Terms of Service
TERMS OF SERVICE
Effective Date: September 22, 2017
NONIKO provides the content and goods available on the website located at www.nonikoskin.com (the “Site”), including all information, tools and goods available on the Site, to you subject to the following NONIKO® Terms of Service (“Terms of Service”). These Terms of Service expressly incorporate the NONIKO® Privacy Statement (“Privacy Statement”), our Shipping and Returns Policy, our FAQs, the contest rules applicable to the promotions (“Contest Rules”) and any and all other terms, conditions and policies which you may find throughout the Site in connection with certain functionality, features and promotions, as well as customer service, all of which are deemed a part of and included within these terms of service (collectively, the “Agreement”). The Agreement applies to all users of the Site (including, without limitation, users who are browsers, vendors, customers, merchants, and/ or contributors of content), when such users: (a) access or use the Site; (b) access and/or download any of the text, audio, video, photographs, graphics, artwork, testimonials and/or other NONIKO® content featured on the Site, including information concerning NONIKO® products and services (collectively, “Content”); (c) utilize the searchable directory of retail outlets that carry NONIKO® products (“Store Locator”); (d) register for, and obtain information about, the NONIKO® Recycling Club (“Recycling Club”); (e) register to enter one or more promotions, giveaways, sweepstakes, referral programs and/or any other program that enables users to apply to receive product discounts that may be offered by NONIKO® from time-to-time (collectively, “Promotions”); (f) access links to NONIKO® social media pages/accounts featured on third-party social media websites, such as Facebook®, Instagram®, SnapChat®, Twitter® and YouTube® (collectively, “Social Media Pages”); (g) register to receive NONIKO® e-mails containing promotional offers and Product updates (“Newsletter”); (h) purchase NONIKO® products, services and/or merchandise featured on the Site (collectively, “Products”); and/or (i) register for a subscription service associated with the Products (“Subscription Services” and together with the Site, Content, Store Locator, Recycling Club, Social Media Pages, Promotions, Newsletter and Subscription Services, the “Site Offerings”).
THE SECTION BELOW TITLED “DISPUTES” CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IN ADDITION, THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES AND INDEMNIFICATION PROVISIONS. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT AND THEY MAY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Please read the Agreement carefully before accessing or using any of the Site Offerings. By accessing or using any of the Site Offerings, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by the Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, YOU MAY NOT ACCESS AND/OR USE ANY OF THE SITE OFFERINGS.
Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). Snapchat® is a registered trademark of Snap Inc. (“Snap”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). YouTube® is a registered trademark of Google, Inc. (“Google”). Please be advised that NONIKO® is not in any way affiliated with Facebook, Google, Snap or Twitter, and the Site Offerings are not endorsed, administered or sponsored by any of the foregoing entities.
You acknowledge and understand that the Products (and associated Content) have not been evaluated by the US Food & Drug Administration (“FDA”). The Products, Content and other material made available by and through the Site Offerings: (a) are not intended to diagnose, treat, cure or prevent any medical condition or disease; (b) are not in any way intended as medical advice or as a substitute for medical advice and/or medical treatment; and (c) should only be used in conjunction with the guidance and care of your physician. If you have or suspect that you have a medical problem, promptly contact your health care provider. Never disregard professional medical advice or delay in seeking professional advice because of something that you have read on the Site or in connection with any other Site Offerings.
Without limiting the foregoing, those who are taking medication or are under treatment for any disease, or are pregnant or lactating, please consult with your health care professional before utilizing any Products.
The Products may include ingredients that you are allergic to. You should always check the ingredients in any Product to avoid potential allergic reactions. If you have or suspect that you are experiencing an allergic reaction or other adverse health event, promptly contact your health care provider.
We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Site Offerings. By your continued use of the Site Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
SECTION 1 – PRIVACY
Your submission of personal information through the Site is governed by our Privacy Statement. Please review our Privacy Statement so that you understand our privacy practices.
SECTION 2 - REQUIREMENTS; NECESSARY EQUIPMENT
The Site Offerings are available only to individuals who can enter into legally binding contracts under applicable law. The Site Offerings are not intended for use by individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in the applicable jurisdiction). If an individual is under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in the applicable jurisdiction), that individual does not have permission to use and/or access the Site Offerings.
Users shall be responsible, at all times, for ensuring that they have an Internet connection, personal computer, mobile device, wireless service plan and/or other equipment necessary to access and use the Site and other Site Offerings, as applicable. NONIKO® does not guarantee that the Site and other Site Offerings can be accessed: (a) on all computers and/or mobile devices; (b) through all Internet/wireless service plans; and/or (c) in all geographical areas. NONIKO® does not guarantee the quality, speed or availability of your computer and/or mobile device’s Internet connection. Standard messaging, data and wireless access fees may apply to your use of the Site and other Site Offerings. You are fully responsible for all such charges, and NONIKO® has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier. By accessing or using the Site, you agree not to use our Products and/or any Site Offerings for any illegal or unauthorized purpose and/or in violation of any laws in your jurisdiction (including, but not limited to, trademark and copyright laws). You further agree not to transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the terms of the Agreement will result in an immediate termination of your right to use the Site Offerings.
SECTION 3 – REGISTRATION
In order to utilize certain Site Offerings, you may be required to submit a registration form (collectively, “Form”). The information that you must supply on the Form may include, without limitation: (a) your name; (b) your mailing/billing address; (c) your e-mail address; (d) your telephone number; (e) your credit card information (where purchasing Products and/or utilizing the Subscription Services); (f) date of birth; and/or (g) any other information requested on the Form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion. NONIKO® may reject your Form and/or terminate your access to the Site Offerings at any time and for any reason, in its sole discretion. Such reasons may include, without limitation where NONIKO® believes that you: (i) are in any way in breach of the Agreement; (ii) are engaged in any improper conduct in connection with the Site Offerings; and/or (iii) are, at any time, conducting any unauthorized commercial activity by or through your use of the Site Offerings.
SECTION 4 –PRODUCTS; RECURRING BILLING FOR SUBSCRIPTIONS; RECYCLING CLUB
Our Site store is hosted on Shopify Inc. (“Shopify”). Shopify provides us with the online e-commerce platform that allows us to sell our Products to you. For more information about the services Shopify provides to us, please see our Privacy Statement.
You can purchase Products on the Site by completing the applicable Form and providing the requisite Registration Data. Where you purchase Products, the credit card that you provided on the Form (“Payment Method”) will be charged the amount listed, plus applicable sales tax. UNLESS OTHERWISE INDICATED TO THE CONTRARY, ALL SALES OF PRODUCTS ARE FINAL AND NON-REFUNDABLE. Prices for our Products are subject to change without notice (other than in connection with a Subscription, as set forth below). We reserve the right to discontinue or modify any of our Products at any time.
Certain Products may be available exclusively online through the Site. These Products may have limited quantities and are subject to return or exchange only in accordance with the terms of our Shipping and Returns Policy. We reserve the right, but are not obligated, to cancel orders and/or limit the sales of our Products to any person, account, credit card, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was placed. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. All descriptions of products or product pricing are subject to change at any time without notice, in our sole discretion. We reserve the right to discontinue any Product at any time. Any offer for any Product made on the Site is void where prohibited. We do not warrant that the quality of any Products, information, or other material purchased or obtained by you will meet your expectations, or that any errors associated with the Site Offerings will be corrected.
For information regarding returns, please review our Shipping and Returns Policy.
NONIKO® does not make any representation that the Site Offerings and/or Products is/are appropriate or available for use in locations outside of the United States. Regardless of the location from which you access the Site Offerings and/or Products, you are solely responsible for compliance with all applicable laws associated with using the Site Offerings and/or Products, as applicable, including, but not limited to, import and export rules, regulations, interpretations and determinations of any regulatory authority.
By signing up for the Subscription Services in order to receive a subscription (“Subscription”) for any of our Products, you agree and acknowledge that your Subscription has a recurring payment feature and you accept responsibility for all recurring charges incurred prior to cancelation of your subscription. UNLESS YOU OPT OUT OF THE SUBSCRIPTION, YOU WILL BE CHARGED ON A RECURRING BASIS, IN ADVANCE, IN ACCORDANCE WITH THE DELIVERY SCHEDULE YOU SELECTED WITH YOUR SUBSCRIPTION, UNTIL YOU CANCEL YOUR SUBSCRIPTION (RECEIPT OF WHICH IS CONFIRMED BY US). YOU ACKNOWLEDGE AND AGREE THAT NONIKO® WILL NOT OBTAIN ANY ADDITIONAL AUTHORIZATION FROM YOU FOR THESE RECURRING SUBSCRIPTION FEES. EVERY TIME THAT YOU RECEIVE YOUR SUBSCRIPTION PRODUCTS, YOU RE-AFFIRM THAT NONIKO® IS AUTHORIZED TO CHARGE YOUR PAYMENT METHOD AND TO HAVE THE SUBSCRIPTION FEES APPLIED TO SAME. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, YOU MUST CANCEL YOUR PAID SUBSCRIPTION BEFORE THE END OF THE APPLICABLE RECURRING PERIOD. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, NONIKO® WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. SUBSCRIPTION SERVICES ARE CURRENTLY AVAILABLE ONLY FOR ORDERS SHIPPED TO ADDRESSES IN THE UNITED STATES OF AMERICA. DISCOUNT CODES MAY NOT BE APPLIED TO ORDERS CONTAINING SUBSCRIPTIONS.
General Billing Terms
All prices are quoted in U.S. Dollars, and are payable in U.S. Dollars. The fees associated with your purchases will appear on your Payment Method statement through the applicable NONIKO® identifier. Failure to use the Products does not constitute a basis for refusing to pay for any of the associated charges. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), NONIKO® reserves the right to change its Billing Provisions whenever necessary, in its sole discretion (including Subscription pricing and Product prices). Continued use of the Site, receipt of Subscription Products and/or purchase of Products after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification.
NONIKO® authorization to provide and bill for Products and Subscriptions is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. NONIKO® reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
Users that register for the Recycling Club, and who comply with all the requirements associated therewith, may qualify to receive free and/or promotional Products. For more information regarding the terms and conditions associated with the Recycling Club, please Click Here.
SECTION 5 – CONTENT
Subject to the terms and conditions of the Agreement, users that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the Content made available by and through the Site and/or other Site Offerings. The Content is compiled, distributed and displayed by NONIKO®, as well as third-party content providers (“Third-Party Providers”). NONIKO® does not control the Content provided by Third-Party Providers that is made available by and through the Site Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness and/or usefulness of such Content. The Content should not necessarily be relied upon. NONIKO® does not represent or warrant that the Content and other information posted by and through the Site Offerings is accurate, complete, up-to-date or appropriate. You understand and agree that NONIKO® will not be responsible for, and NONIKO® undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. You agree that NONIKO® shall have no obligation and incur no liability to you in connection with any Content. You may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content.
SECTION 6 - INTELLECTUAL PROPERTY
All information and content available on the Site and/or by and through the other Site Offerings including, but not limited to, trademarks, logos, service marks, features, functions, text, graphics, logos, button icons, images, audio clips, data compilations and software, and the compilation and organization thereof (collectively, the "Proprietary Content") is our property or the property of our parents, subsidiaries, our affiliates, partners or licensors, as applicable, and is protected by United States and international laws, including laws governing copyrights and trademarks.
Except as set forth in Section 7 below, or as required under applicable law, neither the Proprietary Content nor any portion of the Site Offerings may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, reverse engineered or otherwise exploited, in whole or in part, for any purpose without our express, prior written consent in each instance. You do not acquire ownership rights in or to any Proprietary Content, Content, document, software, services or other materials viewed by or through the Site Offerings. The posting of information or material by and through the Site Offerings does not constitute a waiver of any right in or to such information and/or materials. The “NONIKO®,” “Boob Balm™” and “Magic Deodorant™” names and logos, and all associated graphics, icons and service names, are trademarks of NONIKO®. All other trademarks appearing on the Site are the property of their respective owners. The use of any trademark without the applicable trademark owner's express written consent is strictly prohibited.
SECTION 7 – LIMITED LICENSES; USE RESTRICTIONS
We grant you a limited, revocable, non-transferable, and non-exclusive license to access and make personal use of the Site Offerings (including the Proprietary Content). You represent and warrant that you will not do, attempt to do or cause any third party to do or attempt to do, any of the following in connection with your use of the Site Offerings and/or Proprietary Content:
- frame or utilize framing techniques to enclose the Site Offerings or any portion thereof;
- use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Site Offerings, Proprietary Content (except caching or as necessary to view the Site), or the personal information of others without our prior written permission or authorization;
- make any use of the Site or any Proprietary Content other than for personal use;
- modify, reverse engineer or create any derivative works based upon the Site or any Proprietary Content;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- "stalk" or otherwise harass, including advocating harassment of another, entrap or harm any third party, including harming minors in any way;
- intentionally violate any applicable local, state, national or international law;
- transmit, upload, post, e-mail, share, distribute, reproduce, or otherwise make available any software virus, malware, program, code, file, or other material intended to interrupt, disrupt, alter, destroy, or limit any part of the Site Offerings; and/or
- post or make available any unsolicited or unauthorized advertising, solicitation or promotional material, including chain letters, mass mailings, or any form of "spam."
Any unauthorized use by you of the Site Offerings and/or Proprietary Content automatically terminates the limited licenses set forth in this Section 7. Such termination is in addition to any other remedy available to us under applicable law and/or the Agreement.
SECTION 8 – YOUR OBLIGATIONS AND RESPONSIBILITIES
By accessing or using the Site Offerings and/or any Proprietary Content, you agree that you will comply with the Agreements and any warnings or instructions contained on the Site. You agree that when accessing or using the Site Offerings and/or any Proprietary Content, you will act in accordance with the law and in good faith. You may not make any change or alteration to the Site or any Proprietary Content that may appear on the Site and may not impair in any way the integrity or operation of the Site.
SECTION 9 - SOCIAL MEDIA PAGES
The Site contains links to the various NONIKO® Social Media Pages. The Social Media Pages are hosted and made available on third-party websites (“Social Media Websites”) by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that NONIKO® shall not be liable to you, any other user or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
SECTION 10 - PROMOTIONS
From time-to-time, NONIKO® may make certain Promotions available to users. By providing true and accurate information in connection with the applicable Promotion Form(s), responding to Promotions-related communications from NONIKO® and/or the applicable third-party retail partner and agreeing to the Contest Rules applicable to each Promotion, you can obtain, or attempt to obtain, entry(ies) for the chance to win prizes in the applicable Promotion(s). You understand and agree that NONIKO® shall not be liable to any user or any third-party for any claim in connection with your participation in any of the Promotions.
SECTION 11 - YOUR ACCOUNT
When you register for an account on the site, you will be asked to provide a username and password (collectively, “Log-In”). You are responsible for maintaining the confidentiality of your account and Log-In, and for restricting access to your computer and/or mobile device. If there has been an unauthorized use of your Log-In or account, you must notify us immediately. You agree to accept sole responsibility for all activities that occur either: (a) with your permission or authorization under your account and/or Log-In; and/or (b) because you fail to maintain sufficient security over your account and/or Log-In, including any purchases made therethrough. NONIKO® shall not be liable for any losses or damages suffered by any party caused by an unauthorized access to or use of your account. Notwithstanding the foregoing, you may be liable for the losses of NONIKO® and/or others due to such unauthorized access and/or use. If you are accessing and using the Site on someone else’s behalf, you represent that you have the authority to bind that person to all of the terms and conditions of the Agreement, and to the extent you do not have such authority, you agree to be bound to the Agreement and to accept liability for harm caused by any wrongful use of the Site Offerings and/or Proprietary Content resulting from such access and/or use. You may cancel your online account with us at any time.
We reserve the right to refuse service, refuse any order placed with us, and/or terminate accounts without prior notice if you violate the Agreement or if we decide, in our sole discretion, that it would be in our best interest to do so.
SECTION 12 - OPTIONAL TOOLS
We may provide you with access to third-party tools which we do not monitor and over which we have no control or input. We are not responsible for such third-party tools. You acknowledge and agree that we provide access to such tools on an “as is” and “as available” basis, without any warranties or representations of any kind, express or implied, and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Site Offerings is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may, in the future, offer new services and/or features through the Site Offerings (including the release of new tools and resources). Such new features and/or services shall also be subject to the terms of the Agreement.
SECTION 13 - THIRD-PARTY LINKS
We are not responsible for the content of any third party sites even if they are linked to or from the Site and/or other Site Offerings including, without limitation, the Social Media Websites. Links appearing on the Site are for convenience only and are not an endorsement by us, our parents, subsidiaries, affiliates or partners of the referenced content, product, service, or supplier. Your use of, and access to, these third party websites is at your own risk. We are in no way responsible for examining or evaluating these third party websites and/or their product offerings, and we make no warranty in connection with same, nor do we assume any responsibility or liability for the actions, content, products, or services of such websites including, without limitation, their subject privacy policies and terms and conditions. You should carefully review the privacy policies and terms and conditions of the applicable third party websites that you visit. Complaints, claims, concerns, or questions regarding third-party products should be directed to the applicable third party.
SECTION 14 - USER CONTENT
When you transmit, upload, post, e-mail, share, distribute, reproduce or otherwise make available suggestions, ideas, inquiries, feedback, data, text, software, music, sound, photographs, graphics, images, videos, messages and/or other materials (collectively, "User Content") by and through the Site Offerings in any manner (including, but not limited to, by email, postal mail or otherwise), you are entirely responsible for such User Content. You hereby grant to us a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit, translate, publish, and otherwise exploit such User Content throughout the world, in all media now known or hereafter developed, for any purpose whatsoever including, without limitation, developing, manufacturing, distributing and marketing products and services. You acknowledge and agree that we are under no obligation to: (a) maintain any User Content in confidence; (b) pay compensation for any User Content; or (c) respond to any User Content.
You represent and warrant that: (i) you own or otherwise control the rights to your User Content; and (ii) your User Content, as well as any social media posts, text messages and email messages sent either through the Site Offerings or otherwise (collectively, “User Messages”), including any User Content and/or User Messages submitted/delivered in connection with a Promotion, will at all times fully comply with all applicable laws rules and regulations including, without limitation, the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials (“FTC Guidelines”). You agree not to engage in, or assist or encourage others to engage in, transmitting, uploading, posting, e-mailing, sharing, distributing, reproducing, or otherwise making available, User Content that: (A) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (B) you do not have a right to make available under any law or under contractual or fiduciary relationships; (C) is known by you to be false, fraudulent, inaccurate or misleading; (D) you were compensated for or for which you were granted any consideration by any third party; (E) infringes upon any patent, trademark, trade secret, copyright or other proprietary rights of any third party; or (F) contains any computer virus or other malware that could in any way affect the operation of the Site or any related website.
You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any User Content. You are solely responsible for any User Content you create and its accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third-party.
We are in no way responsible for examining or evaluating User Content, nor do we assume any responsibility or liability for the User Content. We do not endorse or control the User Content transmitted or posted by and/or through the Site Offerings and, therefore, we do not guarantee the accuracy, integrity or quality of any User Content. You understand that by using the Site you may be exposed to User Content that is offensive, indecent or objectionable to you. Under no circumstances will we be liable in any way for any User Content including, without limitation, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred by you as a result of the use of any User Content transmitted, uploaded, posted, e-mailed or otherwise made available via the Site Offerings. You hereby waive all rights to any claims against us for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with User Content.
You acknowledge that we have the right (but not the obligation) to, monitor, edit, refuse to post, or remove any User Content that we determine, in our sole discretion, violates the Agreement, is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable. We further reserve the right to change, condense, or delete any User Content in our sole discretion.
If you wish to delete certain of your public User Content on the Site, please contact us by email (see Section 26 below) and include the following information in your deletion request: first name, last name, user name/screen name (if applicable), email address associated with your account, your reason for deleting the posting, and date(s) of posting(s) that you wish to delete (if you have it). We may not be able to process your deletion request if you are unable to provide such information to us.
SECTION 15 – COPYRIGHT INFRINGEMENT NOTICES
We respect the intellectual property rights of others and require that users of the Site Offerings do the same. We also maintain a policy that provides for the termination, in appropriate circumstances, of the Site’s users who infringe upon third party intellectual property rights. Consistent with the Digital Millennium Copyright Act, if you believe that copyrighted materials have been copied in a way that constitutes copyright infringement, please send an e-mail or written notice to our Designated Agent for notices of infringement and provide the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that you claim is infringed;
- Identification of the copyrighted work that you claim has been infringed;
- A description of the material that you claim is infringing and the location of that material on the Site;
- Your address, telephone number and email address;
- A statement by you that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright 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 owner or authorized to act on the copyright owner's behalf.
Our Designated Agent for notice for claims of copyright infringement is:
358 Winsome Place
Encinitas, CA 92024
NOTE: THE ABOVE CONTACT INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING NONIKO® THAT COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED UPON. ALL OTHER INQUIRIES WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS AND SHOULD BE DIRECTED TO OUR CUSTOMER SERVICE BY EMAIL TO: firstname.lastname@example.org.
SECTION 16 - ERRORS, INACCURACIES AND OMISSIONS
We attempt to be as accurate as possible when describing our Products on the Site and by and through other Site Offerings. However, we do not warrant that the Product descriptions, colors, information or other content available on the Site and other Site Offerings are accurate, complete, reliable, current or error-free. If a Product offered on the Site and/or other Site Offerings (or on any related website) is not as described, your sole remedy is to return the Product, subject to our Returns Policy. We have made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, mobile device or other device used to access the Site, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate.
Occasionally there may be information on our Site and other Site Offerings that contains typographical errors, inaccuracies and/or omissions that may relate to Product descriptions, pricing, promotions, offers, product shipping charges, transit times and/or availability. We reserve the right to correct any errors, inaccuracies and/or omissions, and to change or update information or cancel orders if any information on the Site and/or other Site Offerings (or on any related website) is inaccurate at any time without prior notice (including after you have submitted your applicable order).
We undertake no obligation to update, amend or clarify information that appears on the Site and/or other Site Offerings (or on any related website) including, without limitation, pricing information, except as required by law. No update or refresh date appearing in any portion of the Site and/or other Site Offerings (or on any related website) should be taken to indicate that information on any other part of the Site and/or other Site Offerings (or on any related website) has been modified or updated.
SECTION 17 - PROHIBITED USES
In addition to other prohibitions as set forth in the Agreement, you are prohibited from using the Site Offerings: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that may affect the functionality or operation of the Site, other Site Offerings or any related website, other websites or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (x) for any obscene or immoral purpose; or (j) to interfere with or circumvent the security features of the Site Offerings or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Site Offerings or any related website for violating any of the foregoing prohibited uses.
SECTION 18 - DISCLAIMER OF WARRANTIES
THE SITE OFFERINGS, INCLUDING ANY PROPRIETARY CONTENT, ARE PROVIDED TO YOU ON AN "AS IS" AND “AS AVAILABLE” BASIS. WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, OR THE SITE OFFERINGS, INCLUDING ANY PROPRIETARY CONTENT. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).
IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, NONIKO® MAKES NO WARRANTY THAT THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (a) WILL MEET YOUR REQUIREMENTS; (b) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (c) WILL BE FREE OF HARMFUL COMPONENTS; (d) WILL RESULT IN ANY SPECIFIC HEALTH-RELATED BENEFIT; AND/OR (e) WILL BE ACCURATE OR RELIABLE. THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NONIKO® WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NONIKO® OR OTHERWISE THROUGH OR FROM THE SITE OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT
SECTION 19 - LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU AGREE THAT IN NO CASE SHALL NONIKO®, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY OTHER DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE (EVEN IF NONIKO® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO: (a) YOUR USE OF, OR INABILITY TO USE, THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE SITE OFFERINGS; (c) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA; (d) YOUR FAILURE TO REALIZE ANY SPECIFIC HEALTH-RELATED BENEFIT; AND/OR (e) ANY OTHER MATTER RELATING TO THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY FOR SUCH CLAIMS EXCEED FIVE HUNDRED DOLLARS ($500.00). BECAUSE SOME STATES OR JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU AGREE THAT NO CLAIMS OR ACTION IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) ARISING OUT OF, OR RELATED TO, THE USE OF THE SITE OFFERINGS, PRODUCTS OR THE AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION RELATING TO SUCH CLAIM OR ACTION AROSE. IF YOU ARE DISSATISFIED WITH THE SITE OFFERINGS, TERMINATION OF YOUR USE OF THE SITE OFFERINGS IS YOUR SOLE REMEDY. WE HAVE NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NONIKO®. ACCESS TO THE SITE OFFERINGS WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
SECTION 20 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless NONIKO® and its parents, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees harmless from and against any and all losses, damages and costs, including reasonable attorneys’ fees, resulting from any third party claim, action or demand arising from or related to: (a) your improper and/or unauthorized use of the Site Offerings, including any use of the Site Offerings in violation of any law, rule, regulation or the Agreement; (b) any part of your User Content; (c) your breach of the Agreement; or (d) your violation of any law or the rights of a third-party.
SECTION 21 - SEVERABILITY
In the event that any provision of the Agreement is determined to be unlawful, void or unenforceable under any applicable law, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable or invalid portions shall be deemed to be severed from the Agreement. Such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 22 - ENTIRE AGREEMENT; MISCELLANEOUS
Any ambiguities in the interpretation of the Agreement shall not be construed against the drafting party.
You acknowledge and agree that the Agreement constitutes the complete and exclusive agreement between you and NONIKO® concerning your use of the Site Offerings, and supersedes and governs all prior proposals, agreements or other communications, whether oral or written, between you and NONIKO® (including, but not limited to, any prior versions of the Terms of Service or any other part of the Agreement). Notwithstanding the foregoing, to the extent that there is any inconsistency between these Terms of Service and any Contest Rules, insofar as an applicable Promotion is concerned, the Contest Rules shall govern.
Nothing contained in the Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between you and NONIKO®. Our failure to require your performance of any provision hereof shall not affect our full right to require such performance at any time thereafter, nor shall our waiver of a breach of any provision hereof be taken or held to be a waiver of such right or provision. NONIKO® may assign its rights and/or obligations under the Agreement, in whole or in part, to any party at any time without notice to you. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. The headings in the Agreement are for convenience only and shall not be used in its interpretation.
SECTION 23 – DISPUTES; GOVERNING LAW
The Agreement shall be treated as though it were executed and performed in the State of Florida and shall be governed by and construed in accordance with the laws of the State of Florida (without regard to conflict of law principles). Should a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is available Here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against NONIKO® and/or its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that NONIKO® incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
SECTION 24 – CONSENT TO RECEIVE NOTICES ELECTRONICALLY
You consent to receive any agreements, notices, disclosures and other communications (collectively, "Notices") associated with the Agreement from us electronically including, without limitation, by e-mail or by posting notices on the Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive Notices electronically, you must notify us of your withdrawal of such consent by emailing us at email@example.com and discontinue your use of the Site Offerings (other than the Promotions which you may continue to participate in). In such event, all rights granted to you pursuant to the Agreement shall automatically terminate (other than your right to participate in any applicable Promotions). Unfortunately, we cannot provide the benefits of the Site Offerings (other than the Promotions) to any user that cannot consent to receipt of Notices electronically. Please note that this consent to receive Notices is entirely separate from any election that you may make with respect to receipt of marketing communications.
SECTION 25 - California User Consumer Rights
In accordance with Cal. Civ. Code Sec. 1789.3, California State resident users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to firstname.lastname@example.org.
SECTION 26 - CONTACT INFORMATION
If you have any questions about the Terms of Service, please email us at: email@example.com; call us at: (760) 712-6616; or send us mail to: 358 Winsome Place, Encinitas, CA 92024.