site, you are accepting the terms and conditions of the Agreement, and you are representing and warranting to Ellie Kai that (i) you are eighteen (18) years of age or older, (ii) you have the right, authority and capacity to agree to and abide by the terms and conditions of the Agreement, and (iii) you will use the Site in a manner consistent with any and all applicable laws and regulations.

4. Ellie Kai Content.

The contents of the Site including, but not limited to, text, graphics, images, logos, button icons, software and other Ellie Kai content (collectively, "Ellie Kai Content"), are protected under United States of America copyright, trademark and other laws. All Ellie Kai Content is the property of Ellie Kai or its content suppliers. The compilation of all content on the Site is the exclusive property of Ellie Kai and protected by United States of America copyright laws. Unauthorized use of the Ellie Kai Content may violate copyright, trademark and other laws. You must retain all copyright, trademark, service mark and other proprietary notices contained in the original Ellie Kai Content on any copy you make of the Ellie Kai Content. Except as expressly provided for herein, the Ellie Kai Content may not be sold, modified, reproduced, displayed, distributed, or otherwise used in any way. The use of the Ellie Kai Content on any other Web site or in a networked computer environment for any purpose is prohibited. You shall not copy or adapt the HTML code that Ellie Kai creates to generate any Ellie Kai Content or the pages making up the Site, which is also protected by Ellie KaiÕ copyright.

5. Site Restrictions.

You shall not and agree not to use the Site to transmit, distribute, store, manipulate or destroy material, including, without limitation, Ellie Kai Content: (i) in violation of any applicable local, state national or foreign law, rule or regulation, (ii) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or (iii) that is defamatory, obscene, threatening, abusive or hateful. You are also prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following activities: (a) logging into a server which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) attempting to interfere with service to any other User, host or network, including, without limitation, via means of submitting a virus to the Site or any other Ellie Kai owned or operated Web site or server, or overloading, "flooding," "spamming," "mail bombing" or "crashing" the Site or any Ellie Kai owned or operated server. Violations of system or network security may result in civil or criminal liability. Ellie Kai will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting parties involved in such violations.

6. Prohibited Uses.

You agree to use the Site for lawful purposes, only. Ellie Kai specifically prohibits any other use of the Site, and you specifically agree not to do any of the following: (i) post any content on the Site for any competitor of Ellie Kai or post other content that contains links to any site competitive with Ellie Kai; (ii) use the Site in any manner to compete with Ellie Kai; (iii) post or submit to the Site any false, misleading or inaccurate contact information or such information which is not your own or for which you are not authorized to provide; (iv) take any action that imposes an unreasonable or disproportionately large load on the Site's infrastructure; (v) notwithstanding anything to the contrary contained herein, use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site and other than generally available third-party Web browsers (e.g., MicrosoftÕs Internet Explorer and GoogleÕs Chrome); (vi) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Site; (vii) aggregate, copy or duplicate in any manner any of the Ellie Kai Content or information available from the Site; (viii) frame or link to any of Ellie Kai Content or information available from the Site; (ix) access the Site if you are a competitor of Ellie Kai; or (x) access the Site on behalf of or for the benefit of a competitor of Ellie Kai.

7. Accounts.

You may desire to set up a User account on the Site to purchase products or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another personÕs username, password or other account information, or another personÕs name, likeness, voice, image or photograph. You also agree to promptly notify us at contact@elliekai.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Site. In addition, you agree to exit from your account at the end of each session.

8. Product and Pricing Information.

Although Ellie Kai has made every effort to display our products and their colors as accurately as possible, the displayed colors and patterns of the products depend upon the monitor of the User, and Ellie Kai cannot guarantee that the User's monitor will accurately portray the actual colors of the products. In addition, Ellie Kai offers multiple fabric patterns and when our products are made, variations in placement of pattern will occur. Sizing selection and variation of pattern will determine how garments are produced. Products displayed may also from time-to-time be out-of-stock or discontinued, and prices are subject to change. Ellie Kai is not responsible for typographical errors regarding price or any other matter. The return policy for Ellie Kai products is posted on the Site and may be amended, changed, deleted, modified, revised or updated at any time without prior notice to you.

9. The Order Process.

You will have the opportunity to review and confirm your order, including delivery address (if applicable), payment method and product details. We will send to you a notice when we accept your order and our acceptance will be deemed complete and for all purposes to have been effectively communicated to you at the time we send the notice. At such time, the contract for sale will be made and become binding on both you and us. The risk of loss in any goods you purchase and the responsibility to insure them passes to you when the relevant goods are delivered. We reserve the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being canceled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after we have processed your payment but prior to delivery, we will refund your payment.

10. Payments and Billing.

When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards. When you place your order, we estimate the tax and include that estimate in the total for your convenience. The actual tax amount that will be applied to your order and charged to your payment method is based on calculations on the date of shipment, regardless of when the order was placed.

 

11. International Shipping; Customs.

When ordering products for delivery to countries other than the country where the seller is located, you may have to pay import duties and taxes levied. These and any additional charges for customs clearance must be borne by you. For goods shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; manuals, instructions and safety warnings may not be in destination country languages; and the products and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements. You are responsible for assuring the products can be lawfully imported to the destination country. When ordering from us, the recipient is the importer of record and must comply with all laws and regulations of the destination country.

12. Privacy Information.

Your use of the Site is subject to our Privacy Policy. You agree that Ellie Kai may collect non-public personal information about you but shall not share such non-public personal information with unaffiliated third party companies, except where required or permitted by law and the Agreement.

13. Limitation of Liability of Ellie Kai.

The Site and its products or the Ellie Kai Content may contain inaccuracies or typographical errors. Ellie Kai makes no representations about the suitability, accuracy, reliability, completeness or timeliness of the information contained at the Site and its products or the Ellie Kai Content, and the use of same is at your own risk.

In no event shall Ellie Kai and/OR any third party, be liable for any damages whatsoever (including, without limitation to direct, indirect, punitive, incidental, special or consequential damages, lost profits, or damage resulting from lost data or business interruption, arising out of or in any way connected with the use of the Site or with the delay or inability to use the Site or its products, or for any information, products, and services obtained through the Site, or otherwise arising out of the use of the Site whether BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Ellie Kai IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Ellie KaiÕS MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE, INCLUDING, BUT NOT LIMITED TO Ellie Kai CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), SHALL NOT EXCEED ONE AND NO/100 DOLLAR ($1.00).

14. Disclaimer of Warranty.

Ellie Kai DOES NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE OR THAT THE SITE AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE SITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, Ellie Kai IS NOT RESPONSIBLE FOR THOSE COSTS. THE SITE is PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. Ellie Kai, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. Ellie Kai MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SITE and/or PRODUCTS.

15. Links and Other Sites.

The Site may contain links to third-party Web sites. These links, if any, are provided solely as a convenience to you and not as an endorsement by Ellie Kai of the contents on such third-party Web sites. Ellie Kai does not control nor is it not responsible for the legality, accuracy, or inappropriate nature of the content of linked third-party Web sites. If you access linked third-party Web sites, you do so at your own risk. You may not deep link to the Site.

16. Indemnity.

You agree to indemnify, defend (using counsel reasonably acceptable to Ellie Kai), and hold harmless Ellie Kai, its parent, subsidiaries, affiliates, and their respective officers, directors, employees and agents and other representatives from and against any and all claims, damages, losses, costs, expenses, actions or demands, including, without limitation, reasonable legal and accounting fees, alleging or resulting from (i) your use and/or access of the Site, (ii) any information you provide to the Site, (iii) your use of any Ellie Kai Content, and (iv) your breach of the terms and conditions of the Agreement.

17. Amendments.

Ellie Kai reserves the right, in its sole and absolute discretion, to amend, change, delete, modify, revise or update the Agreement at any time without prior notice to you. No amendments, changes, deletions, modifications, revisions or updates to the Agreement shall be made except by a revised posting on the Site by Ellie Kai and any such amendments, changes, deletions, modifications, revisions or updates will be effective immediately upon their publication on the Site. Accordingly, you acknowledge and agree that your continued access to and use of the Site after any such amendments, changes, deletions, modifications, revisions or updates will constitute your acknowledgment and agreement to be bound by such amendments, changes, deletions, modifications, revisions or updates. In the event that you do not agree to any amendments, changes, deletions, modifications, revisions or updates to the Agreement, you must immediately cease and discontinue your use and/or access of the Site. Because of the possibility that the terms of the Agreement could change between your visits to the Site, Ellie Kai recommends that you check these Terms of Use and the Privacy Policy each time you visit the Site.

18. Default and Termination.

You will be in default under the Agreement if you fail to perform the obligations of the Agreement. If you are in default, Ellie Kai hereby reserves the right, at its sole discretion, to pursue all legal remedies available to it, including but not limited to an immediate termination of access to and/or use of the Site, upon any breach by you of the terms and conditions of the Agreement. You agree that action taken under this Section may be effective without prior notice. In the event of termination, however, those sections of the Agreement that provide for continuing obligations on your part shall survive such termination. Moreover, any terms of the Agreement which by their nature are intended to survive the termination of the Agreement shall continue in full force and effect after termination, which terms shall include, but not be limited to, any terms dealing with confidentiality, limitation of liability, indemnification, and proprietary rights. Ellie Kai may immediately terminate the Agreement and UserÕs right to access and/or use of the Site in the event User shall breach the Agreement.

19. Jury Trial Waiver.

You hereby irrevocably, knowingly, and voluntarily waive trial by jury in any action, proceeding, or counterclaim brought by Ellie Kai or its successors in respect to any matter arising out of or in connection with the Site, and/or the ability to access or use the Site, or for any claim for injury or damage, or any emergency or statutory remedy.

20. Export Controls.

The Site may utilize software and other technology, that is subject to export controls of the United States of America. You are solely responsible for compliance with all applicable laws, including, but not limited to export and import regulations of other countries with respect to your use and/or access of the Site. You agree to abide by United States of America export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Site any data, images, text, video clips, audio clips, software, or other information that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of the Agreement.

21. Notices.

Any notice required or permitted to be given hereunder by Ellie Kai may be given by means of a posting on the Site, e-mail to your e-mail address on record with Ellie Kai, or by certified mail, return receipt requested, postage prepaid or nationally recognized overnight courier with confirmation of delivery to your address. Any notice required or permitted to be given hereunder by you to Ellie Kai may be given by means of certified mail, return receipt requested, postage prepaid or nationally recognized overnight courier with confirmation of delivery to Ellie Kai at the following address: Ellie Kai Inc., Attn: Vice President of Marketing and Ecommerce, 5 Parker Road, Osterville, Massachusetts 02655, USA. Each such notice, demand or request shall be deemed to have been received upon the earlier of the actual receipt or refusal by the addressee or three (3) business days after deposit thereof at any main or branch United States post office if sent via certified mail, return receipt requested, postage prepaid, two (2) business day after deposit thereof with the courier if sent via a nationally recognized overnight courier, twenty-four (24) hours after sending via e-mail, and immediately upon posting on the Site.

22. Dispute Resolution.

In the event of any dispute, controversy or claim of any kind or nature arising under or in connection with the Site (the "Dispute"), then upon the written request of either party, each of the parties will appoint a designated representative for the purpose of endeavoring to resolve the Dispute. The representatives will meet as often as the parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. Such representatives will discuss the Dispute and will negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto. The specific format for such discussions will be left to the discretion of the representatives. No formal proceedings for the resolution of the Dispute under this paragraph may be commenced until the earlier to occur of (a) a good faith mutual conclusion by the representatives that an amicable resolution through continued negotiation of the matter in issue does not appear likely or (b) the thirtieth (30th) day after the initial request to negotiate the Dispute. Any Dispute, arising under, out of, in connection with, or in relation to the Site, if not resolved informally through negotiation between the parties, will be resolved by final and binding arbitration conducted in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration association ("AAA") then applicable. Two (2) arbitrators will be selected by the partiesÕ mutual agreement or, failing that, by the AAA. The arbitrators will each be lawyers with at least ten (10) years of legal experience in the fields of software and information technology. The arbitrators will allow such discovery as is appropriate and consistent with the purposes of arbitration in accomplishing fair, speedy, and cost effective resolution of disputes. The arbitration will be conducted under the Federal Rules of Civil Procedure then in effect. Judgment upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof. Any negotiation or arbitration conducted pursuant to this paragraph will take place in Suffolk County, Massachusetts, United States of America, and each party will bear its own costs and expenses with respect to any such negotiation or arbitration, including one-half of the fees and expenses of the arbitrators, if applicable. Other than those matters involving injunctive relief or any action necessary to enforce the award of the arbitrator, the parties agree that the provisions of this paragraph are a complete defense to any suit, action, or other proceeding instituted in any court or before any administrative tribunal with respect to any Dispute.

23. General Information.

The Website is intended for and directed to residents of the United States and all information, advertising, and claims contained on the Website are valid in and applicable only to the United States. Ellie Kai makes no claims that the Site may be lawfully viewed or accessed outside of the United States of America. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside of the United States of America, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The Agreement shall be governed by and construed under the laws of the State of Massachusetts, and of the United States of America, without regard to laws relating to conflict or choice of laws. Any action to enforce or interpret the provisions of the Agreement shall be brought in the applicable state or federal court sitting in, or with jurisdiction over, Suffolk County, Massachusetts, United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. If any provision of the Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. The parties agree that the Agreement will not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel of one of the parties. No waiver of any term of the Agreement shall be deemed a further or continuing waiver of such term or any other term. Ellie Kai may assign its rights and obligations under the Agreement to any individual or entity at any time and without prior notice. You agree not to resell or assign your rights or obligations under the Agreement. You also agree not to make any unauthorized commercial use of the Site. Titles, captions, and headings contained in the Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of the Agreement or the intent of any provision thereof. Time is of the essence of the Agreement. There shall be no third party beneficiaries of the Agreement. Questions or comments regarding the Agreement should be directed to Ellie Kai at contact@elliekai.com.