DERMACLEAR TERMS OF SALE & USE
CREDIT CARD BILLING DESCRIPTOR: DERMACLEAR8005195346
Effective as of September 2016
CAREFULLY READ AND AGREE TO THE TERMS BELOW:
ATTENTION: This is a binding legal agreement between you, the person or entity agreeing to the terms contained in this document ("you", "your" or "Customer"), and Dermaclear ("we", "our", "us" or "Dermaclear"), the owner and administrator of the website located at www.dermaclearpro.com, and any and all of its sub-pages (collectively, the "Website") regarding your use of the Website along with related services, features, content, and offers provided on the website.
Subject to your continued strict compliance with the terms and conditions of this TOU, Dermaclear provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicenseable, and non-transferable license to use the Website. You may download and print materials and information from the Website solely for your personal use, provided that you do not remove from any such hard copies any copyright and/or other applicable intellectual property notices. Notwithstanding the foregoing license grant, you hereby acknowledge and agree that (i) the content layout, formatting, and features of and access privileges for the Website shall be determined by Dermaclear in its sole and absolute discretion; (ii) Dermaclear has the right to control and direct the means, manner, and method by which the Website is provided; (iii) Dermaclear may, from time to time, engage independent contractors, consultants, or subcontractors to aid Dermaclear in providing the Website or use thereof; and (iv) Dermaclear has the right to provide the Website to others. In addition, you hereby acknowledge and agree that this TOU provides you with only a limited license to access and use the Website. Accordingly, you hereby acknowledge and agree that Dermaclear transfers no ownership or intellectual property interest or title in and to the Website to you or anyone else under this TOU. Dermaclear hereby reserves any and all intellectual property rights not otherwise expressly granted in this TOU. In addition, you acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.
Except where prohibited by law, you and Dermaclear agree that any dispute between us (including disputes against any agent employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other) relating to our Website, the Services or Materials provided through our Website, any transaction or relationship between us resulting from your use of our Website, communications between us, or the purchase, order, or use of our products, that cannot be resolved through an informal process or through negotiation within 120 days shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, and the arbitration decision may be enforced and judgment entered thereon in any court of competent jurisdiction. Any such arbitration will take place in the county or municipality where we have a principal business address or such other location where we mutually agree. We may also mutually agree to have the arbitration conducted by telephone or based on written submissions. You and Dermaclear agree that this arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act ("FAA"), and not by any state law concerning arbitration. You and Dermaclear further agree that any determination regarding the applicability, enforceability, or validity of this arbitration agreement will be made by the arbitrator, not by any court.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award. The arbitration will be administered by the American Arbitration Association ("AAA"), and conducted under AAA's Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") then in effect at the time of the dispute. You may obtain copies of the AAA Rules and forms and instructions for initiating arbitration by visiting the AAA website at www.adr.org, or by calling AAA at (800) 788-7879. If you initiate arbitration, Dermaclear will reimburse you for any standard filing fee which may have been required by AAA once you have notified Dermaclear in writing and provided a copy of the arbitration proceedings. However, if Dermaclear is the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys' fees and costs to Dermaclear. If for any reason the AAA is unavailable, the parties shall mutually select another arbitration forum.
You agree that disputes will only be arbitrated on an individual basis and shall not be consolidated on a class wide, representative basis, or with other arbitration(s) or other proceedings that involve any claim or controversy of any other party. No claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any claim submitted to arbitration. The arbitrator may not consolidate more than one person's claims against Dermaclear and may not preside over any kind of representative or class proceeding against Dermaclear, its agents, officers, shareholders, members, employees, subsidiaries, affiliates, predecessors in interests, successors and/or assigns. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then our agreement to arbitrate under this section will not apply and any controversy or claim must be brought exclusively in the State and Federal Courts in California.
YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST DERMACLEAR, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING, NOT USE OUR PRODUCT OR WEBSITE, AND RETURN THE PRODUCT FOR A REFUND WITHIN 30 DAYS OF YOUR ORIGINAL DATE.
While we want everyone to be able to enjoy our Merchandise, we may, in our sole discretion, not accept an order or limit or cancel quantities purchased per person, per household or per order. Some reasons we may do so include, but are not limited to, the following:
100% Money Back Guarantee.
We provide a 30-day Money Back Guarantee for Dermaclear� (less shipping and handling).
The 30-day Money Back Guarantee applies only to original order only and product purchased directly from us through our website (Dermaclear.com) or placed through our toll-free phone order line. Product purchased elsewhere from Amazon.com, EBay or other Internet sites are subject to the return policies of that particular website or store and you must contact them to claim any guarantees they may offer. We will refund the original product price ONLY.
To claim your Money Back Guarantee:
Email us at [email protected] or call us toll free at 1-800-519-5346 and inform us you would like a refund.
We will need:
1. Invoice number
2. Name of customer who placed order
3. Date order was placed
You hereby represent and warrant that:
Notwithstanding the foregoing license grant, you may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use in any manner not expressly permitted herein, any materials from the Website or the Website itself. Specifically, and by way of illustration and not limitation, you may not separate and use any graphics, interfaces, photographs, audio, video, sounds, artwork, designs, computer code (including html code), programs, software, and documentation found on or accessible through the Website. The use of any such material on any other website or computer environment is prohibited.
Moreover, without the express prior written authorization of Dermaclear, you may not:
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DOWNLOADING, COPYING OR REPRODUCING ANY MATERIALS PROVIDED BY DERMACLEAR TO ANY OTHER SERVER, HARD DRIVE OR LOCATION FOR THE PURPOSE OF REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
The Website, and/or any social media page controlled by Dermaclear that is accessible directly through the Website (each, a "Dermaclear Social Media Page"), may contain blogs, message boards, comment areas and other interactive features and functionality where users may post certain information and content (collectively, "Forum"). To the extent the Website and/or any Dermaclear Social Media Page contains any such Forum, you agree that you will, at all times, provide true, accurate, current, and complete information when submitting information or materials on this Website, including, without limitation, when you provide information via a Website registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, Dermaclear reserves the right to terminate immediately your access to and use of this Website. In addition, you hereby acknowledge and agree that when using the Website and/or any Dermaclear Social Media Page, you will not upload, post, display, or transmit any of the following materials on any Forum:
You acknowledge and agree that you have no proprietary interest in any Forum. Moreover, by submitting content or information of any type (a "Posting"), including but not limited to success stories, testimonials, feedback, and/or photographs, to a Forum or by otherwise using the Website and/or a Dermaclear Social Media Page to transmit or display a Posting, you automatically grant Dermaclear a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sub-licensable right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, transmit, perform, and display such content or information (in whole or in part) worldwide and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. You agree to waive any and all moral rights in the Postings. You agree that by making a Posting, such Posting is not confidential for all purposes and Dermaclear shall not be liable for any use or disclosure of such Posting by us or others. You hereby represent that you have all necessary rights to make the Posting available to Dermaclear and a Forum, and you also acknowledge and agree that such Postings are non-confidential for all purposes and that Dermaclear has no control over the extent to which any idea or information within a Posting may be used by any party or person once such content is posted or displayed on the Website and/or a Dermaclear Social Media Page. Accordingly, notwithstanding this right and license, you hereby acknowledge and agree that by merely permitting your information, content, and materials to appear on the Website and/or a Dermaclear Social Media Page, Dermaclear has not become and is not a publisher of such information, content, and materials and is merely functioning as an intermediary to enable you to provide and display a Posting. Moreover, Dermaclear assumes no responsibility for the deletion of or failure to store any Posting and recommends that you do not post, display, or transmit any confidential or sensitive information. All users shall remain solely and exclusively responsible for any liability arising from their own Postings.
Actual or attempted unauthorized use of the Website may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986. Dermaclear reserves the unqualified right to view, monitor, and record activity on the Website without any notice to or permission from you. Any information obtained by monitoring, reviewing, or recording your use of the Website is subject to review by law enforcement organizations in the sole and absolute discretion of Dermaclear. Dermaclear will also comply with all legally binding requests for such information including, without limitation, the provision of information pursuant to a court order. In addition to the foregoing, and in its sole and absolute discretion, Dermaclear reserves the right, to at any time and without advance notice, modify, suspend, terminate, or temporarily interrupt operation of or access to the Website or any portion thereof.
In no event shall Dermaclear or its affiliates, subsidiaries, parents, assignees, licenses, and their respective officers, directors, employees, subcontractors (collectively, "Released Parties"), be liable to you, whether in contract, tort, strict liability, warranty or otherwise (collectively, "Claims"), for any direct or indirect, special, incidental, exemplary, consequential or punitive damages (including without limitation lost profits, cost of procuring substitute service or lost opportunity), arising from or related to this Agreement, the products or services, or Customers' use of the Website or any product. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply.
You agree to defend, indemnify, and hold harmless Dermaclear, its related companies and each of their respective officers, directors, shareholders, employees, independent contractors, telecommunication providers, affiliates, third party information providers, licensors, agents, and others involved in the delivery of products, services or information through the Website (collectively, "Indemnified Parties"), from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands directly, indirectly, and/or consequentially resulting or allegedly resulting from your breach of this Agreement by you. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, attorneys' fees, and litigation expenses the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed through the Website.
Any notice required to be given under this Agreement to you may be provided to you by postal mail or by email. If notice is sent by email, such notice shall be sent to the last known email address that you provided to us, and shall be deemed delivered once sent. Notices by customers to Dermaclear must be sent in writing to the following address:
Dermaclear, Attention: Legal
406 9th Ave, Ste 310
San Diego, CA 92101.
Dermaclear shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Dermaclear's performance.
* Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed exclusively by the laws of the State of California, without regard to its principles of conflicts of law. Should the arbitration provision below be found to be inapplicable or unenforceable, you consent and submit to the exclusive jurisdiction of the state and federal courts located in San Diego, California, United States of America, in all questions and controversies arising out of your use of the Website and this Agreement. To the extent allowed by applicable law, any claim or cause of action arising from or relating to your access or use of the Website must be brought within two (2) years from the date on which such claim or action arose or accrued. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this TOU and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this TOU or Dermaclear services, materials, events and/or products accessed or purchased through this Website, to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Website is controlled and operated by Dermaclear from its offices and facilities within the United States. Dermaclear makes no representation that the Website is appropriate or available for use in other locations, and access to the Website from territories or nations where any aspect of the Website is illegal is hereby expressly prohibited. You access the Website solely on your own volition and are responsible for compliance with all applicable local laws.
* Rights to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party's breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
* Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
* Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable pursuant to applicable law, including but not limited to, the warranty disclaimers and the liability limitations set forth above, then that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect. Further, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision drafted and provided by Dermaclear in its sole and absolute discretion that most clearly matches the intent of the original provision and the remainder of this TOU shall continue in effect.
* Attorneys' Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney's fees and costs incurred in connection therewith, including attorney's fees incurred on appeal.
* No Waiver. Failure to insist on strict performance of any of the terms and conditions of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by Dermaclear of any right or provision under this Agreement shall be deemed a waiver of the same right or provision under this Agreement at any other time.
* Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
* Modifications. Dermaclear reserves the right to change or discontinue, temporarily or permanently, the Website as a whole and any or all of the Website features, products, prices of products, services or information appearing on, or available through, any or all of the Website with or without notice to you, and any of the provisions posted herein. You agree to review these terms and conditions each time you visit the Website. You agree that Dermaclear shall not be liable to you or any third party for any modification or discontinuance of such features, products, prices, services, or information on the Website or the Website itself. Your continued use of the Website following any changes to these terms and conditions constitutes your acceptance of such changes. Dermaclear does not and will not assume any obligation to provide you with notice of any change to this document. Unless accepted by Dermaclear in writing, these terms and conditions may not be amended by you.
406 9th Ave, Suite 310
San Diego, CA 92101
If you have questions regarding this Website or if you are interested in obtaining more information concerning Dermaclear and its products or services or permission to use any Dermaclear content, please contact Dermaclear at 800-519-5346 or [email protected]
© 2016 Dermaclear.