TERMS AND CONDITIONS
LAST UPDATED January 28, 2019
Welcome to the NARS Cosmetics website, www.narscosmetics.ca (the “Website”).
Shiseido (Canada) Inc. ("NARS Cosmetics") provides the content and services available on the Website to you subject to the following terms and conditions (“Terms and Conditions”). Please read these Terms and Conditions carefully before using the Website. By accessing and using this Website, you (and your parent/legal guardian on your behalf, if you are under the legal age of majority in your province/territory of residence) signify that you have read, fully understand and agree to be legally bound by these Terms and Conditions and to comply with all applicable laws and regulations as they may change from time to time. If you do not agree to be legally bound by these Terms and Conditions, you are not permitted to use our Website.
PLEASE BE ADVISED THAT THESE TERMS AND CONDITIONS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDES A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE READ THESE PROVISIONS BEFORE USING THE WEBSITE.
2. SHIPPING & RETURN POLICY
Please review our Customer Care policies which governs purchases you make on the Website, if any, so that you may understand our sales practices.
3. WEBSITE INTENDED AUDIENCE
This Website is intended for and directed to residents of Canada. This Website is not intended to be visited by anyone under the age of 13. You must have reached the age of majority in your province/territory of residence to make a purchase on our Website.
4. ACCURACY OF INFORMATION
We attempt to be as accurate as possible when describing our products on the Website; however, to the extent permitted by applicable law, we do not warrant that the product descriptions, colors or other content available on the Website are accurate, complete, reliable, current, or error-free. The Website is provided free of charge and on that basis we have no obligation to provide any maintenance or support services in relation to it and we are not responsible for any loss or damage you may suffer as a result of any failure to maintain or update the Website. You hereby acknowledge and agree that we reserve the right at any time to modify or discontinue the whole, or any part of, the Website, without notice, and that we will not be responsible or liable, directly or indirectly, to you or any other person or entity for any loss or damage of any kind incurred as a result of any such modifications or discontinuance.
5. INTELLECTUAL PROPERTY
All content available on the Website, including but not limited to text, graphics, logos, button icons, images, audio clips, data compilations and software, and the compilation and arrangement thereof (collectively, the “Content”) is the property of NARS Cosmetics, our affiliates, partners or licensors, and is protected by Canadian and international copyright laws.
The trademarks, logos, certification marks, and service marks displayed on the Website (collectively, the “Trademarks”) are the registered and unregistered marks of NARS Cosmetics, our affiliates, partners or licensors, in Canada and other countries, and are protected by Canadian and international trademark laws.
Except as required under applicable law, neither the Content or Trademarks nor any portion of the Website may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose, except: (i) as strictly required to allow your personal, non-commercial use of the Website (for which we grant you a non-exclusive and revocable license to make personal and non-commercial use of the Website) (the âLimited Licenseâ); or (ii) as outlined in our prior written consent provided to you (a âIndividual Licenseâ). Requests for an Individual License should be directed to our New York office at the address specified below.
900 Third Avenue, 16th Floor
New York, NY 10022
6. ELECTRONIC COMMUNICATIONS
The information communicated on the Website constitutes an electronic communication. When you communicate with us through the Website or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically, subject to local privacy and anti-spam laws, and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
7. MOBILE FEATURES
We may offer features and services that are available to you via your mobile phone. These features and services may include, without limitation, the ability to browse the Website from your mobile device, upload content to the Website, receive messages from the Website, download applications to your mobile phone or access Website features (collectively, the "Mobile Features"). Standard messaging, data and other fees may be charged by your carrier when you use the Mobile Features. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions on how to opt-out of certain Mobile Features will be disclosed in connection with those Mobile Features. The instructions will typically require you to text a keyword (e.g., "STOP," "CANCEL," "END," "UNSUBSCRIBE," "QUIT," etc.) to the applicable shortcode for the Mobile Feature.
8. YOUR OBLIGATIONS AND RESPONSIBILITIES
9. YOUR ACCOUNT
You may choose to register at our Website. If you do, you will have an email address/username and password for your account. You are responsible for maintaining the confidentiality of your account, username and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account, username and/or password. You agree to provide only accurate, truthful information. We reserve the right to refuse service and/or terminate accounts without prior notice if you violate these Terms and Conditions or if we decide, in our sole discretion, that it would be in NARS Cosmetics’ best interests to do so.
NARS Cosmetics has no responsibility and assumes no liability for the unaffiliated sites to which it is linked to or from, including but not limited to the content or web pages or other, products, services or materials on the site linked to the Website or posted to this Website by anyone other than NARS Cosmetics. We may permit some links for convenience, but it is not an endorsement by NARS Cosmetics, our affiliates or our partners of the referenced content, product, service or supplier. Please note that the rules, terms, conditions, and privacy policies of linked sites may differ from those of NARS Cosmetics and should be reviewed by you when you use the link to access the other site. We may, in our sole discretion, request that you remove any link to the Website, and upon receipt of such request, you shall immediately remove such link. By connecting to the Website with a third-party service (e.g., Facebook), you give us permission to access and use information, content and/or material you have supplied to that service as permitted by that service, and to store your log-in credentials for that service.
11. USER GENERATED CONTENT
Any unsolicited suggestions, ideas, inquiries, materials, feedback, or other information you provide us (“User Generated Content”) will be treated as non-proprietary and non-confidential and, by submitting such information, you hereby grant us a non-exclusive, royalty-free, perpetual, transferable, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, distribute and display such information in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works, worldwide and in perpetuity. You also acknowledge that your submission of User Generated Content may not be returned and we may use your User Generated Content, and any ideas, concepts or know how contained therein, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products. You agree that you will not provide to us any User Generated Content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate or in any way violates third party rights as determined by NARS Cosmetics; that you will not post any User Generated Content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential; that you will not impersonate any person or organization, including without limitation, the personnel of NARS Cosmetics, or misrepresent an affiliation with another person or organization; you will not post any User Generated Content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Website, or feature of the Website. We have to right to refuse to post, reject, delete, reformat and edit all User Generated Content, in our sole discretion.
12. SUBSCRIPTON & AUTO-DELIVERY
Your NARS Cosmetics Auto-Delivery item(s) will automatically ship according to the chosen delivery schedule, and your designated credit card will be charged each time it ships unless you cancel or we terminate it for any reason. There is no minimum purchase required, and you can change or cancel your automatic shipments at any time by logging into your account or with a toll-free call to customer service at (866) 880-NARS (6277) or by sending an email to email@example.com.
You are able to make changes to your next scheduled order, skip or cancel up to 2:00 pm EST the day before in order to not be charged for such order. If for any reason, you are unsatisfied with your purchase, our standard Return Policy applies.
For recurring payments, you must pay using a credit card. We regret that you cannot pay using a NARS Cosmetics gift card, merchandise credit or PayPal at this time. Credit card failures may prevent order completion. If we are unable to complete a charge, we may retry up to three times. If your credit card payment fails and you do not update your payment details when you are notified, NARS Cosmetics may cancel your subscription. To update your credit card information, log into your account or contact Customer Service.
Auto-Delivery discount pricing, samples and other benefits are subject to change, at our discretion.
Product pricing, product offerings and product bundles are subject to change without notice. The NARS Cosmetics Auto-Delivery and the product offerings and product bundles sold may be cancelled and/or discontinued at any time by NARS Cosmetics without notice.
13. COPYRIGHT COMPLAINTS
While we are under no legal obligation to actively screen content submitted on the Website from other users, we reserve the right, in our sole and absolute discretion, to modify, edit or remove any such content, or to request a the applicable user to modify, edit or remove his or her content, if a complaint or notice of allegedly infringing materials is received with respect to such content, or for any other reason.
To complain about content submitted by another user on the Website and/or to provide notice of allegedly infringing materials on the Website, please contact us at: DMCA@sac.shiseido.com.
You agree to indemnify, defend, and hold harmless, NARS Cosmetics, its affiliates, parent, and their respective officers, directors, employees, agents, licensors, representatives, and third-party providers to the Website from and against all losses, expenses, damages, and costs, including reasonable lawyers' fees, resulting from any violation of these Terms and Conditions by you. We reserve the right to assume, at our sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify us for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
15. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY
THE WEBSITE IS PRESENTED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE WEBSITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WE ARE NOT RESPONSIBLE FOR TIMELINESS, ACCURACY, UNAVAILABILITY OR INTERRUPTIONS IN AVAILABILITY, VIRUSES OR OTHER DEFECTS IN THE WEBSITE OR ITS CONTENTS. IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) RELATED TO THE SITE REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED ONE HUNDRED DOLLARS CANADIAN($100.00 CAD). NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER PROTECTION RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE. THE TERMS IN THIS SECTION ARE VALID ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
16. JURISDICTION; ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. THESE PROVISIONS MAY NOT APPLY TO YOU AND ONLY APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOLLOWING PROVISIONS OF THIS SECTION MAY NOT APPLY TO RESIDENTS OF QUEBEC.
WE BOTH AGREE TO ARBITRATE: You and NARS Cosmetics agree to resolve any claims relating to these Terms and Conditions through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights (for example, trademark, trade secret, industrial design, copyright, or patent rights). Under such circumstances we may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Website, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this Arbitration Agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
The International Commercial Arbitration Act (R.S.O. 1990, c. I-9) governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the ADR INSTITUTE OF CANADA INC ("ADRIC") or another mutually agreed upon institution or ad hoc process. Unless otherwise agreed, any dispute, controversy, or claim arising out of or relating to these Terms and Conditions shall be referred to and finally determined by arbitration in accordance with the ADRIC Simplified Arbitration Procedure in front of one arbitrator. If there is a conflict between ADRIC Rules and the rules set forth in these Terms and Conditions, the rules set forth in these Terms and Conditions will govern. The ADRIC Rules and instructions for how to initiate an arbitration are available from ADRIC at http://adric.ca or 1-877-475-4353. To initiate arbitration, you or we must do the following things:
(1) Write and sign a Notice of Request to Arbitrate. The notice must include the following:
(a) the name, place of business (if any), and mailing address, telephone number, fax number, and email address of each party to the dispute if known;
(b) an address, fax number (if any), an email address (if any) for delivery of Documents to the claimant;
(c) a brief description of the matters in dispute or a Statement of Claim;
(d) a request to arbitrate the dispute;
(e) an estimate of the amount claimed or, if that is not available, of the value of what is in issue in the dispute. If the claimant cannot estimate this value, it must explain the reason;
(f) a statement of what remedy the claimant is seeking;
(g) a statement that the tribunal is to be made up on only one arbitrator;
(2) Send one copy of the Notice of Request to Arbitrate to the other party.
(3) Send a copy of the Notice of Request to Arbitrate, plus the appropriate filing fee to: ADRIC at firstname.lastname@example.org or to your local ADRIC office or to ADRIC, 407-234 Eglinton Ave E, Toronto, ON M4P 1K8
Unless otherwise agreed to by the parties in advance, payment of all filing, administration and arbitrator fees will be governed by the ADRIC Rules. If travelling to Toronto is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your legal fees). Unless otherwise agreed, arbitration under this Arbitration Agreement shall be held in Canada in Toronto, Ontario under Ontario law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. CONFIDENTIALITY: Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this Arbitration Agreement shall be held in Canada in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and NARS Cosmetics, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and these Terms and Conditions. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
NO CLASS ACTIONS: To the fullest extent permitted by applicable law, the parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration the parties waive any right to a jury trial.
WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND NARS Cosmetics WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN LAWYER IN DECIDING TO ACCEPT THIS ARBITRATION AGREEMENT.
OPT-OUT OF ARBITRATION AGREEMENT: You can decline this Arbitration Agreement by emailing us at email@example.com and providing the requested information as follows: (1)Your Name; (2) the URL to these Terms and Conditions; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms of Conditions. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms and Conditions by using the Website.
CHOICE OF LAW/FORUM SELECTION: In the event any circumstance arises where this Arbitration Agreement permits the parties to litigate in court, these Terms and Conditions shall be governed by the laws of Ontario, Canada as if the Terms and Conditions were a contract wholly entered into and wholly performed within Ontario, Canada.
If any provision in these Terms and Conditions is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of these Terms and Conditions shall remain in effect.
We reserve the right, in our sole discretion, to change these Terms and Conditions at any time by posting the changes on the Website and revising the Last Updated date at the top of these Terms and Conditions. Any changes are effective thirty (30) days after posting to the Website. If you do not agree with any of the changes you should stop using the Website. The sections on indemnification and limitation of liability do not apply to New Jersey residents.