Terms of Service

Effective Date: 10/6/2020

These Terms of Service (the “Terms”) are a legal agreement between you and Baram International Co. Ltd., d/b/a Dear Dahlia and its corporate affiliates, subsidiaries, and divisions as may change from time to time (collectively, “Dear Dahlia,” “we,” “us,” and “our”). These Terms apply to the Dear Dahlia website (www.deardahlia.com), and the services available through and connected to the website, that are provided in the United States and that include a link to these Terms (together, the “Services”).

You acknowledge and agree that by accessing or using the Services or by uploading or posting any User Content (as defined below) in connection with the Services, you, your heirs, and assigns (collectively "you") are indicating that you have read, understand, and agree to be bound by these Terms, INCLUDING THAT DISPUTES ABOUT THESE TERMS AND THE SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION 14 BELOW, and to comply with all applicable laws and regulations, including applicable export and re-export control laws and regulations. If you do not agree to these Terms, then you must stop accessing or using the Services. The purchase of any Dear Dahlia products or services is subject to a separate Terms of Sale, which will be presented to you during the purchase process.

We may revise these Terms to reflect changes to the Services, our users’ needs, our business priorities, or changes in laws and regulations. We will give you notice of such revisions in accordance with legal requirements. Every time you use the Services, please check these Terms to ensure you understand the terms that apply at that time. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. Your continued use of the Services after any such update constitutes your binding acceptance of such changes. The Terms were most recently updated on the effective date listed at the top of this document.

1. INFORMATION ABOUT US

The Services that link to these Terms are provided by Dear Dahlia from the United States of America. To contact us, please see the “Contact Us” section below.

2. ELIGIBILITY AND SCOPE

To use the Services you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, at least 13 years of age) and able to agree to these Terms. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity). If Dear Dahlia has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.

3. ACCOUNT REGISTRATION AND USE

3.1 Account Registration and Confidentiality. You may be required to create an account to use parts of the Services. If so, during the registration process, you must select a username and password. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you.

3.2 Unauthorized Account Use. You are responsible for notifying us if you become aware of any unauthorized use of or access to your account. To contact us, please see the “Contact Us” section below. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Dear Dahlia will not be liable for any loss, damages, liability, expenses or lawyers’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by Dear Dahlia or a third party due to someone else using your account.

4. OUR PROPRIETARY RIGHTS

The Services are owned and operated by Dear Dahlia and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by Dear Dahlia and its partners, as well as certain third parties, and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws.

You agree to abide by all applicable copyright and other laws. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Dear Dahlia and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Dear Dahlia and such others.

You agree to protect the proprietary rights of Dear Dahlia and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Dear Dahlia or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Dear Dahlia immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights.

All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and Dear Dahlia, at all times be and remain the sole and exclusive property of Dear Dahlia. Any unauthorized use of any materials contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

5. USER CONTENT AND SUBMISSIONS

5.1 User Content and Posts. The Services may enable you to submit, post, upload, or otherwise make available (collectively, "Post") content such as reviews, ratings, pictures, and other content such as videos, questions, comments, ideas, designs, features, plans, and other feedback (collectively, "User Content") that may or may not be viewable by other users.

5.2 Our License to User Content. When you Post User Content on or through the Services you grant Dear Dahlia a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, communicate to the public, disassemble, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. Notwithstanding the foregoing, our use of your personal information shall be governed by the Dear Dahlia Privacy Policy.

5.3 User Content Representations. You acknowledge and agree that all User Content that you Post is your sole responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that Dear Dahlia does not control, and is not responsible for, User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Dear Dahlia for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event, you will cooperate with us in asserting any available defenses.

5.4 User Content Review. You acknowledge and agree that Dear Dahlia and its designees may or may not, at Dear Dahlia’s discretion, pre-screen User Content before its appearance on the Services (but does not assume any obligation to). You further acknowledge and agree that Dear Dahlia reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit, or remove any User Content that is contributed to the Services. Additionally, Dear Dahlia has the right to remove any User Content that violates these Terms or is otherwise objectionable in Dear Dahlia’s sole discretion. You acknowledge and agree that Dear Dahlia does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.

6. LICENSE AND PROHIBITED CONDUCT

6.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services only for your own internal, personal, or non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Services, including those relating to data security and data privacy, such as the Dear Dahlia Privacy Policy, these Terms, and if applicable, the Dear Dahlia Terms of Sale. Dear Dahlia may revoke this license at any time, in its sole discretion. Upon any such revocation, you must promptly destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made in accordance with these Terms or otherwise.

6.2 Prohibited Uses. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:

• post User Content that: (1) harasses, abuses, or threatens any other person, or that contains obscene content; (2) is false, misleading, or inaccurate; (3) degrades or discriminates against others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or any other classification; (4) is indecent, offensive, harassing, violent, hateful, inflammatory, unlawful, harmful, tortious, defamatory, libelous, or invasive of another's privacy; (5) promotes sexually explicit or pornographic material, violence, or any illegal acts; (6) infringes the legal rights of any person or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms; or (7) gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
• use the Services commercially;
• use the Services for benchmarking, or to compile information for a product or service;
• copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, “mirror,” duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms, or with the prior written consent of Dear Dahlia;
• scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any API provided or approved by Dear Dahlia;
• breach the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
• post material that advocates illegal activity or discusses illegal activities with the intent to commit them;
• post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, malware, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, "disabling," "lock out," "metering" device or any malicious code);
• post or do anything that could disable, overburden, or impair the proper working of the Services;
• post material that impedes or otherwise prohibits communication or disrupts user discussion;
• post, utilize or otherwise make available any other party's intellectual property unless you have the right to do so, or remove or alter any copyright, trademark or other proprietary notice contained on the Services;
• post any trade secrets or other confidential information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
• falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody, including use of a false email address;
• solicit personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
• send spam, commercial electronic messages or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Services;
• frame, inline link, or similarly display the Services or any portion of the Services;
• breach these Terms, the Terms of Sale, or any guidelines or policies posted by Dear Dahlia;
• facilitate violations of these Terms or the Dear Dahlia Privacy Policy; and/or
• interfere with any other party’s use and enjoyment of the Services.

In addition to the restrictions on use provided above, the materials on or through the Services are provided with “RESTRICTED RIGHTS.” Use, duplication or disclosure by any federal, state, or local government or authority is subject to further restrictions as set forth in applicable laws and regulations. Use of the materials by such government or authority constitutes acknowledgment of Dear Dahlia’s proprietary rights in them.

7. LEGAL COMPLIANCE

You acknowledge, consent, and agree that Dear Dahlia may access, preserve, and disclose your information and/or any User Content you submit or make available for inclusion on the Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by law or by Dear Dahlia’s Privacy Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms, our Privacy Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; (5) to protect the rights, property, or personal safety of Dear Dahlia, its agents and affiliates, its users, and the public; and/or (6) in connection with the operations of your account. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.

8. PRIVACY

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms.

9. EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as below in Section 10. Accordingly, some of the below limitations may not apply to you. If you are a New Jersey resident, or a resident of another U.S. state that permits the exclusion of these warranties and liabilities, then the limitations in Section 10 specifically do apply to you.

10. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY

TO THE FULL EXTENT PERMITTED BY LAW, THE SERVICES AND ITS CONTENTS, WHETHER PROVIDED BY DEAR DAHLIA, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED, LEGAL OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED. SPECIFICALLY, BUT WITHOUT LIMITATION, DEAR DAHLIA DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DEAR DAHLIA OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT DEAR DAHLIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.

DEAR DAHLIA DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICES, AND DEAR DAHLIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. DEAR DAHLIA WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.

If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This release includes the criminal acts of others.

11. INDEMNITY

TO THE FULL EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD DEAR DAHLIA AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE LAWYERS' FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TERMS OR DEAR DAHLIA PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

12. THIRD-PARTY LINKS AND SERVICES

The Services may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Dear Dahlia is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Dear Dahlia shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

13. MODIFICATION AND TERMINATION

13.1 Modification of Services. Dear Dahlia reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. Dear Dahlia shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.

13.2 Termination. We may, in our sole and absolute discretion, terminate, suspend, or otherwise deny your access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, and as applicable, the Mandatory Arbitration and Class Action Waiver provisions in Section 14. Termination of your account may also include, at Dear Dahlia’s sole discretion, the deletion of your account and/or User Content, and you will not be able to retrieve any information related to your account except as required by applicable law.

14. MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Application. You and Dear Dahlia agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 14 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at Baram International Co. Ltd., d/b/a Dear Dahlia, 12F, Horim Art Center, 317, Dosan-daero, Gangnam-gu, Seoul, Korea, or via email at inquiry@deardahlia.com, Attn: Dear Dahlia Counsel, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Dear Dahlia, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) calendar days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in the Exception section below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of Dear Dahlia shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.

Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS (contact information for JAMS, as well as copies of the JAMS rules and applicable forms, are available at www.jamsadr.com); and (c) Send one copy of the Demand for Arbitration to us at: Baram International Co. Ltd., d/b/a Dear Dahlia, 12F, Horim Art Center, 317, Dosan-daero, Gangnam-gu, Seoul, Korea, or via email at inquiry@deardahlia.com, Attn: Dear Dahlia Counsel.

When you initiate arbitration against us, you are required to pay up to $250 of the filing fee to initiate the arbitration.  To the extent the filing fee for the arbitration exceeds that amount, Dear Dahlia will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Dear Dahlia will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in New York City, New York, United States, and you and Dear Dahlia agree to submit to the personal jurisdiction of any federal or state court in New York City, New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND DEAR DAHLIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.  You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. county (or parish) of your residence or in New York, either party may elect to have such dispute adjudicated in such small claims court. Such election can be made by either party even after the other party initiates an arbitration.  In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless it is unwilling to do so) and not the arbitrator or JAMS.

30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at Baram International Co. Ltd., d/b/a Dear Dahlia, 12F, Horim Art Center, 317, Dosan-daero, Gangnam-gu, Seoul, Korea, or via email at inquiry@deardahlia.com, Attn: Dear Dahlia Counsel with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty calendar (30) days of (a) the Effective Date of these Terms; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Dear Dahlia also will not be bound by them.

Changes to This Section. Dear Dahlia will provide thirty (30) calendar days' notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) calendar day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.

Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.

15. CONTROLLING LAW

Please note that these Terms and their subject matter and its formation shall be construed in accordance with and governed by the laws of the State of New York notwithstanding its conflicts of law principles.

Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of New York City, New York, and you and Dear Dahlia consent to the exclusive jurisdiction of such courts.

16. GENERAL TERMS

16.1 Force Majeure. Under no circumstances shall Dear Dahlia or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.

16.2 No Waiver. If we fail to insist that you perform any obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights and will not mean that you do not have to comply with your obligations. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.

16.3 Severability. Each of the provisions of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining provisions will remain in full force and effect.

16.4 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

16.5 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Dear Dahlia and supersede any prior agreements between you and Dear Dahlia on the subject matter, except as expressly provided herein. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Dear Dahlia without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Dear Dahlia. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.

16.6 Notices. We may deliver notice to you by email, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received by mail or email at the contact information provided directly below.

17. CONTACT US

If you have any questions about these Terms, please email us
at inquiry@deardahlia.com or use the contact details below:

DEAR DAHLIA / BARAM International Co.,LTD

Attn: Legal Team

12F, Horim Art Center

317, Dosan-daero

Gangnam-gu, Seoul, Korea