TERMS AND CONDITIONS OF WEBSITE USE

 

Last Updated: September 28, 2016

  

  1. CONTROLLING PROVISIONS: No terms and conditions other than the Terms and Conditions of Website Use (“Terms and Conditions”) contained herein shall be binding upon BABOR Cosmetics America Corp. (hereinafter “BABOR”) unless accepted by it in a writing signed by an officer of BABOR. All terms and conditions contained in any prior oral or written communications are superseded by these Terms and Conditions. Buyer will be deemed to have assented to all Terms and Conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection with the said goods and/or services.

 

Please note that your use of our Website constitutes your agreement to follow and be bound by these Terms and Conditions. We may modify these Terms and Conditions or other policies set forth on the Site from time to time. When we modify these Terms and Conditions, we will update the “Last Updated” line above.

It is your responsibility to regularly review these Terms and Conditions. Your use of the Site following the posting of an updated Terms and Conditions constitutes your acceptance of such updated Terms and Conditions.

 

  1. EMAIL: Buyer is aware they will receive order emails which are sent as part of the order process. Also, unless Buyer opts out, Buyer will receive periodic promotional emails from BABOR about BABOR's promotions and products. To permanently opt out of promotional emails Buyer can indicate they do not want to receive promotional emails in the notes section of checkout step 3 or by contacting us by email at concierge@babor.com or by phone at (800) 333-4055. Also, Buyer can permanently opt out by clicking the unsubscribe link in any of the promotional emails BABOR sends.

 

  1. TERMS: Buyer agrees to pay for the products according to BABOR's payment terms. In the event Buyer fails to make any payment to BABOR when due, Buyer's entire account(s) with BABOR shall become immediately due and payable without notice or demand. All past due amounts are subject to service charges at the maximum contract rate permitted by law.

 

 

  1. DELIVERY: BABOR will make a good faith effort to complete delivery of the products as indicated by BABOR in writing, but BABOR assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to BABOR, including, but not limited to, liability for BABOR's non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of BABOR. Under no circumstances shall BABOR be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.

 

Order and Delivery can only be provided for / to addresses within the United States.

 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 4.

 

 

  1. PAYMENT: Payment terms are Credit Card only. Buyer’s obligation to pay all amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever.

 

Any disputed purchase amounts should be reported immediately. If BABOR agrees with the purchase dispute, BABOR will credit Buyer the amount of the agreed-upon purchase dispute. All purchase disputes must be made within fourteen (14) days of the applicable purchase date.

 

  1. PRICING: We strive to ensure accuracy in pricing on our website, however, errors may occur. We cannot be held responsible for any misrepresentation in pricing that might arise and apologize for any inconvenience that may result should this occur.

 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 6.

 

  1. INDEMNIFICATION: BABOR shall not be responsible for any losses or damages sustained by the Buyer or any other person because of misuse or misapplication of the products. Buyer shall defend, indemnify and hold harmless BABOR and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorneys’ fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, or use of the products by Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, BABOR, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.

 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.

 

  1. WARRANTIES DISCLAIMER: This Site and the materials and products on this Site are provided “as is”. Except as otherwise provided on each product, BABOR disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. BABOR does not represent or warrant that the functions contained in the Site will be uninterrupted or error-free, that the defects will be corrected, or that this Site or the server that makes the Site available are free of viruses or other harmful components. BABOR does not make any warrantees or representations regarding the use of the materials in this Site in terms of their correctness, accuracy, adequacy, usefulness, timeliness, reliability or otherwise. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.

 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 8.

 

  1. INSPECTION AND ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported within one (1) day following delivery to Buyer. Buyer shall have two (2) days from the date Buyer receives any products to inspect such products and services for defects and nonconformance that are not due to damage, shortage or errors in shipping and notify BABOR, in writing, of any defects, nonconformance or rejection of such products. After such two (2) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such two (2) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer or its representatives or cancels any order without BABOR's written consent and payment to BABOR of all charges, expenses, commissions and reasonable profits owed to or incurred by BABOR.

 

  1. RETURNS: ALL SALES ARE FINAL. BABOR, in its sole discretion, may make an exception and a Return Merchandise Authorization (RMA) may be approved by an officer of BABOR. The authorized returns shall be subject to the following deductions: (a) cost of putting items in salable condition; (b) transportation charges, if not prepaid; and (c) handling and restocking charges. BABOR may waive the restocking charge if the product: (i) is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) has not been used, altered or damaged. Said waiver must also be approved by an officer of BABOR.

 

  1. SHIPMENTS: All products are shipped F.O.B., point of shipment. Risk of loss shall transfer to the Buyer upon tender of goods to Buyer, Buyer's representative, or common carrier. The cost of any special packing or special handling caused by Buyer's requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if BABOR ships or delivers the products erroneously because of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as BABOR's responsibility ceases upon tender of goods to Buyer, Buyer's representative or common carrier. BABOR will provide proof of delivery upon request.

 

  1. TAXES: The amount of any sales, excise or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides BABOR with an exemption certificate acceptable to the taxing authorities. Any taxes which BABOR may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to BABOR upon demand.

 

  1. SEVERABILITY: These Terms and Conditions shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these Terms and Conditions and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the Terms and Conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance here from.

 

  1. NON-WAIVER: BABOR's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of BABOR's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed an officer of BABOR.

 

  1. NOTICE: Any required notices shall be given in writing, in the case of BABOR, at BABOR Cosmetics America Corp., 430 S Congress Avenue, Suite 2, Delray Beach, FL 33445. In the case of Buyer, at the address designated on Buyer’s purchase order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon personal delivery, overnight delivery or five days following deposit in the mail.

 

  1. GOVERNING LAW: These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. Subject to the Arbitration provision set forth in Section 17, you hereby consent and submit to the personal jurisdiction in the state and federal courts located in Palm Beach County, Florida.

 

IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN SECTION 19.

 

  1. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER

In order to expedite and control the cost of disputes, you and BABOR agree that any legal or equitable claim relating to use of this Site or the purchase of any BABOR product from this Site (referred to as a “Claim”) will be resolved as follows:

 

  1. A. INFORMAL RESOLUTION:

You and BABOR will first attempt to resolve any Claim informally. In the event that any dispute between BABOR and you arises out of or relates to these Terms and Conditions, the applicability of these Terms and Conditions to the use of any BABOR Site, or purchase of any BABOR products from this Site, or to breach or enforcement, interpretation or validity of these Terms and Conditions, you and we agree to try to promptly resolve any such dispute informally. Please send a written notice describing the dispute to customercare@babor.com

 

  1. FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER:

READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION. You agree that any dispute, controversy or Claim arising out of or relating to these Terms and Conditions, the applicability of these Terms and Conditions as to the use of any BABOR Site, or the purchase of any BABOR products from this Site, or to breach or enforcement, interpretation or validity of these Terms and Conditions, or the determination of the scope or applicability of Arbitration shall be governed solely by the Federal Arbitration Act.

 

If you and BABOR cannot resolve a Claim informally, any Claim asserted by either party will be resolved only by binding Arbitration. By agreeing to Arbitration, both you and BABOR understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes. Instead of suing in court, both you and BABOR each agree to settle disputes (except certain small claims) only by Arbitration. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. The rules in Arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms and Conditions as a court would.

 

The Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms and Conditions. If there is a conflict between JAMS Rules and the rules set forth in these Terms and Conditions, the rules set forth in these Terms and Conditions will govern. You may, in Arbitration, seek any and all remedies otherwise available to you pursuant to the law of the governing state. If you decide to initiate Arbitration, BABOR agrees to pay the Arbitration initiation fee and any additional required deposit required by JAMS to initiate your Arbitration. You and BABOR agree to pay the costs of the Arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the Arbitration, will be paid in accordance with JAMS Rules. The Arbitration will be held at a location in your home town area if possible, unless you and BABOR both agree to another location or telephonic Arbitration. To initiate Arbitration, you or BABOR must do the following things:

 

(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.

 

(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS [to your local JAMS office] or to JAMS, 7500 N. Military Trail, Suite 200, Boca Raton, Florida.

 

(3) Send one copy of the Demand for Arbitration to the other party.

 

Special Rules in the Arbitration Proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor BABOR shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Accordingly, you and BABOR agree that the JAMS Class Action Procedures do not apply to our Arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable. Notwithstanding the obligation to arbitrate all Claims under these Terms and Conditions, you may assert an individual Claim in small claims court in lieu of Arbitration.

 

  1. LIMITED TIME TO FILE CLAIMS

You agree that you will assert any Claim arising out of your use of any BABOR Site or the purchase of any BABOR product from this Site within one (1) year after the Claim arises, or such Claim will be barred.

 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 18.

 

  1. EXCLUSIONS AND LIMITATIONS; CONSUMER PROTECTION NOTICE

If you are a consumer, the provisions in these Terms and Conditions are intended to be only as broad and inclusive as is permitted by the laws of your State of residence. If you are a New Jersey consumer, the terms of Sections 4, 6, 7, 8, 16 and 18 do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms and Conditions are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, BABOR reserves all rights, defenses and permissible limitations under the law of your State of residence. Notwithstanding the foregoing, nothing in this Section shall modify Subsection 17(B) (“Formal Resolution by Arbitration/Class Action Waiver”).

 

  1. ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The Terms and Conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by an officer of BABOR. All transactions shall be governed solely by the Terms and Conditions contained herein.