These Terms and Conditions are a binding legal agreement between you and Third Day Beauty LLC and Cookus Interruptus (“TDB”, “our”, “we”, “us”).
By visiting or purchasing a product from ThirdDayBeauty.com or CookusInterruptus.com (the “Site”), you agree to abide by these Terms and Conditions as they may be amended from time-to-time.
By agreeing to these Terms and Conditions, you are agreeing to waive certain legal rights including, but not limited to, agreeing to participate in mandatory arbitration to resolve any legal claims against us and waiving your right to pursue a jury trial or participate in a class action lawsuit filed against us. Learn more below in paragraph 18
1. INTENDED USE – UNITED STATES. The Site is intended for use by individuals and businesses located in the United States. We do not envisage offering products to individuals in the European Union nor monitoring said individuals pursuant to Article 3(2) of the General Data Protection. You agree to forgo visiting or purchasing from this Site if you are located in the European Union and further agree not to use an IP cloaking system including, but not limited to, VPNs.
3. PRODUCT PURPOSE. You understand that the products sold on this Site are intended for beauty enhancement and are not intended as medical remedies. This Site is not intended to provide diagnosis, treatment or advice for medical issues you may have. Products, services, information and other content provided on this Site, including information accessible by linking to third-party websites are provided for informational purposes only. Please consult with a physician or other healthcare professional regarding any medical or health related diagnosis or treatment options. The products and claims made about specific products on or through this Site have not been evaluated by the United States Food and Drug Administration and are not approved to diagnose, treat, cure or prevent disease.
4. ORDER ACCEPTANCE POLICY. Your receipt of an electronic or another form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right to refuse service to anyone.
5. PRODUCT CHANGES. All prices, materials, design, color, contents included with a product, and product specifications are subject to change without notice. Product photos are for illustration purposes only. Some product colors and labels may differ from actual photos.
6. RECURRING ORDERS. You may choose, but are not obligated, to purchase particular products to be delivered on a reccuring basis for which you will be charged on a recurring basis You can terminate recurring product orders by contacting us at firstname.lastname@example.org or (888) 254-5130.
7. RETURNS AND REFUNDS. We accept returns and offer full refunds on all of TDB originally created products within sixty (60) days of your order with no questions asked. Please contact us to obtain a return merchandise authorization number prior to returning the product in question. If you purchase a product from a third-party website we link to, you should consult with that party regarding their return and refund policy. You agree that TDB shall not be responsible for returns and refunds of products purchased from third party websites.
8. ORDER CHANGES AND CANCELLATIONS. You may request a change to your order or cancel it, provided your order has not already been processed and shipped. Please contact us during business hours to change your order. If an order has already shipped, it can not be changed or canceled.
9. CUSTOMER COMMUNICATION. Periodically, we may communicate with you via email or electronic newsletter. While you may not opt out of administrative email communications [ex: order information], you may opt out of receiving other email communications from us by using the “opt-out” link present in the email messages you receive.
10. BLOCKING VISITORS. We reserve the right, in our sole discretion, to block any party from accessing the Site or placing orders.
11. USER CONTENT. By posting, uploading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site, you grant TDB, its affiliates, officers, directors, employees, consultants, agents, and representatives a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to use User Content in connection with the Internet business of TDB, its websites, the Site, affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. By posting User Content on the Site, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
12. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing the Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit. The burden of proving that any Content does not violate any laws or third party rights rests solely with you.
13. NO WARRANTIES. TDB HEREBY DISCLAIMS ALL WARRANTIES. WE ARE MAKING THE SITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE PRODUCTS PURCHASED THROUGH IT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TDB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE OR PRODUCTS SOLD THROUGH IT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE OR THE PRODUCTS OFFERED THROUGH THE SITE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.
14. LIMITED LIABILITY. OUR LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, EMOTIONAL DISTRESS, BODILY INJURY, LOSS OF EARNINGS, OR MEDICAL BILLS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR PRODUCTS AVAILABLE THROUGH THE SITE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. TO THE EXTENT PERMITTED UNDER LAW. THE PARTIES AGREE THE EXTENT OF ANY MONETARY AWARD AGAINST TDB SHALL BE LIMITED TO NO MORE THAN $1,000 PER CLAIM IN WHICH YOU ARE DECLARED THE PREVAILING PARTY IN LEGAL PROCEEDINGS AS DETAILED IN THIS AGREEMENT.
15. EXCLUSIONS AND LIMITATIONS. 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 OF SECTIONS 13 AND 14 MAY NOT APPLY TO YOU.
16. SITE TERMINATION. We reserve the right to no longer make available all or part of the Site or any products listed on the Site at any time in our sole discretion.
17. PROHIBITED USES. We impose certain restrictions on your permissible use of the Site. You are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site , overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; (e) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us; or (f) automatically or manually scraping or copying the content from the Site without our consent. Any violation may subject you to civil and/or criminal liability.
18. ARBITRATION AGREEMENT. By agreeing to these Terms and Conditions, you agree to resolve any claim that you may have against TDB on an individual basis in arbitration, as outlined in this Arbitration Agreement section. This will preclude you from bringing any class, collective, or representative action against TDB, and also prevent you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against TDB by someone else.
A. Agreement to Binding Arbitration. You and TDB agree that any dispute, claim or controversy arising out of or relating to (i) these terms and conditions or the existence, breach, termination, enforcement, interpretation or validity thereof, (ii) your access to or use of the Site, or (iii) your purchase, shipment, or use of products offered on the site will be settled by binding arbitration between you and TDB, and not in a court of law.
You acknowledge and agree that you and TDB are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and TDB otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and TDB each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
B. Right To Opt-Out. We are providing you with the right to opt-out of this Arbitration Agreement by notifying us in writing within 30 days of agreeing to these Terms and Conditions. To opt-out, contact us and explain you wish to “opt-out of arbitration agreement” in the submitted message.
C. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitration issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant to it. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of California and the parties expressly agree the venue of any action shall be in state court in San Diego County, California or the federal court of the United States District Court, Southern District of California in San Diego, California, as appropriate for the particular claims asserted.
D. Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration. We hereby consent to receive such notifications via our Contact page. The Arbitrator will be either (1) a retired judge or (2) an attorney specially licensed to practice law in the State of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
E. Location and Procedure. Unless you and TDB otherwise agree, the arbitration will be conducted in San Diego, California. If your claim does not exceed $5,000, then the arbitration will be conducted solely on the basis of documents you and TDB submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim does not exceed $20,000, then the arbitration will be conducted on the basis of documents you and TDB submit to the Arbitrator and each parties presence by phone or in person, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $35,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
F. The Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only for the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The parties shall bear their own attorneys fees associated with the arbitration proceeding.
G. Fees. The parties shall each pay one-half of all fees charged by the arbitrator and AAA.
H. Changes. If TDB changes this Arbitration Agreement after the date you first agreed to this Agreement (or to any subsequent changes), you may reject any such change by providing TDB written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided by contacting us at email@example.com. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you agree that you will arbitrate any dispute between you and TDB in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to this Agreement.
I. Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these terms and conditions; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) 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.
J. Should a court of competent jurisdiction or arbitrator rule this arbitration clause invalid in its entirety, the parties agree any disputes between them shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to rules regarding conflicts of law. The parties further agree the choice of forum and venue for litigating any disputes shall be in the state court in San Diego County, California or the federal court of the United States District Court, Southern District of California in San Diego, California, as appropriate for the particular claims asserted.
19. INDEMNITY. You agree to indemnify, defend, and hold harmless TDB, its affiliates, officers, directors, employees, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Site or products ordered through the Site, including your shipment of products to third parties, your violation of these Terms and Conditions, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. TDB will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
20. COPYRIGHT. All contents of Site, excluding user generated content, are: Copyright 2018 Third Day Beauty, LLC. All rights reserved.
21. SEVERABILITY; WAIVER. If a court of competent jurisdiction finds any term or condition in these Terms and Conditions to be unenforceable, all other Terms and Conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms and Conditions shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
22. NO LICENSE. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by TDB or by any third party.
23. FORCE MAJEURE. Neither you nor we shall be deemed in material breach of these Terms and Conditions or any other legal requirement to the extent the breach or failure to perform results from any cause beyond the reasonable control of either party without fault or negligence on the part of the party including, but not limited to, acts of God, acts of Nature, acts of government or military, embargoes, acts of terrorism, fires, explosions, earthquakes, floods, severe weather conditions, failure of electrical equipment, war, or riots. In the event of any such excused delay, the time to perform or remedy the material breach shall be equal to the time lost by reason of the delay.
24. AMENDMENTS. We reserve the right to amend this document and shall notify you of any such amendments by posting a notice on the login page of the Site and by forwarding an email to you, if we have an email address for you on file. Said amendment shall be binding 30 days after notification is provided. You may reject the amendments by opting out of our email list.
Please contact us if you have any questions about these terms and conditions.