NEZ TERMS OF SERVICE
Effective Date: October 3, 2022
These Terms of Service contain an arbitration provision and class action waiver. Please review the Section 16 below for details.
These Terms of Service (these “Terms”) apply to your access to and use of the website www.nezcare.com and other online or mobile products and services (collectively, our “Services”) provided by M+ODE Products, LLC, (“nez” “we” “our” or “us”). If you use our Services to purchase any of our personal care, body care, beauty products, or other goods we offer for sale via our Services (collectively, our “Products”), such purchase is governed by these Terms, including the Terms of Sale set forth in Section 11 below.
By creating an account, purchasing any of our Products, or otherwise using our Services, you agree to be bound by these Terms, including the mandatory arbitration provision and class action waiver in Section 16. If you do not agree to these Terms, do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make changes, we will give you notice by posting the revised Terms on the website. Those changes will go into effect on the Effective Date shown in the revised Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have questions about our Products or an order you have placed, please contact our nez support team at email@example.com. If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
You must be at least 13 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity; (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf; and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. User Accounts and Account Security
You may be able to register for an account to access certain features of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. User Content
Our Services may allow you and other users to create, post, store and share content, such as messages, text, photos, videos, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and nez.
You grant nez and any future subsidiaries and affiliates a perpetual, non-exclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on our Services, you understand that your User Content and any associated information (e.g., your first name or profile photo associated with a product review or caption associated with a photo you share) may be visible to others.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason without notice.
5. Prohibited Content and Conduct
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Products and our Services. You will not: (a) sell, resell or commercially use our Products or our Services (b) engage in any harassing, threatening, intimidating, predatory or stalking conduct; (c) impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity; (d) copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; (e) modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; (f) use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner; (g) reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services; (h) use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; (i) develop or use any applications that interact with our Services without our prior written consent; (j) bypass or ignore instructions contained in our robots.txt file; or (k) use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that: (i) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (ii) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (iii) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (iv) contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; (v) impersonates or misrepresents your affiliation with, any person or entity; (vi) contains any unsolicited promotions, political campaigning, advertising or solicitations; (vii) contains any private or personal information of a third party without such third party’s consent; (viii) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (ix) in our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose nez or others to any harm or liability of any type
Enforcement of this Section 5 is solely at our discretion, and failure to enforce this Section 5 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.
6. Ownership; Limited License
Our Services, including any text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by nez or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
nez and all of its logos, product or service names, slogans, and the look and feel of the Services are trademarks of nez and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about nez, our Products, or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in our sole discretion. You understand that nez may treat Feedback as nonconfidential.
9. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify nez’s designated agent as follows:
Designated Agent: Copyright Agent
Address: 3509 Alma Avenue, Manhattan Beach, CA 90266
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to nez for certain costs and damages.
10. Third-Party Content
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. nez does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
11. Terms of Sale
The Term of Sale set forth in this Section 11 apply to the purchase of Products using our Services. By purchasing a Product via our Services, you accept and agree to be bound by these Terms of Sale. If you do not agree to these Terms of Sale, do not purchase Products via the Services.
12. Order Eligibility
To complete your purchase, you must have a valid billing and shipping address within the United States that can be selected for the billing and shipping addresses as part of the checkout process on the Services.
13. Product Availability, Display, and Specifications
- Details of Products available for purchase are set out on our Services. All features, content, descriptions and prices of our Products described or depicted on the Services are subject to change at any time without notice. We attempt to ensure that information on the Services is complete, accurate, and current. Despite our efforts, the information on the Services may occasionally be inaccurate, incomplete, or out of date. We make no representation as to the completeness, availability, accuracy or currency of any information on the Services. For example, Products included on the Services may be unavailable or may have different attributes or ingredients than those listed. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order).
We make reasonable efforts to publish information and display Product images accurately, but we cannot guarantee that the image you see on your monitor or mobile device will exactly match the Product. Packaging and labeling may vary from that shown and may contain more and/or different information from that shown on the Services. You should not solely rely on the information presented on the Services and should always read labels, warnings, and directions for safe use on the labeling and package you receive before using any of our Products.
- Purchase Restrictions and Quantity Limits
You may only purchase Products for personal use by either yourself or your intended recipient of the Products. The Products are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per account, per credit card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.
- Order Process; Errors
You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. We will send you an email acknowledging your order shortly after you place it, and our acceptance will be complete at the time we send such email. We will arrange for shipment of the Products to you. You will pay all shipping and handling charges specified during the ordering process. Title and risk of loss in any Products you purchase pass to you when the shipping carrier receives the goods from nez. Shipping options and availability of promotions like free shipping may not be available for all locations or address types. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
We reserve the right to refuse or cancel any order prior to delivery. For example, if there are errors on the Services or made in connection with your order, inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We also may require verification of information prior to the acceptance and/or shipment of any order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. Please see our Shipping and Returns page for more details on shipping.
Prices shown on the Services exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the check-out page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. Each item in your shopping bag is shown at the current price. All prices on the Services are subject to change at any time without notice.
The Services give you several payment options. We reserve the right to change the payment options we offer at any time and for any reason. Payment must be received by us before our acceptance of an order. When you provide credit card information or other information necessary to facilitate payment for your order, you represent that (a) you are the authorized user of the credit card that is used to pay for our Products, (b) the credit card information you supply is true, correct and complete, (c) charges incurred by you will be honored by your credit card company, and (d) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any.
In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds will be made to the same method of payment and account used to place the order or can be issued as store credit if you select that option.
- Return Policy
Please see our Shipping and Returns page for more details on returns.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless nez and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “nez Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Products or Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Products or Services. You will promptly notify nez Parties of any third-party Claims, cooperate with nez Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). The nez Parties will have control of the defense or settlement, at our sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and nez or the other nez Parties.
15. Disclaimer of Warranties and Release
YOUR USE OF OUR PRODUCTS OR OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR PRODUCTS AND OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, nez DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE nez ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.
To the fullest extent permitted by applicable law, you release nez and the other nez Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) your use of our Products or Services; (b) disputes between users of our Services; and (c) the acts or omissions of third parties.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, nez AND THE OTHER nez PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF nez OR THE OTHER nez PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF nez AND THE OTHER nez PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO PURCHASE PRODUCTS VIA OUR SERVICES IN THE 12 MONTHS PRECEDING THE CLAIM.
The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of nez or the other nez Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
17. Transfer and Processing Data
In order for us to provide our 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. Dispute Resolution; Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION 16 CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH nez 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.
19. No Representative Actions
You and nez agree that any dispute arising out of or related to these Terms, our Products, or our Services is personal to you and nez 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.
20. Arbitration of Disputes.
Except for small claims disputes in which you or nez seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or nez seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and nez waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Products, or our Services resolved in court. Instead, for any dispute or claim that you have against nez or relating in any way to our Products or Services, you agree to first contact nez and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to nez by email at email@example.com or by certified mail addressed 3509 Alma Avenue, Manhattan Beach, CA 90266. 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 nez 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 before one arbitrator. Arbitration proceedings will be held in the State of Delaware or may be conducted telephonically or via video conference for disputes alleging damages less than $5,000, unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). For purposes of this Section 16, you will be deemed a “consumer” if you use our Products and Services for your personal, family or household purposes. 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.
You and nez agree that these Terms affect interstate commerce and that the enforceability of this Section 16 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. As limited by the FAA, these Terms 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.
The arbitrator, nez, 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 arbitration will allow for the discovery or exchange of non-privileged information relevant to the dispute. 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.
You and nez agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and nez will pay the remaining JAMS fees and costs. For any arbitration initiated by nez, we will pay all JAMS fees and costs. You and nez agree that the state or federal courts of the State of Delaware and the United States sitting in the State of Delaware have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and nez will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 16 by emailing us at: 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 16.
If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; 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 16 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 16 will be enforceable.
22. Governing Law and Venue
Any dispute arising from these Terms and your use of the Products or Services will be governed by and construed and enforced in accordance with the laws of the State of Delaware except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Delaware.
23. Modifying and Terminating our Services
We reserve the right to modify our Products or Services or to suspend or stop providing any of our Products or all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of nez to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.