Terms of service

Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Soma Platform, you agree to comply with and be bound by these Terms.

Please note: Section 14 of these Terms contains an arbitration clause and class action waiver that applies to all Soma Customers. It affects how disputes with Soma are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.

Thank you for using Soma!

These Terms constitute a legally binding agreement ("Agreement") between you and Soma (as defined below) governing your access to and use of the Soma website, including any subdomains thereof, and any other websites through which Soma makes its services available (collectively, "Site") and all associated services (collectively, "Soma Services"). The Site and Soma Services together are hereinafter collectively referred to as the “Soma Platform”. All other terms and policies applicable to your use of the Soma Platform are incorporated by reference into this Agreement and can be accessed via the Soma Platform.

When these Terms mention “Soma,” “we,” “us,” or “our,” it refers to Kroma Salon Inc., located at 2130 King Road, King City, Ontario L7B 1L5.

Our collection and use of personal information in connection with your access to and use of the Soma Platform is described in our Privacy Policy.

Any and all payment processing services through or in connection with your use of the Soma Platform (“Payment Services”) are provided to you by Soma or one or more Soma entities (individually and collectively, as appropriate, “Soma”) as further set out in these Terms.

Customers (as defined below) alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their access to and use of the Some Platform and any Products thereof (as defined below).

1. Scope of Soma Services

1.1 Soma Platform. The Soma Platform is an online store that enables visitors (“Customers”) to view and purchase showerheads, filters and, from time to time, other products (“Products”) sold by Soma. Customers are individuals or Business Entities (defined below) viewing and purchasing Products on the Soma Platform. Customers may use the Soma Platform to learn more about Products, including product descriptions, specifications, pricing, promotions, offers, shipping charges, transit times and availability (“Materials”).

1.2 Accuracy of Information. Soma has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Products and (ii) the truth, accuracy, consistency or stability of any Products or Materials. Occasionally there may also be information on the Soma Platform that contains typographical errors, inaccuracies and omissions that may relate to any Materials. Soma reserves the right to correct any errors, inaccuracies and omissions, and to change or update any Materials if any information is incorrect at any time and without prior notice (including after you have submitted your order). While Soma has made every effort to display as accurately as possible the colors and images of Products that appear on the Soma Platform, Soma cannot guarantee that your computer monitor's display of any color will be accurate. You should always exercise due diligence and care when deciding whether to purchase and use Products, or to rely on any Materials in making purchasing decisions.

1.3 No Obligation to Update. While Soma uses reasonable efforts to include accurate and up-to-date information on the Soma Platform, Soma makes no warranties or representations as to the accuracy of any Soma Content on the Soma Platform or on any Products. Soma assumes no liability or responsibility for any errors or omissions in the Soma Content. Notwithstanding the above, Soma undertakes no obligation to update, amend or clarify any Materials on the Soma Platform, including, without limitation, pricing information, except as required by law. No specific update or refresh date applied to the Soma Platform or any parts thereof shall be taken to indicate that all information on the Soma Platform has been modified, corrected or updated.

1.4 Translations. To assist Customers who speak different languages, the Soma may be translated, in whole or in part, into other languages. Soma cannot guarantee the accuracy or quality of such translations and Customers are responsible for reviewing and verifying the accuracy of such translations. The Soma Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and non-infringement.

1.5 Third-Party Links. The Soma Platform may contain links to third-party websites, resources, services or products (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Soma is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Soma of such Third-Party Services.

1.6 Availability of Soma Platform. Due to the nature of the Internet, Soma cannot guarantee the continuous and uninterrupted availability and accessibility of the Soma Platform. Soma may restrict the availability of the Soma Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Soma Platform. Soma may improve, enhance and modify the Soma Platform and introduce new Soma Services from time to time.

1. Eligibility and Use of the Soma Platform

2.1 Access and Use. In order to access and use the Soma Platform, you must be (i) an individual at least 18 years old or (ii) a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts (“Business Entity”). If you are not yet of legal age to form a binding contract, then you must get your parent or legal guardian to read these Terms and agree to them for you before they use the Soma Platform for your benefit. If you are a parent or legal guardian and you provide your consent to your child's use of the Soma Platform or any Soma Services, then you agree to be bound by these Terms with respect to your child’s use of the Soma Platform.

2.2 Pre-requisites for Some Uses. Soma may make access to and use of the Soma Platform, or certain areas or features of the Soma Platform, subject to certain conditions or requirements, such as completing a verification process, registration process, or meeting specific eligibility criteria.

2.3 Additional Terms and Conditions. The access to or use of certain areas and features of the Soma Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the Soma Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Soma Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions. For example, some offers and promotions may be subject to separate terms and conditions in addition to these Terms.

2.4 Third-Party Terms and Conditions. Some areas of the Soma Platform may implement other services, including payment services such as Apple Pay, Shop Pay and Google Pay, social media integrations to facilitate payment processing, and Shopify integrations for Site management. Your use of these additional services is subject to the additional terms of service and privacy policies applicable to each service.

1. Modification of these Terms

Soma reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Soma Platform. Changes to these Terms shall be effective upon posting, and you understand and agree that if you use the Soma Platform after the date on which the Terms have changed, Soma will treat your access to or use of the Soma Platform as acceptance of the revised Terms. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. If you do not terminate your Agreement, your continued access to or use of the Soma Platform will constitute acceptance of the revised Terms.

1. Content

4.1 Soma Content. You may access and view any content that Soma itself makes available on or through the Soma Platform, including proprietary Soma content, Materials and any content licensed or authorized for use by or through Soma from a third party ("Soma Content").

4.2 Soma Intellectual Property. The Soma Platform and Soma Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of Canada and other countries. You acknowledge and agree that the Soma Platform and Soma Content, including all associated intellectual property rights, are the exclusive property of Soma and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Soma Platform or Soma Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Soma used on or in connection with the Soma Platform and Soma Content are trademarks or registered trademarks of Soma in Canada and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Soma Platform and Soma Content are used for identification purposes only and may be the property of their respective owners.

4.3 No Exploitation. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Soma Platform or Soma Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Soma or its licensors, except for the licenses and rights expressly granted in these Terms.

4.4 Limited License to View. Subject to your compliance with these Terms, Soma grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) use the Soma Platform on your personal device(s); and (ii) access and view any Soma Content made available on or through the Soma Platform and accessible to you, solely for your personal use.

1. Orders and Payment Terms

5.1 Soma Order Process. Customers may place orders by selecting the quantity of Products that they would like to purchase and placing them in the shopping cart. To submit an order, Customer’s must review their shopping cart and then proceed to checkout. During the checkout process, Customer must provide complete and accurate personal and billing information for Soma to process the order. Once the Customer has completed the checkout process, the order will be submitted to Soma for approval and confirmation. Orders will not be accepted and are not binding on Soma until accepted by Soma (“Accepted Order”). Orders placed after 5:00 PM (EST) on weekdays or on weekends may not be accepted until the next business day. Once an order is accepted by Soma, Customer will receive an email confirmation summarizing the contents of the Accepted Order, delivery tracking information and payment obligations of such order. Once the Accepted Order has been shipped, Customer will receive a shipping confirmation email with a  tracking identification number to confirm the Order’s delivery date and time. Payment of Fees (defined below) shall be due immediately upon submitting an order to Soma on the Soma Platform. Soma may, in its sole discretion, choose to invoice and bill parts of an order separately.

5.2 Product Pricing. Soma may charge fees to Customers ("Fees") in consideration for the use of the Soma Platform, in connection with the processing of any orders, or for delivery and shipment of any Products in an order. All prices listed on the Soma Platform are indicated as an invitation to treat, without prejudice, and are not contractually binding. Terms of payment are within Soma's sole discretion. You are responsible for paying any Fees that you owe to Soma immediately upon submitting any order to Soma. Except as otherwise provided in these Terms or as applicable to an individual Product, all Fees are non-refundable.

5.3 Sales Taxes. Any applicable Fees (including any applicable Taxes) will be displayed to Customers prior to submitting an order on the Soma Platform. Soma reserves the right to change Fees at any time by posting such changes on the Soma Platform. Such Fee changes will not affect any Accepted Orders made prior to the effective date of the fee change.

5.4 Adjustments to Product Information. Soma reserves the right to make adjustments to the Soma Platform with regards to the availability of any Products for purchase, pricing, offers and discounts (if any) due to changing market conditions, product discontinuation, manufacturer price changes, errors in advertisements and other extenuating circumstances.

5.5 Shipping and Handling. All orders may have additional shipping and handling charges, which may vary by the quantity of Products ordered, total package weight and the shipping location of the Customer. Soma will deliver all Accepted Orders to the shipping address provided in the Customer’s order submission. Customers are solely responsible for ensuring that any shipping and billing information submitted on the Soma Platform is true and correct.

5.6 Title and Loss. Title to Products being purchased is retained by Soma until Soma receives Fees from Customer for an Accepted Order. Once Soma has received Fees for an Accepted Order from Customer, title passes to the Customer and any loss or damage to Products that occurs during shipping shall solely be Customer's responsibility.

5.7 Exporting Products. If Products are being purchased for the purpose of export outside of Canada, the Customer shall be solely responsible for identifying and obtaining any required licenses, permits, or registrations for any post-purchase activities they wish to engage in. In addition, manufacturers' warranties for exported Products may vary or even be null and void for Products exported outside Canada. Soma shall not be liable to Customer for any use or activity mentioned within this Section 5.7.

1. Returns, Exchanges and Refunds

We understand that not every Product purchased from Soma will you’re your exact needs – whether the finish didn’t match your other fixtures or the showerhead didn’t fit your specific application – we’ve got you covered with our 30-day hassle-free return policy.

6.1 Returns. Within 30 days of receiving an order (“Return Period”), Customer may request a return or refund for any Product by visiting [INSERT URL] on the Soma Platform and submitting a return authorization form. Once the Customer has completed the return authorization form, a return request (“Return Request”) will be created and submitted to Soma for approval and confirmation. If Soma approves the Return Request, Soma will email the Customer to confirm the approval and provide the Customer with a return shipping label. Customer is solely responsible for ensuring that the returned Products are delivered to Soma prior to the expiration of the Return Period.

6.2 Acceptance of Returns. Return Requests will not be accepted and are not binding on Soma until Soma has had the opportunity to physically inspect any returned Products and has accepted the Return Request in writing by email to Customer (“Accepted Return”). Returns will not be accepted for Products that, in Soma’s sole discretion, show signs of tampering, abuse, use or damage. Any Products being returned must include all components, instructions and packaging. Any returns made that are missing parts or the original packaging are only eligible for a partial return, the amount of which shall be determined by Soma in its sole discretion. Customer is responsible for the condition that Soma receives the returned Products in, and are advised to package the returned Products inside of a secure shipping box so that the Products are not damaged in transit.

6.3. Alternate Return Policies. Please note that some Products may have alternate return policies, as described in any Materials, the product description or on the Product packaging itself. Where an alternative return policy is applicable, the alternative return policy shall take precedence over the standard 30-day hassle-free return policy described in these Terms.

6.4 Defective Products. In the event that Customer receives a defective Product (including Products with manufacturing defects and Products with a broken seal) or some Products or parts thereof are missing upon delivery of Customer’s order (“Improper Orders”), Customer may request a return or exchange for any parts of the Improper Order by contacting Soma by email at hello@somathebrand.com (“Order Modification Request”). The Customer shall submit the Order Modification Request within 30 days after receipt of such Improper Order or such other time if the Product has any applicable warranty (“Improper Order Periods”), and by providing the following information: Customer’s full name, order number, Products or items that are damaged or missing from the order, pictures and videos of the defect or damage (if applicable) and a brief description of the issue. Soma may initiate an investigation of any Order Modification Request.

6.5 Remedy for Defective Products. Upon Soma completing its investigation pursuant to Section 6.4 and being satisfied, in its sole discretion, that the Order Modification Request is true and accurate, Soma may, and only upon Soma’s receipt of the Improper Order, offer the Customer: (i) a purchase credit for future orders on the Soma Platform, (ii) offer to deliver the same items to Customer again or any parts thereof at no cost to the Customer, or (iii) issue a full refund for such Improper Order, including any shipping costs. Soma will not accept requests to initiate a refund or return after the expiration of applicable time periods described in these Terms, unless Soma provides written consent to initiate a return or refund outside of such time periods. If Soma approves an Order Modification Request for an Improper Order, Soma will email the Customer to confirm the approval and provide the Customer with a return shipping label at no cost to the Customer. Customer is solely responsible for ensuring that the Improper Order is delivered to Soma prior to the expiration of the Improper Order Periods.

6.6 Shipping Policy. While Soma currently only delivers orders to registered addresses in Canada, in some circumstances, international shipping may be made available as well. Please contact Soma for more information on international shipping rates and whether or not it is available in your jurisdiction. Soma reserves the right to cancel any order where Soma chooses not to fulfil shipment. Prior to submitting an order on the checkout page, Customer will be required to input their shipping address and will receive an estimate of shipping costs. Orders placed before 5:00 pm (EST) are typically shipped the same day, but in most cases, orders are typically shipped on the next business day. Where Soma does not have any Products in an order in stock, Soma will ship the Products that are available and ship the out of stock Products as soon as they become available. Where two shipments are required due to a Product in an order being out of stock, Soma agrees to pay for the additional shipping expense. While Soma may provide an estimated shipping time on the checkout page, no shipping estimate is intended to be a guarantee of when Customer can expect to receive its order.

6.7 Modification and Cancellations. Once a Customer has submitted an Order, there is no guarantee that Customer will be able to cancel or modify such order. If the Customer requests a modification or cancellation of an order prior to receiving the shipping confirmation email (See Section 5.1 on Soma’s Order Process) (“Order Modification Period”), Soma may attempt to modify or cancel such order, but at no time shall Soma be obligated to modify or cancel any order. After the expiration of the Order Modification Period, Customer may not make an order modification or cancellation request. Instead, Customer must wait until they receive the order and then request a refund in accordance with Section 6.1.

 

6.8 Option to Cancel or Refund. Soma reserves the right to cancel, amend and/or refund orders placed without prior consultation.

1. Payment of Fees and Order Cancellation

7.1 Total Fees Due on Checkout. All applicable fees, including applicable Fees, shipping and handling fees and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to submitting your order on the Soma Platform. You agree to pay the Total Fees in connection with any orders you place on the Soma Platform.

7.2 Soma’s Option to Cancel. In certain circumstances, Soma may decide, in its sole discretion, that it is necessary to cancel an order and initiate corresponding refunds. This may be (i) where Soma does not have any Products in an order in stock; (ii) where Soma believes in good faith, while taking the legitimate interests of all parties into account, this is necessary to avoid significant harm to Soma, other Customers, third parties or property, or (iii) for any of the reasons set out in these Terms.

1. Taxes

You understand that any appropriate governmental agency, department and/or authority ("Tax Authority") where you are located may require Taxes to be collected from Customers on Fees, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these Taxes may be required to be collected and remitted as a percentage of the Fees set by Soma ("Taxes"). Customer is solely responsible for sales and all other Taxes associated with any order.

1. Prohibited Activities

9.1 Compliance with Law and Our Terms. You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Soma Platform. In connection with your use of the Soma Platform, you will not and will not assist or enable others to:

• breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms and policies;
• use the Soma Platform or Soma Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Soma’ endorsement, partnership or otherwise misleads others as to your affiliation with Soma;
• copy, store or otherwise access or use any information contained on the Soma Platform in any way that is inconsistent with Soma’ Privacy Policy or these Terms or that otherwise violates the privacy rights of third parties;
• use the Soma Platform in connection with the distribution of unsolicited commercial messages ("spam");
• misuse or abuse the Soma Platform or any Soma Services provided thereof as determined by Soma in its sole discretion.
• use, display, mirror or frame the Soma Platform or Soma Content, or any individual element within the Soma Platform, Soma name, any Soma trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Soma Platform, without Soma' express written consent;
• dilute, tarnish or otherwise harm the Soma brand in any way, including through unauthorized use of Soma Content, registering and/or using Soma or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Soma domains, trademarks, taglines, promotional campaigns or Soma Content;
• use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Soma Platform for any purpose;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Soma or any of Soma providers or any other third party to protect the Soma Platform;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Soma Platform;
• take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Soma Platform;
• export, re-export, import, or transfer Products except as authorized by Canadian law and any other applicable laws; and
• violate or infringe anyone else’s rights or otherwise cause harm to anyone.

9.2 No Obligation on Soma. You acknowledge that Soma has no obligation to monitor the access to or use of the Soma Platform or to review, disable access to, or edit any Soma Content, but has the right to do so to (i) operate, secure and improve the Soma Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Customers’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; or (iv) as otherwise set forth in these Terms.

1. Term and Termination, Suspension and other Measures

10.1 Term. This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Soma terminate the Agreement in accordance with this provision.

10.2 Termination by Customer. You may terminate this Agreement at any time by sending us an email.

10.3 Termination by Soma. Without limiting our rights specified below, Soma may terminate this Agreement for convenience at any time by giving you seven (7) days' notice via email to your registered email address.

10.4 Termination for Violations. Soma may immediately, without notice, terminate this Agreement and/or stop providing access to the Soma Platform if (i) you have materially breached your obligations under these Terms, any other terms applicable to your use of the Soma Platform, our policies or community standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Soma believes in good faith that such action is reasonably necessary to protect the personal safety or property of Soma, its Customers, or third parties (for example in the case of fraudulent behavior of a Customer).

10.5 Rights on Termination. In addition, Soma may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, any other terms applicable to your use of the Soma Platform, our policies or community standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information regarding a Payment Method (as defined in the Privacy Policy) or during the checkout process or thereafter, (iv) you at any time fail to meet any applicable quality or eligibility criteria, (v) Soma otherwise becomes aware of or has received complaints about your conduct, (vi) for any amounts you owe under these Terms that are overdue or in default, or (vii) Soma believes in good faith that such action is reasonably necessary to protect the personal safety or property of Soma, its Customers, or third parties, or to prevent fraud or other illegal activity:

• cancel your access to the Soma Platform.
• cancel any orders that have been placed by you.
• limit your access to or use of the Soma, including your ability to make purchases.

In case of non-material breaches and where appropriate, you may be given notice of any intended measure by Soma and an opportunity to resolve the issue to Soma's reasonable satisfaction.

Further, for unsuccessful payment due to card expiration, insufficient funds, chargeback or otherwise, we may temporarily suspend your ability to make purchases on the Soma Platform until we can charge a valid Payment Method.

10.6 Restrictions on Termination. If we take any of the measures described above you will not receive any refunds for any amounts that have been paid to Soma. If your access to or use of the Soma Platform has been limited or this Agreement has been terminated by us, you may not make a Product order on the Soma Platform or access and use the Soma Platform.

10.7 Survival. Sections 5 and 11 to 17 of these Terms shall survive any termination or expiration of this Agreement.

1. Disclaimers

If you choose to use the Soma Platform, Soma Content or any Products, you do so voluntarily and at your sole risk. The Soma Platform, Soma Content and all Products is provided “as is”, without warranty of any kind, either express or implied.

You agree that you have had whatever opportunity you deem necessary to investigate the Products, Soma Services, laws, rules, or regulations that may be applicable to your use of the Soma Services and use of any Products you are receiving and that you are not relying upon any statement of law or fact made by Soma relating to such Soma Services or Products.

You agree that some Products may carry inherent risk, and by using in such Products, you choose to assume those risks voluntarily. You assume full responsibility for the choices you make before, during and after your use of such Products.

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

1. Liability

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC'S CONSUMER PROTECTION ACT, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS IN THESE TERMS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Soma Platform and Soma Content, delivery of any Products to you, availability of any Products and use of any Products remains entirely with you. Neither Soma nor any other party involved in creating, producing, or delivering the Soma Platform, Soma Content or the Products will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury, emotional distress or damage to property arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Soma Platform, Soma Content or any Products, (iii) from any communications, interactions or meetings with Soma or other persons with whom you communicate, interact or meet with as a result of your use of the Soma Platform, or (iv) from your provision or use of any Products by you, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Soma has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to refund amounts to applicable Customers pursuant to these Terms, in no event will Soma’s aggregate liability arising out of or in connection with these Terms and your use of the Soma Platform including, but not limited to the use of or inability to use the Soma Platform or Soma Content and in connection with any Products exceed the aggregate amount you have paid for such order made via the Soma Platform or one hundred Canadian dollars (CAD$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Soma and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

1. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend (at Soma’s option), indemnify, and hold Soma and its affiliates and subsidiaries, including but not limited to, Soma’ officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our policies, (ii) your improper use of the Soma Platform or any Soma Services, (iii) your use of any Products, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such use, or (iv) your breach of any laws, regulations or third party rights.

1. Dispute Resolution and Arbitration Agreement

14.1 Overview of Dispute Resolution Process. Soma is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals that bring any claim against Soma: (1) an informal negotiation directly with Soma, and (2) a binding arbitration administered by The ADR Institute of Canada, Inc. (“ADRIC”) using its Arbitration Rules (as modified by this Section 17). 

14.2 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Soma each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Soma by emailing us at hello@somethebrand.com. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed in accordance with the Arbitration Rules (available at www.adric.ca/rules-codes/).

14.3 Agreement to Arbitrate. You and Soma mutually agree that any dispute, claim or controversy arising out of or relating to these Terms, any other terms applicable to you or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the Soma Platform, any Products or the Soma Content (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Soma agree that the arbitrator will decide that issue.

14.4 Exceptions to Arbitration Agreement. You and Soma each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); (iii) Any claim related to the failure of any Customer to pay any fees due to Soma as required by these Terms.

14.5 Modification to ADRIC Arbitration Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Soma agrees that any required arbitration hearing may be conducted, at your option, (a) in Toronto, Ontario; (b) in any other location to which you and Soma both agree; (c) via phone or video conference; or (d) for any claim or counterclaim under $25,000, by using the Simplified Arbitration Rules of the ADR Institute of Canada, Inc..

14.6 Modification of ADRIC Arbitration Rules - Legal Fees and Costs. You and Soma agree that Soma will be responsible for payment of the balance of any initial filing fee under the AIDRIC Arbitration Rules in excess of $200 for claims of $50,000 or less. You may be entitled to seek an award of legal fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the Arbitration Rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Soma agrees it will not seek, and hereby waives all rights it may have under applicable law or the Arbitration Rules, to recover legal fees and expenses if it prevails in arbitration.

14.7 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

14.8 Jury Trial Waiver. You and Soma acknowledge and agree that all Disputes that may arise are likely to involve complicated and difficult issues and, therefore, we are each irrevocably and unconditionally waiving any right to a trial by jury (if applicable) as to all Disputes. You acknowledge that you (a) have considered and understood the implications of this waiver, (b) have made this waiver knowingly and voluntarily, and (c) have been induced to enter into these Terms by, among other things, the mutual waivers and acknowledgements in this Section.

14.9 No Class Actions or Representative Proceedings. You and Soma acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class Customer in any purported class action lawsuit, class-wide arbitration, or any other representative proceeding as to all Disputes. Further, unless you and Soma both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 14.9 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “representative proceeding” waiver in this Section 14.9 is held unenforceable with respect to any Dispute, that waiver may be severed from this Arbitration Agreement and you and Soma agree that any representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.

14.10 Severability. Except as provided in Section 14.9, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

14.11 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Soma changes this Section 14 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Soma (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Soma.

14.12 Survival. Except as provided in Section 14.10 and subject to Section 10.7, this Section 14 will survive any termination of these Terms and will continue to apply even if you stop using the Soma Platform or terminate your Soma Account.

1. Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Soma Platform (“Feedback“). You may submit Feedback by emailing us at hello@somathebrand.com. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

1. Applicable Law and Jurisdiction

These Terms are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflict of law principles, and these laws apply to Soma Platform, notwithstanding your domicile, residency or physical location. You hereby attorn to the exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom, unless we both agree to some other location. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

The Soma Platform is intended for use only in jurisdictions where it may lawfully be offered for use.

1. General Provisions

17.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Soma and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Soma and you in relation to the access to and use of the Soma Platform.

17.2 No joint venture, partnership, employment, or agency relationship exists between you and Soma as a result of this Agreement or your use of the Soma Platform.

17.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.

17.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.

17.5 Soma’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

17.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Soma' prior written consent. Soma may, at its sole discretion, without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder. Your right to terminate this Agreement at any time remains unaffected.

17.7 Unless specified otherwise, any notices or other communications to Customers permitted or required under this Agreement, will be provided electronically and given by Soma via email, Soma Platform notification, or messaging service (including SMS).

17.8 If you have any questions about these Terms please email us at hello@somethebrand.com.