website terms of use

e.l.f. Cosmetics
Effective as of June 13, 2022

THESE TERMS OF USE CONTAIN A CLASS ACTION WAIVER AS WELL AS AN ARBITRATION PROVISION, WHICH REQUIRES YOU TO ARBITRATE ANY CLAIMS (WITH CERTAIN EXCEPTIONS) YOU MAY HAVE AGAINST E.L.F. COSMETICS, INC. AND ITS AFFILIATES ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND THAT YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY IN ANY FORUM, AS DESCRIBED IN MORE DETAIL BELOW. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AND/OR THE CLASS ACTION WAIVER, AS EXPLAINED BELOW.

Thank you for accessing www.elfcosmetics.com (the “Website”) and/or an e.l.f. Cosmetics mobile application(s) (the “App”).

The Website and App are owned and operated by e.l.f. Cosmetics, Inc., a Delaware corporation (“we” or “e.l.f. Cosmetics”). Our headquarters are located at 570 10th Street, Oakland, CA 94607 USA.

These Terms of Use apply to and govern your use of the Website or the App as well as to any and all purchases of any product from e.l.f. Cosmetics. These Terms of Use apply whether you access or use the Website or any App as a guest or as a registered user. Use of the Website or any App includes accessing, browsing, or registering to the Website or App. Please read these Terms of Use carefully before you start to use the Website or App. These Terms of Use apply every time you access or use the Website or App.

By using the Website or App, you confirm that you accept these Terms of Use and that you agree to comply with them. If you do not agree to these Terms of Use, you must not use the Website or App.

Our PRIVACY NOTICE and any other policies, rules, or guidelines that may be applicable to a particular offer, product, or feature on the Website and/or App are also incorporated into these Terms of Use.

Please note that we update these Terms of Use from time to time, so remember to check back in before each use of the Website or App, as the latest Terms of Use will apply going forward and to any dispute or issue arising after the Terms of Use have been updated.

I. USE OF THE WEBSITE AND/OR APP

The Website and/or App is made available free of charge for your personal use subject to these Terms of Use. You may not use the content of the Website or the App for any commercial purposes whatsoever.

You may use the Website and/or App only for lawful purposes and you may not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else's enjoyment of the Website and/or App. You may not:

• misuse or tamper with the Website and/or App (e.g., hack, introduce viruses, trojans, worms, logic bombs or other technologically harmful material or carry out denial of service attacks etc.);
• use the Website and/or App in any way that breaches any applicable local, national, or international law or regulation;
• use the Website and/or App in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
• use the Website and/or App for the purpose of harming or attempting to harm minors in any way;
• to send, knowingly receive, upload, download, use, or re-use any material which does not comply with our user-generated content guidelines;
• use any robot, spider, crawlers, or other automatic device, process, software, or queries that intercepts, “mines,” scrapes, or otherwise accesses the Website and/or App to monitor, extract, copy, or collect information or data from or through the Website and/or App, or engage in any manual process to do the same; or
• use the Website and/or App to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam).

We may end or restrict your use of the Website and/or App, without warning and without liability to you or any third party. You understand that we have the sole right to determine in our reasonable discretion whether you are engaging in any unauthorized activity and/or violating these Terms of Use.

The Website and/or App is meant for adults. By using this Website and/or App, you are representing that you have reached the age of majority in the state or country in which you reside.

1. AVAILABILITY OF THE WEBSITE and/or app AND ACCESSING THE WEBSITE and/or app

You are responsible for making all arrangements necessary for you to have access to the Website and/or App.

Although we aim to offer you the best service possible, the Website, App, or any content on them, may not always be available or remain uninterrupted. Please note that we may suspend or withdraw or restrict the availability of all or any part of the Website or App for business and operational reasons without notice (e.g., for repairs, maintenance and/or updates). We will attempt to restore the service as soon as we reasonably can. Except where required by applicable law, we will not be liable to you if for any reason the Website and/or App is unavailable at any time or for any period.

We use reasonable efforts to ensure that the Website and the App are free from viruses and other malicious or harmful content. However, we cannot guarantee that your use of the Website and/or App (including any content on either or any Website and/or App accessible from either) will not cause damage to your computer or other device. You should use your own virus protection software. Except where required by applicable law, we are not liable to any person for any loss or damage they suffer as a result of viruses or other malicious or harmful content that they access from or via the Website and/or App.

• CREATING AND SAFEGUARDING YOUR ACCOUNT

To use certain parts of the Website and/or App, you may need to create an account (“Account”). You agree to provide us with accurate, complete, and updated information for your Account. You can access, edit, and update your Account by logging in at https://www.elfcosmetics.com/login. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us using the information in the “Contact Us” section if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.

1. USER GENERATED CONTENT

You agree that we may use your comments, reviews, feedback, suggestions, or questions, and any other submissions disclosed, submitted, or offered by you on or through the Website and/or App (collectively, “Submissions”) without compensation, acknowledgement, or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products and services and creating, modifying, or improving the Website, App, or other products or services. When you make a Submission (other than your personal data which is subject to our Privacy Notice), you grant us a perpetual, worldwide, non-exclusive, royalty-free, transferrable license to use reproduce, distribute, prepare derivative works, and display the Submission in connection with our business, including in order to promote our websites or our business. You also grant us the right to sub-license your content to third parties on the same terms granted by you to us.

By posting or submitting Submissions through the Website and/or App, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for your Submissions. You agree that your Submissions will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described in the preceding paragraph.

Submissions should not include:

• abusive, offensive, or otherwise inappropriate language;
• profanity, blasphemy, spiteful, racist, sexually explicit, sexually gratuitous, or discriminatory comments or content that might be considered to be harassment, abuse, or threats against the personal safety or property of others;
• comments about other reviewers or bloggers;
• remarks that repeat criminal accusations, false, defamatory, or misleading statements;
• material which impersonates others or personal information about anyone, including yourself, such as phone numbers, postal addresses, or credit card numbers;
• spam or advertising; or
• HTML code, computer script, or website URLs.

We, in our absolute discretion, reserve the right to not publish any Submission or remove it, take any appropriate action if deemed necessary, or remove reviews which do not comply with the provisions above.

Please note that the views expressed in Submissions are the opinions of those users and do not represent the views, opinions, beliefs, or values of e.l.f. Cosmetics or any of our companies or affiliates.

1. VIRTUAL MAKEUP TRY-ON TOOL

The e.l.f. Virtual Makeup Try-On Tool uses a photo or live camera feed to show a simulation of how a product may look on the user in the image. e.l.f. Cosmetics does not collect, keep, or disclose the photo, image, and/or video feed, or any data associated with them. e.l.f. Cosmetics does not collect, keep, or disclose any biometric information or biometric data in connection with the e.l.f. Virtual Makeup Try-On Tool. 

By using the e.l.f. Virtual Makeup Try-On Tool and/or any other applications, programs, or technologies that use your camera and/or device, you consent to the use of your camera and/or device to permit the tool to take or use your image and overlay a portion or region of the face in the image with an image of the selected cosmetic product. 

1. ELECTRONIC COMMUNICATIONS

By using the Website and/or App, you agree that we may send you operational messages. You consent to receiving operational electronic communications and notices from us. You agree that any notice, agreement, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Any marketing messages we send to you will be sent in accordance with our Privacy Notice and, with respect to text messages, our SMS Marketing Terms and Conditions. You have the right to opt out of receiving marketing messages at any time. Please see our Privacy Notice (and, with respect to text messages, our SMS Marketing Terms and Conditions) for more information regarding opting out of receiving marketing messages.

• INTELLECTUAL PROPERTY RIGHTS

We are the owner or the licensee of all intellectual property rights in the Website and/or App, and in the material published on it (the “Material”). The Material is protected by copyright laws and treaties around the world. ALL RIGHTS RESERVED.

We do not grant any implied right to you or any other person and do not transfer or assign any ownership or intellectual property interest or title in or to the Website or App (including the Material) (or any part thereof) to you or anyone else. Accordingly, your unauthorized use of the Website and/or App (including any Material) may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes and may result in criminal or civil penalties.

You may not alter, delete, or conceal any copyright or other notices contained on the Website, App, or Material, including notices on any audio/visual material you access, download, transmit, display, print, or reproduce from the Website and/or App.

You may not, nor will you allow any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, or circulate to any third party (including, without limitation, on or via a third-party website), or otherwise use, any Material without our express prior written consent.

All of our trademarks, service marks, and trade names used on the Website and/or App (including e.l.f. Cosmetics and all other names, logos, and icons identifying e.l.f. Cosmetics and its products and services) are proprietary trademarks of e.l.f. Cosmetics, Inc. (or its affiliates) in the U.S., Europe, and other countries. Except as otherwise permitted by these Terms of Use, they may not be used (including, without limitation, as domain names or account identifiers) without our prior express written permission. All other trademarks (including other product and company names) that appear on the Website and/or App are the property of their respective owners, who may or may not be affiliated with or sponsor or endorse us (and who may or may not be endorsed by us).

• DIGITAL MILLENNIUM COPYRIGHT ACT

We respect the intellectual property rights of others and require that the people who use the Website, App, and products do the same. We may terminate the privileges of users who are repeat infringers of intellectual property rights. If you are a copyright owner and believe that any content posted on the Website and/or App infringes upon your copyrights, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):

• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• identification of the copyrighted work claimed to have been infringed;
• identification of the material that is claimed to be infringing and information reasonably sufficient to permit location of the material;
• information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
• a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our DMCA designated copyright agent for notice of claims of copyright infringement on the Website and/or App is our General Counsel, Scott K. Milsten, who can be reached as follows:

e.l.f. Cosmetics, Inc.
570 10th Street
Oakland, CA 94607
Attn: Legal Department
E-mail: DMCA@elfcosmetics.com

1. NO WARRANTY

The Website, the App, and the Material are provided for general information only. They are not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of the content on the Website and/or App.

Although we make reasonable efforts to update the information on the Website and App, we make no representations, warranties, or guarantees, whether express or implied, that the Website, App, or the Material is accurate, complete, or up-to-date. Please note that while we have tried to accurately display the colors and other features of our products, the colors and other features you see will depend on your monitor/screen, and the actual colors and features may vary. Further, we try to keep the Website and/or App AVAILABLE, bug-free, and safe, but you use it at your own risk, and we do not guarantee that the Website and/or App will always be available, safe, secure, or error-free, or that the Website and/or App will always function without disruptions, delays, or imperfections. 

Without limiting the foregoing, the Website, App, and their content are provided “as is” and “as available” without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, accuracy, non-infringement, or warranties that may rise from course of dealing or course of performance or usage of trade.

Applicable law in some locations, such as the State of New Jersey, does not allow the waiver of implied warranties set forth above, so this provision may not apply to you.

No advice or information, whether oral or written, obtained from us or through the Website or the App, will create any warranty or representation not expressly made herein. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 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.

1. LIMITATION OF LIABILITY

To the extent not prohibited by law, you acknowledge and agree that in no event will e.l.f. Cosmetics, its related companies (including any parents, subsidiaries, partners, joint ventures, distributors, administrators, predecessors, successors, or assigns), and each such company’s owners, directors, officers, employees, counsel, representatives, and agents, as well as each of their insurers, co-insurers, reinsurers, and insurance brokers, and any other persons or entities acting by, through, under, or in concert with any of them, whether in the past, present, or future (the “e.l.f. Cosmetics Parties”) be responsible or liable to you or any third party, under any theory of responsibility or liability, for any indirect, special, exemplary, incidental, consequential, or punitive damages (including, but not limited to, procurement of substitute goods or services; loss of data, use, or profits; business interruptions; or any other damages or losses), for any multiplier on or increase to damages, or for any costs or fees (including attorneys’ fees), whether under these terms or otherwise, arising in any way in connection with the Website, the App, these terms of use, or any products procured through the Website, App, or e.l.f. cosmetics, whether arising at law, in equity, or otherwise, and whether based in contract, strict liability, tort (including negligence or otherwise), common law, statute, equity, or otherwise, even if we have been advised of the possibility of such damage, or for any other claim, demand, or damages whatsoever, arising out of or related to your use or inability to use the Website or the App. You specifically acknowledge that the e.l.f. Cosmetics Parties shall not be liable for defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.

Without limitation of the foregoing, and to the extent not prohibited by law, the total liability of the e.l.f. Cosmetics Parties for any reason whatsoever arising out of or related to the use of, or inability to use, the Website, the App, these terms of use, or any products procured through the Website, App, or e.l.f. cosmetics shall not exceed $100, or the amount you paid us, if any, for products purchased through the Website or App, whichever amount is greater. This liability, if any, shall be complete and exclusive. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

Applicable law in some locations, such as the State of New Jersey, does not allow the limitation of liability of certain damages set forth above, including the provisions of this section that limit or exclude special, exemplary, consequential, or punitive damages, or limit or exclude the use of any multiplier on or increase to damages, and limit the liability of e.l.f. Cosmetics or any of the e.l.f. Cosmetics Parties, to the greater of either $100 or the amount paid by you for any products purchased through the Website or App. These limitations or exclusions may not apply to you. The provisions of this section do not apply to the extent, and only to the extent, not permitted by applicable law.

1. force majeure

In no event shall the e.l.f. Cosmetics Parties be DEEMED IN DEFAULT OR OTHERWISE liable to any Member for any delay in or failure to perform due to causes beyond their control, including, without limitation, any act of God, act of war, FIRE, EARTHQUAKE, BLIZZARD, FLOOD, DANGER TO PUBLIC HEALTH OR SAFETY, ACCIDENT, EXPLOSION, CASUALTY, STRIKE, LOCKOUT, LABOR CONTROVERSY, RIOT, CIVIL DISTURBANCE, ACT OF PUBLIC ENEMY, EMBARGO, WAR, LAW, ORDINANCE, REGULATION, LEGAL ORDER (UNLESS CAUSED BY the e.l.f. Cosmetics Parties’ DEFAULT THEREUNDER), FAILURE OR DELAY OF ANY TRANSPORTATION, POWER, OR COMMUNICATION SYSTEM, natural disaster, terrorism, pandemic or epidemic, or any act or omission of a third party.

• INDEMNITY

You agree to indemnify and hold us, our related companies and affiliates, and the e.l.f. Cosmetics Parties, as well as each of their third-party information providers, licensors, contractors, and any other persons or entities involved in the delivery of products, services, or information through the Website or the App, or acting by, through, under or in concert with any of them, whether in the past, present, or future (collectively, “Indemnified Parties”), arising from, in connection with, or relating to, any breach of these Terms of Use by you. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees and litigation expenses of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed through the Website and/or App.

• ENFORCEMENT

You have no reasonable expectation of privacy while using the Website or App because e.l.f. Cosmetics reserves the right to view, monitor, and/or record activity on the Website or App (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of the Website and/or App may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. You shall therefore not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by e.l.f. Cosmetics for use of or with the Website or App. Moreover, you also acknowledge that any breach, threatened or actual, of these Terms of Use by you may cause irreparable injury to e.l.f. Cosmetics and/or its licensors, such injury would not be quantifiable in monetary damages, and e.l.f. Cosmetics and/or its licensors would not have an adequate remedy at law. You therefore agree that e.l.f. Cosmetics and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of these Terms of Use. Accordingly, you hereby waive any requirement that e.l.f. Cosmetics or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to e.l.f. Cosmetics to enforce any provision of these Terms of Use.

• LINKS TO OTHER WEBSITES; LINKS TO THIS WEBSITE AND/OR APP

The Website or App may include links to third-party websites. These links are provided for your information only. We do not control and are not responsible for the content or privacy policies of any linked website, and the inclusion of any link on the Website or App does not imply our endorsement or approval of it. We are not responsible for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites.

You may link to this Website or App, as long as you do so in a way that is non-commercial, is fair and legal, and doesn’t damage or take advantage of our reputation. You may not link in a way that suggests any form of approval or endorsement by us where none exists. The Website or App may not be framed on any other website without our permission.

We reserve the right to withdraw linking permission without notice.

1. GOVERNING LAW

These Terms of Use have been made in and will be construed and enforced solely in accordance with the laws of the state of California; provided, however, that the arbitration provisions herein shall be governed by the Federal Arbitration Act and the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”), as described more fully below. You and e.l.f. Cosmetics also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to these Terms of Use and is hereby disclaimed. A printed version of these Terms of Use and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent as other documents and records originally generated and maintained in printed form. Please contact e.l.f. Cosmetics if you wish to receive a printed copy of these Terms of Use.

• BINDING ARBITRATION AGREEMENT; CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

1. Scope of the Arbitration Agreement.Mindful of the high cost of legal disputes, not only in dollars but in time and energy, both you and e.l.f. Cosmetics agree that any and all disputes, actions, claims, or other controversies concerning or arising in any way out of your use (or lack of use) of, access (or lack of access) to, or a purchase from, the Website, the App, or any desktop or mobile application; the e.l.f. Virtual Makeup Try-On Tool; these Terms of Use; any product or service; and any advertising, promotion, or other communications between you and e.l.f. Cosmetics (collectively, a “Dispute”), whether based in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis, shall be resolved exclusively through final and binding individual arbitration. “Dispute” will be given the broadest possible meaning allowable under law.

This agreement to arbitrate covers and includes threshold questions of arbitrability. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any and all disputes arising out of or relating to the formation, existence, scope, validity, interpretation, applicability, or enforceability of this agreement to arbitrate, or any part of it, or of these Terms of Use, including, but not limited to, any claim that all or any part of this agreement to arbitrate or the Terms of Use is void or voidable. If any party disagrees about whether the foregoing provision (or any portion of this agreement to arbitrate, including without limitation the provisions relating to arbitration) can be enforced or whether it applies to the dispute, the parties agree that the arbitrator will decide that dispute. Notwithstanding the foregoing, however, the parties agree that any issue concerning the validity of the class action waiver below must be decided by a court, and an arbitrator does not have authority to consider the validity of the class action waiver. Both you and e.l.f. Cosmetics understand and agree that we are waiving our right to sue or go to court to assert or defend our rights, except as set forth below. 

2. Exceptions. Notwithstanding the remainder of this binding arbitration agreement, you and e.l.f. Cosmetics agree that the following types of disputes will be resolved in court, unless both you and e.l.f. Cosmetics agree to submit the dispute to arbitration pursuant to this binding arbitration agreement: 

(1) Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual Dispute and not as a class, representative, or consolidated action or proceeding;

(2) Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or

(3) Intellectual property disputes.

For the avoidance of doubt, the waiver of the right to bring claims in or otherwise participate in a class, representative, or consolidated action or proceeding set forth in the class action waiver provision below does not prevent you from seeking public injunctive relief in an individual capacity to the extent otherwise permitted by law.

You and e.l.f. Cosmetics also agree that for disputes or claims where both injunctive relief (including public injunctive relief) and non-injunctive relief are sought, you and e.l.f. Cosmetics will first submit the dispute or claim for non-injunctive relief to arbitration pursuant to this Arbitration and Dispute Resolution; Class Action Waiver section. The arbitrator will not be permitted to grant injunctive relief (unless the parties mutually agree otherwise). Once the arbitration of the dispute or claim for non-injunctive relief has concluded, you and/or e.l.f. Cosmetics may seek the injunctive relief (including the public injunctive relief) in court to the extent permitted by law.

Any litigation in court of the foregoing types of disputes (except for small claims court actions) may be commenced only in a federal or state court located within San Francisco, California, and you and e.l.f. Cosmetics each consent to the jurisdiction of those courts for such purposes. Regardless of whether the foregoing types of disputes in this Exceptions provision are resolved by a court or pursuant to arbitration, you and e.l.f. Cosmetics agree that the dispute is subject to the class action waiver provision set forth below.

3. Informal Dispute Resolution.Either party asserting a dispute shall first try in good faith to resolve it by providing written notice as specified below to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and e.l.f. Cosmetics agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
4. How Arbitration Works.Either party may initiate arbitration of a Dispute, which will be settled by final and binding arbitration, using the English language, administered by AAA under the AAA Rules then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms of Use). Unless you and e.l.f. Cosmetics agree otherwise, including to conduct the arbitration by telephone or videoconference, any arbitration hearing shall take place in San Francisco, California, unless the arbitrator determines that a different location would better serve the convenience of the parties. If you live outside the United States, any arbitration will take place in San Francisco, California. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the AAA Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, e.l.f. Cosmetics will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below). Each party is responsible for his, her, their or its own attorneys’ fees and expenses, and e.l.f. Cosmetics will not pay your attorneys’ fees or expenses except to the extent ordered to do so by the arbitrator. If you prevail in arbitration, however, you will be entitled to an award of reasonable attorneys’ fees and expenses to the extent allowed for under applicable law and ordered by the arbitrator. In the event the arbitrator determines the claim you asserted in the arbitration to be frivolous according to Federal Rule of Civil Procedure 11, or brought for an improper purpose, you agree to reimburse e.l.f. Cosmetics for all fees associated with the arbitration paid by e.l.f. Cosmetics that you otherwise would have been obligated to pay under the AAA Rules. In determining whether an action is frivolous, the arbitrator may consider whether e.l.f. Cosmetics has offered you a full refund of the sum you paid for items you purchased from e.l.f. Cosmetics or has otherwise offered full relief to you in relation to your individual claim. If the arbitrator, upon final disposition of the case, finds your dispute was not frivolous, e.l.f. Cosmetics will reimburse any filing fees that you paid and were not otherwise reimbursed. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms of Use will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms of Use, you and e.l.f. Cosmetics are each waiving the right to trial by jury or to participate in a class action or class arbitration.
5. WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS.To the fullest extent permitted by applicable law, you and e.l.f. Cosmetics each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and e.l.f. Cosmetics AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and e.l.f. Cosmetics EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and e.l.f. Cosmetics agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.

IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.

6. You have the right to opt-out and not be bound by the arbitration provisions and/or the class action waiver set forth in these Terms of Use by sending written notice of your decision to opt-out to:

e.l.f. Cosmetics, Inc.
Attn: Legal Department
570 10th Street
Oakland, CA 94607

The notice must be sent to e.l.f. Cosmetics within 30 days of your agreeing to these Terms of Use. Your written notification must include your name and address, as well as a clear statement that you do not wish to resolve disputes with e.l.f. Cosmetics through arbitration and/or that you do not agree to the class action waiver. If you do not opt out, you shall be bound to arbitrate disputes on an individual basis in accordance with the provisions of this Section XVI. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions and/or class action waiver, e.l.f. Cosmetics also will not be bound by them.

7. Governing Law and Other Terms.This binding arbitration agreement and class action waiver are governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. To the extent state law applies to any aspect of this binding arbitration agreement and class action waiver, or to any disputes and claims that are covered by this binding arbitration agreement and/or class action waiver, the law of the state of California will apply. We will provide notice of any material changes to this binding arbitration agreement and/or class action waiver (which may be satisfied by updating these Terms of Use, unless not otherwise permitted by law), in which case you will have the right to opt out of the arbitration provisions and/or class action waiver within 30 days after such change, consistent with the terms above. Except as set forth above regarding the class action waiver provision, if any portion of these arbitration provisions is deemed invalid or unenforceable, it will not invalidate the remaining portions of these arbitration provisions. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of this binding arbitration agreement, including whether any dispute falls within its scope, as set forth above. However, the parties agree that any issue concerning the validity of the class action waiver above must be decided by a court, as set forth above, and an arbitrator does not have authority to consider the validity of the waiver.

• MISCELLANEOUS

These Terms of Use do not affect your statutory rights or your legal rights, if any, as a consumer.

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

If any provision of these Terms of Use is held to be invalid or unenforceable, that provision shall be construed consistent with applicable law, and the remaining provisions shall be enforced. In the event any provision of these Terms of Use is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, you agree that unless it materially affects the entire intent and purpose of these Terms of Use, the invalidity, voidness, or unenforceability shall affect neither the validity of these Terms of Use nor the remaining provisions herein (except as set forth above with respect to the class action waiver), and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.

Headings are for reference purposes only and in no way define, limit, construe or describe the scope of such section.

Our failure to enforce any provision of these Terms of Use shall not constitute a waiver of that or any other provision.

We may assign these Terms of Use in whole or in part. Moreover, we may delegate our rights and responsibilities or use contractors or agents to fulfill its obligations under these Terms of Use.

These Terms of Use represent the entire agreement between you and us in connection with your use of the Website and/or App, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and e.l.f. Cosmetics with respect to the Website and/or App.

Any rights not expressly granted herein are reserved by e.l.f. Cosmetics. Please note that e.l.f. Cosmetics reserves the right to change these Terms of Use and by which the Website and/or App is extended to you by providing you in writing or electronically a copy of such revised terms (or notice thereof).

We may revise these Terms of Use at any time by updating this page. By using the Website and/or App, you agree to be bound by any such changes. Every time you wish to use the Website and/or App, please check these Terms of Use to ensure you understand the terms that apply at that time. We may update and change the Website and/or App from time to time to reflect changes to our products, our customer’s needs, and our business priorities.

• CONTACT US

If you have any questions, concerns, or complaints about these Terms of Use, please contact us here, at (212) 239-1530 or via physical mail at:

e.l.f. Cosmetics, Inc.
Attn: Legal Department
570 10th Street
Oakland, CA 94607