By accessing or using the websites or blogs (collectively, the “Site”) provided by Figure 1 Beauty, Inc. or our subsidiaries or affiliates (herein referred to as “Figure 1,” “we,” “us” or “our”), including, without limitation, the website at www.fig-1.co, pursuant to which we offer beauty advice and tips and make available our unique beauty products or other products for purchase and samples thereof (the “Products”) (collectively, with the Site, the “Services”), you agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated herein by reference. For purposes of this Agreement, “you” and “your” means you as the user of the Site. Some of the Services may be subject to additional terms and conditions we specify from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into this Agreement by reference. This Agreement applies to all users of the Site and Services.
PLEASE NOTE THAT SECTION 14 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THE AGREEMENT, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION IN SECTION 14 BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2.1 You must be the age of majority in your jurisdiction of residence, and a resident of the United States in order to make a purchase or use the Services on our Site. The Site and Services are not intended for use outside the United States. The right to access the Site is revoked where this Agreement or use of the Site is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. You are solely responsible for ensuring that your use of the Site and Services complies with all laws, rules and regulations applicable to you. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.
2.2 We continually test new features, functionalities, services, user interfaces and Products that we are considering incorporating into or providing through our Site. We reserve the right to include or exclude you from these tests without notice.
4. Use of the Site
4.1 The Site contains material, including but not limited to software, text, graphics, and images, proprietary content, information, trademarks, logos, service marks, features, functions, and the compilation and organization thereof (collectively referred to as the “Content”). We may own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Site is or will continue to be accurate. We reserve the right to correct any errors, inaccuracies or omissions (including after an order has been submitted) with respect to Content or otherwise and to change or update information at any time without prior notice. The Content is protected by United States and foreign intellectual property laws. We and our licensors reserve all rights in connection with the Site and Content (other than User Content), including, without limitation, the exclusive right to create derivative works. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content, including but not limited to use of framing or mirrors, except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or any aspects of the Site or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Site or Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited (except as permitted under Section 4.2 below). If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
4.2 Subject to your compliance with this Agreement, Figure 1 hereby grants you a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right to access and make personal use of the. A website that links to the Site (a) may link to, but not replicate, any and/or all of our Content; (b) may not imply that we are endorsing such website or its services or products; (c) may not misrepresent its relationship with us; (d) may not contain content that could be construed as distasteful, obscene, offensive controversial or illegal or inappropriate for any ages (as determined in our sole discretion); and (e) may not portray us or our Products in a false, misleading, derogatory, or otherwise offensive or objectionable manner, or associate us with undesirable products, services, or opinions. We may, in our sole discretion, request that you remove any link to the Site, and upon receipt of such request, you shall immediately remove such link.
4.3 The trademarks, service marks, and logos of Figure 1 (the “Figure 1 Trademarks”) used and displayed in connection with the Services are trademarks or service marks of Figure 1. Other company, product, and service names located on the Site or otherwise used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Figure 1 Trademarks, the “Trademarks”). Nothing on the Site, in the Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site or otherwise used in connection with the Services without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Figure 1 Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Figure 1 Trademark shall inure to our benefit.
4.4 You agree not to: (a) take any action that imposes an unreasonable load on the Site’s infrastructure; (b) use any device, software or routine to attempt to gain unauthorized access to the Site or interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site; (d) delete or alter any material we or any other person or entity posts on the Site; (e) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Site; (f) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Site to monitor, extract, copy or collect information or data from or through the Site, or engage in any manual process to do the same; (g) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; (h) use the Site for illegal, harassing, unethical, or disruptive purposes; or (i) otherwise take any action in violation of this Agreement or our guidelines and policies. Any unauthorized use by you of the Site or any of our Content automatically terminates the limited licenses set forth in Section 4.2 without prejudice to any other remedy provided by applicable law or this Agreement.
4.5 THIS SITE IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND DOES NOT PROVIDE ANY DIAGNOSIS OR TREATMENT OF HEALTH CONDITIONS OR SKIN CONDITIONS. ANY INFORMATION AND ADVICE ON THE SITE IS GIVEN ON A GENERALIZED, GENERIC BASIS, AND IS NOT SPECIFIC TO ANY INDIVIDUAL’S CONDITION. USE OF THIS SITE DOES NOT CREATE A HEALTH CARE PROVIDER-PATIENT RELATIONSHIP. YOU SHOULD ALWAYS CONSULT WITH A PROFESSIONAL FOR DIAGNOSIS AND TREATMENT OF ANY SPECIFIC HEALTH PROBLEMS. YOU SHOULD NOT DISREGARD ANY ADVICE OR TREATMENT FROM YOUR HEALTH CARE PROFESSIONAL BASED ON YOUR INTERPRETATION OF WHAT YOU MAY READ ON THIS SITE. NO PRESCRIPTION MEDICATIONS OR MEDICAL TREATMENTS ARE INTENTIONALLY PROVIDED ON THE SITE.
5. Third Party Sites
5.1 The Site may contain links to third party websites, services or other resources on the Internet, including but not limited to our sponsors and Facebook, and other websites, services or resources may contain links to the Site (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You acknowledge and agree that we 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 the use of or reliance on any content, goods or services available on or through any External Sites.
5.2 We may participate in affiliate marketing and may allow affiliate links to be encoded on some of our pages. This means that we may earn a commission if/when you click on or make purchases via affiliate links.
6. User Content
6.1 With respect to the Photos (as defined below), Submissions (as defined below), and any content or other materials you provide to or upload through the Site or share with other Site users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights, trademarks, and rights of publicity and other intellectual property rights contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know is false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion. You are entirely responsible for your User Content.
6.2 The Site and Services may pull content from our users who share photos and videos on Instagram using our brand hashtags (collectively, the “Figure 1 Hashtags”), or tagging the @fig1co accounts (collectively, “Photos”). You acknowledge and agree that the Photos may be used on the Site, and you hereby grant us permission to use and authorize others to use your name, likeness or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your Account or the Services. You represent and warrant that the posting and use of your Photos, including to the extent such Photos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights.
6.3 In connection with your use of the Site and Services, if you transmit, upload, post, e-mail, share, distribute, reproduce or otherwise make available any User Content, you hereby grant and will grant Figure 1 and its affiliated companies, successors, licensees and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to access, reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, cache, store, modify and otherwise use your User Content (including but not limited to Photos and Submissions) and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the Services, in any form, medium or technology now known or later developed, and including after your termination of your Account or the Services. As part of the foregoing license grant you agree that (a) the other users of our Site may have the right to comment on and/or tag your User Content and/or use, publish, display, modify or include a copy of your User Content as part of their own use of the Site, and (b) we have the right to make any of your User Content available to third parties, so that those third parties can distribute, make derivative works of, comment on and/or analyze your User Content on other media and services (either alone or as part of a collective work). For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
6.4 Except where prohibited by applicable law, by submitting User Content through the Site or Services, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the User Content or any Photos, Submissions, photograph(s), footage, illustrations, statements or other work contained in the User Content. You are also agreeing to appoint Figure 1 as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
6.5 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
6.6 You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Figure 1, our users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
7. IP Infringement
7.1 We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Figure 1 Beauty’s Copyright Agent at firstname.lastname@example.org (Subject line: “Takedown Request”). You may also contact us by mail at: 335 Madison Avenue, Suite 6C, New York, NY 10017.
7.2 To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled along with a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
Information reasonably sufficient for us to contact you, such as your address, telephone number, or email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.3 If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within New York, New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
7.4 If a counter-notice is received by the Copyright Agent, we will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it within ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
7.5 In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Site and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. Payments; Ordering & Availability; Billing
8.1 The Services may permit you to purchase Products. You agree to provide accurate, complete and up-to-date payment and other purchase information at the time you order any Product. We have contracted with a third-party payment processor to facilitate purchases made on the Site. When you make a purchase through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. You represent and warrant that you have the legal right to use the payment method you provide to our payment processor, including, without limitation, any credit card you provide when completing a transaction. You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our payment processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
8.2 You agree to have sufficient funds or credit available upon placement of any such order to ensure that the purchase price will be collectible by us. When you purchase Products, you (a) agree to pay the price for such Products as set forth on the Site, and all shipping and handling charges and all applicable taxes in connection with your purchase, as further described in Section 8.3 below (the “Full Purchase Amount”), and (b) authorize us or our third party payment-processor to charge your credit card or other payment method for the Full Purchase Amount. The Services may allow you to purchase Products and designate them to be delivered or provided at a future date. In such instance, you acknowledge and agree that we and our third party payment-processors, as applicable, may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of delivery or provision of the applicable Product. After you place your order, we will send you a confirmation email (the “Order Confirmation”). Your receipt of an Order Confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason and in our sole discretion. If we cancel an order after you have already been billed, then we will refund the billed amount. We strive to provide accurate pricing and availability information regarding the Products available on the Site. We cannot, however, insure against pricing and availability errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price or availability was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. The Site may contain information regarding the availability of Products. In rare cases, a Product may be in stock when you place the order, and sold out by the time we attempt to process the order. Should this happen, we will notify you by email and cancel the item from your order. We also may offer some Products for sale before they have been manufactured or arrive at our warehouse. When you preorder these Products, we will ship them out once they are available. In rare cases, these items may not become available for shipping. Should this happen, we will notify you by email and cancel the item from your order.
8.3 Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us when you submit your order. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, or through PayPal or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor are solely your responsibility.
8.4 We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Products, and (b) refuse to allow any user to purchase or deliver such Products to a user or a user designated address. All orders of Products must be for your personal use only. By purchasing Products, you hereby agree not to resell or distribute such Products for any commercial purposes. All orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
8.5 We attempt to provide accurate descriptions of Products. We do not warrant, however, that the Product descriptions, colors, information or other content available on the Site are error-free. Product images may vary from how a Product actually appears due to formatting and other requirements. If a Product is not as described, your sole remedy is to refund the order, unless otherwise specified in writing by us. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions. All other information with respect to the purchase of Products from the Site can be found on the Order Help Page located at www.fig-1.co/help, including our policies on shipping and tax, billing, order acceptance, gift cards, and returns and exchanges.
9.1 Your order will be fulfilled by the delivery date set out in the Order Confirmation or, if no delivery date is specified, then within 30 days after the date of the Order Confirmation, unless there are exceptional circumstances and except in the case of pre-orders.
9.2 Your order will be delivered to the delivery address that you specify when placing your order. If we are unable to deliver to your delivery address, for example if your delivery address is geographically remote, we will notify you before we accept your order. We reserve the right not to deliver to any country that is prohibited by applicable export laws. Products comprised within the same order cannot be delivered to different addresses.
9.3 Risk of loss for any purchases of Products pass to you upon our delivery to our carrier. The Product(s) ordered will be at your risk from the time of delivery until you receive the Product(s). Title and ownership of the Product(s) ordered will also pass to you upon your receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received. We reserve the right to ship partial orders (at no additional cost to you), and notwithstanding anything to the contrary in Section 8, the portion of any order that is partially shipped may be charged at the time of shipment. All orders are shipped using one of our third party couriers. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control.
9.4 If any Product you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with your legal rights. If you believe a Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, preferably in writing, giving your name, address and order reference. Nothing in this section affects your legal rights.
10. Returns and Exchanges
10.1 Figure 1 does not accept returns, but may provide a refund. To refund your Order(s), please email us at email@example.com with your name and order number. After we receive your written request, we will respond with further instructions about receiving a refund.
10.2 Upon receiving the request for a refund, we will process any refund due to you as soon as possible. You will be refunded in full to your original form of payment, including the cost of standard delivery. If you received any promotional or other discount when you paid, any refund will only reflect the amount you actually paid. For more information about returns and exchanges, please see our Frequently Asked Questions.
11. Limitation of Liability and Disclaimer of Warranties
11.1 EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, FIGURE 1 BEAUTY, INC., OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “FIGURE 1 PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT OR THE SERVICES, OR ANY RECOMMENDATIONS MADE ABOUT PRODUCTS, INCLUDING BUT NOT LIMITED TO THE SITE’S ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE FIGURE 1 PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR THE SITE OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOUR USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITES. USE OF THE SITE IS NOT MEANT TO SERVE AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. IF YOU HAVE ANY PERSONAL CONCERNS, PLEASE CONSULT WITH YOUR OWN PHYSICIAN OR HEALTH CARE PRACTITIONER REGARDING THE USE OF ANY GOODS, PRODUCTS OR INFORMATION RECEIVED FROM THE SITE BEFORE USING OR RELYING ON THEM. ANY RECOMMENDATIONS FOR PRODUCTS IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CREATE ANY REPRESENTATION OR WARRANTY ABOUT THE PRODUCT OR WHETHER IT WILL ADDRESS ANY SKIN CONDITION.
11.2 THE FIGURE 1 PARTIES DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR FREE OR THAT THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO FIGURE 1 PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS. THE FIGURE 1 PARTIES MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR (A) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; (B) WHETHER THE SITE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; AND (C) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT, YOUR CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SITE
11.3 EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, THE SITE, CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE FIGURE 1 PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
12. Limitation of Liability
12.1 IN NO EVENT SHALL ANY FIGURE 1 PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, SITE OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH FIGURE 1 PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FIGURE 1 PARTIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED FROM YOUR USE OF THE SITE SHALL NOT EXCEED THE GREATER OF (I) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $500.00 OR (II) THE AMOUNTS PAID BY YOU FOR PRODUCTS YOU HAVE ORDERED THROUGH THE SITE OR OTHERWISE RECEIVED FROM US. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.2 Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE FIGURE 1 PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
13.1 To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the Figure 1 Parties from and against any liabilities, costs, damages, losses, expenses, claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this Agreement or any applicable law or regulation, (b) any User Content or Feedback you provide, or your access to, use or misuse of the Content or the Services, (c) your violation of any rights of any third party or (d) your negligence or willful misconduct. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to the Figure 1 Legal Department at firstname.lastname@example.org. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
14. ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH FIGURE 1 AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
14.1 UNLESS YOU OPT-OUT AS PROVIDED IN SECTION 14.6, AND EXCEPT FOR EXCLUDED CLAIMS AS SET FORTH IN SECTION 14.2, YOU AND FIGURE 1 AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICES IS PERSONAL TO YOU AND FIGURE 1 AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
14.2 Except for small claims disputes in which you or Figure 1 seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Figure 1 seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (“Excluded Claims”), you and Figure 1 waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. Instead, for any dispute or claim that you have against Figure 1 or relating in any way to the Services, you agree to first contact Figure 1 and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Figure 1 by email at email@example.com or by certified mail addressed to Figure 1 Legal Department, 335 Madison Avenue, Suite 6C, New York, NY 10017. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Figure 1 cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration. Arbitration proceedings will be held in New York County, New York or may be conducted telephonically or via video conference for disputes alleging damages less than $500, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
14.3 You and Figure 1 agree that this Agreement affects interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
14.4 The arbitrator, Figure 1, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
14.5 You and Figure 1 agree that for any arbitration you initiate, you will pay the filing fee and Figure 1 will pay the remaining JAMS fees and costs. For any arbitration initiated by Figure 1, Figure 1 will pay all JAMS fees and costs. You and Figure 1 agree that the state or federal courts of the State of New York and the United States sitting in New York county, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award or any dispute that is not subject to arbitration under this Section 14.
14.6 Any claim arising out of or related to this Agreement or our Services or Products must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Figure 1 will not have the right to assert the claim. You have the right to opt out of binding arbitration within 30 days of the earliest of the following dates to occur: (a) your creation of an Account; (b) your first use of the Site or Services; (c) your order of a Product; or (d) you first accepted the terms of this Section 14 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.1.
14.7 If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
15.1 We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site or the Content at any time and for any or no reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of this Agreement) without prior notice or liability, including the right to reject any order you place for the purchase of Products, which may result in the forfeiture and destruction of all information associated with your Account. We reserve the right to change, suspend, or discontinue all or any part of the Services or the Content at any time without prior notice or liability. In the event of Account deletion for any reason, Figure 1 may, but is not obligated to, delete any of your User Content. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, Sections 1, 2, 4.1, 4.3, 4.4, 4.5, 5, 6, 7, and 11 through 20, and any claim by Figure 1 for amounts due. Termination will not limit any of Figure 1’s other rights or remedies at law or in equity.
16. User Must Comply with Applicable Laws
16.1 You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national and international laws and regulations.
16.2 The Site is operated by us in the United States and is intended for users in the United States. Those who choose to access the Site from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
17. Transfer and Processing of Personal Data
17.1 In order for us to provide the Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
18. U.S. Government Restricted Rights
18.1 The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Services or Content by the Government constitutes acknowledgement of our proprietary rights in the Services and Content.
19.1 This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. Any dispute between you and Figure 1 that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting in the City of New York in the State of New York. You agree that a breach of this Agreement will cause irreparable injury to Figure 1 for which monetary damages would not be an adequate remedy and Figure 1 shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. Any information you submit to or provide through the Site might be publicly accessible, and you should protect important and private information. We are not liable for protection of privacy of email or other information transferred through the Internet or any other network that you may use.
19.2 Except as expressly agreed by us (through an authorized offices) and you in writing, this Agreement constitutes the entire agreement between us and you with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between us and you with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement and the licenses granted hereunder are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. This Agreement and the licenses granted hereunder may be freely assigned by us. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. You agree to accept communications and notices under this Agreement electronically at the email address you have provided to Figure 1. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
19.3 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.
20. How to Contact Us
Figure 1 Beauty, Inc. is a Delaware corporation with its headquarters at 335 Madison Avenue, Suite 6C, New York, NY 10017. You may contact us at the following address: 335 Madison Avenue, Suite 6C, New York, NY 10017, or at the following email address: firstname.lastname@example.org