1. Site Content, Ownership, Limited License, and Rights of Others
All materials and content on our sites and applications are protected by copyrights, trademarks, or other intellectual property rights. These materials are owned by Eben Cosmetics, LLC (“Eben,” “we,” “our,” or “us”), or are used with permission of their owners or as otherwise authorized by law. Such materials include, but are not limited to, trademarks, content, photographs, images, illustrations, text, videos, and other materials. Eben trademarks include, but are not limited to, Eben Naturals, and other Eben brands, logos and tag lines. All rights are reserved, worldwide.
Subject to your strict compliance with these Terms, Eben grants you a limited, non-exclusive, revocable, non-assignable, personal and non-transferable license to use our sites and applications for your personal, non-commercial purposes only.
When using our sites and applications, you must respect the intellectual property and other rights of Eben and others. Your unauthorized use of content from our sites or applications may violate copyright, trademark, privacy, publicity, communications and other laws, and any such use may result in your personal liability, including potential criminal liability. Eben respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it on our sites or applications, please review Reporting Potential Copyright Infringement to us, below.
2. Site Use and Restrictions
Any unauthorized use of our sites or applications for any purpose is prohibited. We may suspend or terminate the availability of our sites or applications (and any elements or features of them), in whole or in part, for any reason, and at any time, in our sole discretion, and without advance notice or liability.
You agree that you will not:
aside from your purchase of goods or services offered for sale by Eben or its affiliates, use our sites or applications for any political or commercial purpose;
engage in any activities through or in connection with our sites or applications that attempt to or do harm any individuals or entities or are unlawful, offensive or abusive, or that violate any right of any third party, or are otherwise objectionable to Eben;
reverse engineer, decompile, disassemble, reverse assemble or modify any site or application source or object code or any software or other products, services, or processes accessible through any portion of our sites and applications;
engage in any activity that interferes with another user’s access to our sites or applications or the proper operation of our sites or applications, or otherwise causes harm to our sites or applications, Eben or other users;
interfere with or circumvent any security or access feature of our sites or applications;
otherwise violate these Terms.
You also agree that, in using our sites and applications:
you will not copy or distribute any content from our sites or applications manually or by using any robot, scraper, crawler, or any other automatic device or process;
you will not frame or utilize framing techniques to enclose any content from our sites (including any images, text, or page layout);
you will keep intact all trademark, copyright, and other intellectual property notices contained in content from our sites and applications;
you will not use content from our sites or applications in a manner that suggests an unauthorized association with any of our or our licensors’ products, services or brands;
you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit content from our sites or applications in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of an officer of Eben or, in the case of content from a licensor, the owner of the content; and you will not insert any code or product to manipulate content on our sites or applications.
3. Creating and Terminating Accounts; Limitations of Liability
1. Creating and Terminating Accounts:
To use some of the features on our sites and applications, you must first register for an account through our online registration process. When you register for an account, you will select your own password (or we may send you an e-mail with an initial password) and you agree that:
You will not use a username (or e-mail address) that is already being used by someone else, impersonates another person, belongs to another person, violates the intellectual property or other right of any person or entity or is offensive. We may reject the use of any password, username or e-mail address for any other reason in our sole discretion.
You will provide true, accurate, current and complete registration information about yourself during the registration process and will update it as needed to keep it accurate. You will immediately notify us of any unauthorized use of your account, password or username, or any other breach of security;
You will not sell, transfer, or assign your account or any account rights.
2. Limitations of Liability:
You are solely responsible for all activities that occur under your account, password and username whether or not you authorized the activity.
You are solely responsible for maintaining the confidentiality of your password and for restricting access to your device(s) so that others may not access any password protected portion of our sites or applications using your name, username, or password.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations in Sections 3(A) or 3(B). If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated or incomplete, or violates these Terms, or any applicable law, we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits all in our sole discretion, for any reason, and without advance notice or liability.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 3(B).
3. Postings You Make (“User-Generated Content”)
Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title and interest that you have in your User-Generated Content and you remain ultimately responsible for it. You hereby grant to Eben a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and cost-free right and license to use any User-Generated Content that you create or post in any manner, as Eben sees fit, including for advertising, marketing or promotional purposes. As such, you acknowledge and agree that User-Generated Content may be made publicly available, and you grant that Eben may, but is not obligated to, protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at our cost and expense, to which you hereby consent and irrevocably appoint Eben as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
When you submit User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to the User-Generated Content you submit, and that (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit it and grant Eben the rights to it that you are granting by these Terms, all without any Eben obligation to obtain consent of any third party and without creating any obligation or liability of Eben; (b) the User-Generated Content you submit is accurate; (c) the User-Generated Content does not and will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms or cause injury or harm to any person.
Eben may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any User-Generated Content, and Eben may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of our sites and applications.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 4.
3. Rules for User-Generated Content
When you make postings or otherwise create User-Generated Content, you agree to the following:
All of your User-Generated Content either must be your original work or you must have all necessary rights in it from third parties required for you to comply with these Terms. Your User-Generated Content should not contain any logos, phrases or trademarks that belong to third parties.
If we permit you to post or link to photos, link to embedded videos, or otherwise include other images of real people, then you must make sure that they depict only you, or that you have express permission to depict and post images of each other person depicted.
All of your activities on our sites or applications, including User-Generated Content, must be appropriate, as determined by us. Please be respectful of others.
Your User-Generated Content must not be for commercial or political purposes.
Your User-Generated Content must not promote any infringing, illegal or other similarly inappropriate activity.
You may not impersonate any other person, user or company. Do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate or misleading, or that misrepresents your identity or affiliation with a person or company.
All User-Generated Content may be publicly accessible and as such should not contain personal information.
Once you submit User-Generated Content to our sites or applications, you may not be able to edit or remove it.
Your User-Generated Content must not contain viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of our sites or applications or others’ software or devices.
You are solely responsible for your interaction with other users of our sites and applications, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 5.
If you submit User-Generated Content that Eben believes may violate any of these rules, then we may, but are not required to, take any legally available action that we deem appropriate, in our sole discretion, including the removal of such Content or your account or restriction of access to our sites or applications. You may report potential violations of these rules to us at email@example.com.
4. Reporting Potential Copyright Infringement to Us
If you believe that any material on our sites or applications infringes your copyright, please send us a notification, under the Digital Millennium Copyright Act (“DMCA”), by e-mail to firstname.lastname@example.org or by writing to Legal Department, Eben Cosmetics LLC, 350 Lincoln Road, Miami Beach, FL 33139. Please include the following, as required by the DMCA:
1. Identify the copyrighted work(s) you claim is infringed.
2. Identify the material you claim is infringing the copyright(s), and provide enough information for us to reasonably locate that material.
3. Include a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf (the “Claimant”).
4. Include the Claimant’s name, address, and telephone number(s).
5. Include a statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
6. Include a statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
7.. Purchasing Terms and Policies
To purchase any products or services on our sites or applications, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any products or services on our sites or applications, you must provide us with a valid credit card number or third-party payment account and any associated payment information. By submitting that information to us or our credit card processor, you hereby agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For any product or service that you order on our sites or applications, you agree to pay the price applicable (including any sales taxes, shipping and handling, and any applicable surcharges) as of the time you submit the order. Eben will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT EBEN, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Eben of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Eben does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Eben or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use, or value-added taxes. Eben shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.
5. Return Policy
All purchase transactions made through our sites and applications are subject to Eben’s return policy in effect at the time of purchase. Eben’s current return policy does not permit any refund for purchases of products. Shipping and handling charges will not be refunded. We may modify our return policy from time to time, so you should check these terms prior to making purchases on our sites or applications.
6. Order Acceptance Policy
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Eben reserves the right at any time after receipt of your order to accept or decline your order for any reason. Eben further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Eben upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account or payment account in the amount charged for the cancelled portion or the quantity not provided (if your credit card or payment account has already been charged for the order), or (b) we will not charge your credit card or payment account for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with Eben has been effected until you receive a confirmation from us. You will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
7. No Responsibility to Sell Mispriced Products or Services
We do our best to describe every item, product or service offered on our sites and applications as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on our sites or applications is complete, accurate, reliable, current or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Eben shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other payment account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a product you purchased from Eben is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 10.
8. Modifications to Prices or Billing Terms
The purchase of products and services on our sites and applications is subject to availability. PRODUCTS AND SERVICES DISPLAYED MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. EBEN RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON OUR SITES OR APPLICATIONS OR BY E-MAIL DELIVERY TO YOU.
9. Links by You to Our Sites
You may create hyperlinks to our sites, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with Eben or cause any other confusion, and (c) the links and the content on your website do not portray Eben or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, abusive, or that violates any right of any third party or is otherwise objectionable to Eben. Eben reserves the right to suspend or prohibit linking to our sites for any reason, in its sole discretion, without advance notice.
10. Links to Other Websites and Online Services
11. Governing Law
You agree that all matters relating to your use of our sites or applications, your User-Generated Content or these Terms will be governed by the laws of the United States and the State of Florida without regard to its conflicts of laws provisions. You agree to personal jurisdiction by and venue in state and federal courts in Miami, 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 25.
12. Dispute Resolution; Informal Resolution and Formal Resolution by Arbitration
In order to expedite and control the cost of disputes, you and Eben agree that any legal or equitable claim relating to use of this Site or purchase of any products from this Site (referred to as a “Claim”) will be resolved as follows:
13. Informal Resolution:
You and Eben will first attempt to resolve any Claim informally. In the event that any dispute between Eben and you arises out of or relates to these Terms, the applicability of these Terms to the use of Eben’s Sites or applications, or purchase of any Eben or other products on this Site, or to breach or enforcement, interpretation or validity of these Terms, you and we agree to try to promptly resolve any such dispute informally. Please send a written notice describing the dispute to email@example.com.
14. DISCLAIMERS AND LIMITATIONS OF LIABILITY
OUR SITES AND APPLICATIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EBEN SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS OR LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, RESULTING FROM THE USE OR MISUSE OF OUR SITES OR APPLICATIONS, OR THE INFORMATION, DOCUMENTS, OR SOFTWARE THEREIN, EVEN IF EBEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANOTHER PARTY. EBEN DOES NOT WARRANT THAT OUR SITES AND APPLICATIONS WILL BE UNINTERRUPTED OR FREE OF INACCURACIES OR ERRORS, NOR DOES EBEN WARRANT THAT OUR SITES AND APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS.
Your use of our sites or applications, and any reliance on any material published or transmitted by them, is at your own risk. You agree that you hereby release Eben, its affiliates, advertisers, suppliers, distributors and others from any and all liability or obligations arising from the access or use of our sites or applications or any products sold or promoted on them. Your sole remedy for any problem or concern is to exit our sites or applications. Eben reserves the right to restrict or limit access to our sites and applications.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 17.
15. Sites and Applications Operated in the United States
Eben controls and operates our sites and applications from its offices in the United States, and Eben makes no representation that our sites or applications are appropriate or available for use beyond the United States. If you use our sites or applications from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Our sites or applications may describe products and services that are available only in the United States (or only parts of it). We reserve the right to limit the availability of our sites or applications and/or the provision of any content, program, product, service, or other feature described or available on our sites or applications to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 18.
Eben may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Eben.
When you communicate with us electronically, such as via e-mail, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 20.
You hereby agree to defend, indemnify and hold Eben and its subsidiaries and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (each an “Eben Party,” or collectively, “Eben Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Eben Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (a) your User-Generated Content; (b) your use of our sites or applications and your activities in connection with our sites or applications; (c) your breach or alleged breach of these Terms; (d) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of our sites or applications and your activities in connection with our sites or applications; (e) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (f) any misrepresentation made by you; or (g) Eben Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).
You will cooperate as fully required by Eben Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Eben Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Eben Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of an Eben Party.
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 21.
19. No Waiver
Except as expressly set forth in these Terms, (a) no failure or delay by you or Eben in exercising any of rights, powers or remedies under these Terms will operate as a waiver of that or any other right, power or remedy, and (b) no waiver or modification of any term of these Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
20. Severability and Interpretation
If any provision of these Terms is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation.”
SEE SECTION 25 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 23.
21. Amendments or Changes to These Terms
22. Exclusions and Limitations; Consumer Protection Notice
If you have any questions regarding our Terms, practices, or your use of our sites or applications, please contact us at firstname.lastname@example.org or using the information below:
Attn: Eben Cosmetics LLC
350 Lincoln Road, 2nd Floor
Miami Beach, FL 33139