Terms & Conditions
Effective Date of Current Policy: December 1st, 2017
These Terms and Conditions apply to the website, applications, and all other online properties (the “Site”) operated by Blemish Inc. (“Blemish”, “we”, or “us”). The use of the Site, including the purchase of any Products (as defined below), is subject to the following terms and conditions (the “Terms”). Please read these Terms carefully. By using this Site, you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of this Site, without limitation or qualification. If you do not agree to these Terms, then you must exit the Site immediately and discontinue any use of the information or Products obtainable or accessible through the Site. If you have any questions about these Terms, please contact us at email@example.com.
We provide the Site in order to enable you to browse and purchase Blemish products (collectively, the “Products”).
If you are using the Site on behalf of a company, entity or organization (collectively, “Organization”), then you represent and warrant that you (a) are an authorized representative of that Organization; (b) have the authority to bind that Organization to these Terms; and (c) agree to be bound by these Terms on behalf of that Organization.
Images of people, places and/or products posted on this Site are either the property of Blemish or our licensors. Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials (together, with “Marks” (as defined below), “Blemish Content”) is the property of Blemish or its licensors, partners or affiliates and is protected by United States and international copyright laws. The compilation of this Site is the exclusive property of Blemish and is protected by United States and international intellectual property laws. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on this Site only with our prior written and express authorization. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at firstname.lastname@example.org.
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to Blemish or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Blemish, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.
LIMITED LICENSE AND SITE ACCESS
We grant you a limited license to use the Site for personal use only. Consequently, this grant does not allow you to do any of the following: (a) resell or make any commercial use of this Site or any of the contents of this Site; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of this Site not intended to be so read (this includes using or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser); (c) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any of the contents of this Site (including any Marks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; or (d) use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods on the contents of the Site or to collect any information from the Site or any other user of the Site.
ACCOUNTS, FORMS, REGISTRATIONS AND PASSWORDS
You represent and warrant that the information you provide to Blemish upon creating an account on the Site and at all other times will be true, accurate, current, and complete.
To facilitate future purchases on the Site, [we require you/you may choose] to create an account by providing an e-mail address and password. [Your account/Please note that you may choose to use this Site and make purchases without creating an account. If you do create an account, your account] is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Site and to preserve the confidentiality of your username and password, and any device that you use to access the Site.
You agree to notify us immediately of any breach in the secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Blemish by e-mail to email@example.com. You will be solely responsible for the losses incurred by Blemish and others due to any unauthorized use of your account.
In an effort to enhance your shopping experience and give as many customers as possible the opportunity to purchase our Products, we may place limits on purchases. All orders of our Products must be for personal use only. By purchasing our Products, you hereby agree not to resell or distribute such Products for any commercial purposes or for resale. We do not authorize the purchase of commercial quantities of our Products. 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 reserve the right to limit, cancel or prohibit orders that, in our judgment, appear to be placed in violation of these Terms.
FEES AND PAYMENTS
Prices: The price for Products available for purchase through the Site will be displayed to you on the Site. The prices displayed do not include taxes. Any applicable taxes will be communicated to you before you place an order. There is no charge for standard shipping, but expedited shipping may be purchased at additional cost. Please see “Shipping” below for more information.
Billing: The Site currently uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for Products you purchase. Our Payment Processor accepts payments through various credit cards, including Visa, MasterCard, American Express and Discover, as detailed on the applicable payment screen. You may also use PayPal as a payment option on our site. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. You agree to pay us all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us to charge your chosen payment provider (your “Payment Method”). We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
Payment Method: Your Payment Method and your agreement with your financial provider dictate the terms of your payment. You agree to pay all amounts due on your Billing Account upon demand.
United States Dollars: All monetary transactions on the Site take place in U.S. dollars.
Shipping: When you place an order for Products through the Site, the Products will be shipped to the address you designate as the “Shipping Address” during the check-out process.
GIFT AND OFFER CODES; REFERRAL PROGRAM
From time to time, Blemish may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to herein as “offer codes”) that are redeemable towards a purchase on the Site, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Blemish in its sole discretion. Only valid offer codes provided or promoted by Blemish will be honored at checkout. Codes supplied or promoted by third parties unauthorized by Blemish (including any unauthorized third party websites) will not be considered valid. Each offer code promoted by Blemish is non-transferable and valid for single use on an item (or items) of merchandise as determined by Blemish. Offer codes may not be combined and may not be used in conjunction with the Blemish Referral Program; customers are limited to the use of a single offer code per order. Offer codes cannot be used towards purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the “offer code” field at checkout. Blemish is not responsible for lost, stolen or corrupted codes or any unauthorized use of codes. Offer codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. Expiry dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
Spokespeople. From time to time, Blemish may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third party source, such as a television or radio show host, please note that such individuals may have been compensated by Blemish for their statements.
We appreciate hearing from our users and welcome your comments regarding the Site. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will: (a) own, exclusively, all now known or later discovered rights to the Creative Ideas; (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and (c) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
CONTENT YOU SUBMIT TO BLEMISH
From time to time, Blemish may allow you to post reviews, comments, photos, or similar materials on the Site (collectively, “Reviews”). We welcome your comments regarding our Products and services, including our Site. However, any Reviews you submit to Blemish must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
By posting a Review on the Site, you hereby grant Blemish an unrestricted, assignable, sublicensable, perpetual, royalty-free, fully paid up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Reviews you post to the Site, for any purpose, including promoting and marketing Blemish and the Products. You further grant Blemish a royalty-free license to use the name, image, and likeness of any person identifiable in any Review you post to the Site. By posting a Review, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your Review. Except for materials provided to you by Blemish through the Site, you represent, warrant, and covenant that (a) you either are the sole and exclusive owner of Reviews that you post to the Site, or you have all rights, licenses, consents, and releases that are necessary to grant to Blemish the rights in your Reviews as contemplated under the Terms, and (b) the Reviews you post to the Site do not (i) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights; (ii) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise); (iii) require Blemish to obtain any licenses from or make any payments in any amounts to any third party throughout the world; or (iv) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code. You agree not to submit Reviews that are or could be interpreted to be inaccurate, harmful, threatening, abusive, harassing, vulgar, offensive, objectionable, hateful, or promote discrimination, bigotry, racism, or hatred, as determined by Blemish in its sole discretion.
ELECTRONIC COMMUNICATION AND TEXT MESSAGE POLICY
When you visit the Site or send us e-mails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
Some of our services may allow you to receive SMS, MMS, or other text message notifications from us (each a “Text Message”). To the extent you voluntarily opt to have Text Messages from us sent directly to your mobile phone, the following terms apply:
In addition to any fee of which you are notified, your mobile provider’s standard messaging rates apply to our confirmation Text Message and all subsequent Text Message correspondence. Message and data rates may apply, according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving text messages. Under no circumstances will Blemish or its affiliates be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text alerts, you may not receive the Text Messages from us. You can opt-out of receiving any further Text Messages from us by replying “STOP” to any Text Message you receive from us.
DIGITAL MILLENNIUM COPYRIGHT ACT
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Site infringe your copyright, you (or your agent) may send Blemish a “Notification of Claimed Infringement” requesting that the material be removed or access to it blocked. The notice must include the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works);
Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Blemish to locate the material on the Site;
Your name, address, telephone number, and e-mail address (if available);
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Blemish a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Site should be sent to340 S LEMON AVE #7499, WALNUT, CA 91789or firstname.lastname@example.org. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
LINKS TO OTHER WEBSITES
The Site may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them. Please be aware that we are not and cannot make any claim or representation regarding, and we accept no responsibility for, the quality, content, nature or reliability of web sites accessible from this Site, or web sites linking to this Site.
USE OF THE SITE
You agree to use the Site only for its intended purpose. You must use the Site in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Site are prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, user accounts, or the technology and equipment supporting the Site;
frame or link to the Site without permission;
use data mining, robots, or other data gathering devices on or through the Site;
post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
disclose personal information about another person or harass, abuse, or post objectionable material;
post advertising or marketing links or content, except as specifically allowed by these Terms;
use the Site in an illegal way or to commit an illegal act in relation to the Site or that otherwise results in fines, penalties, and other liability to Blemish or others; or
access the Site from a jurisdiction where it is illegal or unauthorized.
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Site you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Site at any time, including hours of operation or availability of the Site or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Site. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You hereby release Blemish of all claims, demands, and damages in disputes among users of the Site. You also agree not to involve us in such disputes. Use caution and common sense when using the Site.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Site. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Services. Use the Site at your own risk.
We make no promises and disclaim all liability of specific results from the use of the Site.
Released Parties Defined. “Released Parties” include Blemish and its affiliates, officers, employees, agents, partners, and licensors.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (b) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITE WILL BE CORRECTED; AND (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
LIMITATION ON LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BLEMISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SITE; (e) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (f) ANY OTHER MATTER RELATING TO THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF BLEMISH CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Blemish Content, or (iii) your breach of these Terms. We will provide notice to you promptly of any such claim, suit, or proceeding.
You agree to indemnify and hold Blemish Inc., its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to (a) your use of the Site (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your account, in any way (by operation of law or otherwise) without Blemish’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
CHOICE OF LAW; ARBITRATION
These Terms and the relationship between you and Blemish are governed by and will be construed under the laws of the State of New York without regard to the conflicts of laws provisions thereof. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York.
Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in New York County, New York, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK.
Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Site, and to block or prevent future access to and use of this Site for any reason or no reason. Upon termination, these Terms will still apply.
WE RESERVE THE RIGHT TO UPDATE AND REVISE THESE TERMS AT ANY TIME
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the notpot.com website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them, but that means you will no longer be able to use the Services. If you use the Services after we change the Terms, you then agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Our failure to partially or fully exercise any rights or our waiver of any breach of these Terms by user shall not prevent our subsequent exercise of such right or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
If any of these Terms is be deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition.
These Terms constitute the entire agreement between the user and Blemish with respect to this Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to this Site. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved.