WELCOME TO PEARLESQUE BOX!
PEARLESQUE IS A SUBSCRIPTION BOX FOCUSED ON THE DISCOVERY OF NATURAL SKIN CARE PRODUCTS FROM DIFFERENT REGIONS OF THE WORLD.
THIS DOCUMENT IS A CONTRACT BETWEEN PEARLESQUE BOX INC. (“PEARLESQUE”) AND YOU (“YOU”). THE PEARLESQUEBOX.COM WEBSITE (THE “SITE”) INCLUDES AN ORDER FORM (THE “ORDER FORM”) THAT YOU MAY USE TO PURCHASE THE PEARLESQUE SUBSCRIPTION SERVICE DESCRIBED BELOW (THE “SUBSCRIPTION”). IF YOU ACCEPT THIS CONTRACT BY CLICKING WHERE INDICATED ON THE ORDER FORM OR IF YOU PURCHASE A SUBSCRIPTION OR OTHERWISE USE THE SITE (OR ANY SUBDOMAIN OF THE SITE, WHICH SUBDOMAINS WILL BE DEEMED TO BE INCLUDED IN ANY REFERENCE TO THE SITE), THIS CONTRACT WILL BECOME A LEGALLY BINDING AGREEMENT BETWEEN PEARLESQUE AND YOU. IF YOU DO NOT AGREE TO OR WISH TO BE BOUND BY THIS CONTRACT, DO NOT INDICATE YOUR ACCEPTANCE BY CLICKING WHERE INDICATED AND DO NOT PURCHASE A SUBSCRIPTION OR OTHERWISE USE THE SITE.
THIS CONTRACT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN THE “RESOLUTION OF DISPUTES” SECTION (SECTION 11), WHICH YOU SHOULD READ IN ITS ENTIRETY. YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREE TO ABIDE BY ITS TERMS.
- Subscription. If You purchase a Subscription, You will receive each month a box containing several skincare products selected by Pearlesque from a region of the world (a “Pearlesque Box”). The Subscription and the products contained in each Pearlesque Box (the “Products”) are solely for Your personal, noncommercial use. You may not resell any Subscription or use any Products in connection with any trade or business. Pearlesque will use commercially reasonable efforts to ship each Pearlesque Box to You by the 15th of each month during which Your Subscription remains in effect.
- Order Form. If You purchase a Subscription using the Order Form, then this Contract and the Order Form shall be read as a single, integrated document that sets forth the agreement between Pearlesque and You, and any reference herein to this Contract shall be deemed to refer such integrated document. You represent and warrant that all information You provide on the Order Form or otherwise to Pearlesque is true, correct and complete.
Pearlesque may change the Site and the Subscription at any time and from time to time without notice, including, without limitation, by modifying is policies and practices with respect to or the description of or terms relating to Subscriptions, Pearlesque Boxes or Products.
- INTELLECTUAL PROPERTY.
- As between Pearlesque and You, Pearlesque owns all patents, copyrights, trade secret rights and other intellectual property or proprietary rights in or relating to the Site or to any materials provided as part of the Subscription (the “Pearlesque Materials”). Pearlesque grants You a nonexclusive, non-transferrable license, without right to sublicense, to access and use the Pearlesque Materials during the term of this Contract solely as and to the extent expressly permitted hereunder. Pearlesque reserves all rights not expressly granted by Pearlesque hereunder. Without limiting the generality of the foregoing, You shall not (i) use a frame or border environment around the Site or any other framing technique to enclose any portion or aspect of the Site or mirror any portion of the Site; (ii) modify, translate into any language or computer language, or create derivative works from, any Pearlesque Materials; or (iii) access, copy or use any Pearlesque Materials except as expressly authorized hereunder. You acknowledge that any violation of the foregoing may constitute an infringement or misappropriation of Pearlesque’s intellectual property or proprietary rights, in addition to a breach of this Contract.
- You grant Pearlesque a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable license, with the right to sublicense, under any and all intellectual property or other rights in or relating to any information or material that You may provide to Pearlesque relating to Pearlesque Material or Your use thereof or experience therewith, whether oral or written (collectively, “Feedback”), to (i) modify or create derivative works based upon the Feedback, (ii) use Feedback and any such modifications or derivative works in any way in connection with the design, development, marketing and other exploitation of any Pearlesque Materials or any other product or service of Pearlesque or any of its affiliates, (iii) debug, display, perform, prepare derivative works, copy, make, have made, use, disclose, sell, otherwise dispose of, support, and otherwise exploit the Pearlesque Materials and such other products and services in any way and in any media, whether currently known or unknown, and (iv) copy, display, perform, distribute, display, use, sell or otherwise exploit the Feedback and any modifications thereto or derivative works based thereon for any purpose and in any way.
- AGE RESTRICTIONS. The Site, the Subscriptions and the Products are intended for use solely by persons who are age eighteen (18) or older. If You are less than that age, You are not authorized to purchase a Subscription. You represent and warrant that You are at least eighteen (18) years of age.
- You may purchase and pay for Your Subscription on a monthly basis. The monthly price for the Subscription (the “Monthly Fee”) is set forth on the Order Form and is subject to change upon prior notice provided on the Site.
- You may pay the Monthly Fee using a major credit card or any other payment method that Pearleseque accepts as specified on the Order Form or elsewhere on the Site (the “Payment Method”). You will be charged the Monthly Fee using the Payment Method when You purchase a Subscription. Thereafter, You will automatically be charged the Monthly Fee using the Payment Method on or about the 20th of each month during the term of Your Subscription; provided that, if the 20th falls on a weekend or holiday, You may be charged on the business day that precedes or follows the 20th of such month (such date with respect to each month during the term of Your Subscription, the “Automatic Payment Date”). You authorize Pearlesque to charge You the Monthly Fee using the Payment Method on each Automatic Payment Date that falls during the term of Your Subscription. You acknowledge and understand that You shall under no circumstances be entitled to any refund of any payment to Pearlesque, and You agree not to request any such refund either from Pearlesque, Your credit card issuer or any other person or entity, including, but not limited to, by contesting or requesting a charge back with respect to any credit card or other charge made pursuant to this Contract.
- If You purchase a Subscription on or before the 6th of any month, then Pearlesque will ship a Pearlesque Box to You during such month, and You will be charged the Monthly Fee on the Automatic Payment Date with respect to such month for the following month’s Pearlesque Box. If You purchase a Subscription after the 6th of any month, then Your first Pearlesque Box will be shipped in the following month, and You will then be charged on the first Automatic Payment Date following that shipment for the next month’s shipment.
- You shall pay (or, at Pearlesque’s option, reimburse Pearlesque for) any federal, state or local sales, use, value added or other tax, tariff, duty or assessment and any associated interest or penalties arising out of or related to any of the transactions contemplated under this Contract (other than taxes based on Pearlesque’s net income).
- TERMINATION. The term of Your Subscription shall commence when You purchase such Subscription. You may cancel Your Subscription at any time by following the instructions for cancellation on the “Account Settings” pages (and subpages) on the Site. If You cancel your Subscription before the Automatic Payment Date of the applicable month, you will not be charged any Monthly Fees following such cancellation, and you will receive no further Pearlesque Boxes. If You cancel Your Subscription on or after the Automatic Payment Date with respect to any month and Pearlesque charges you the Monthly Fee using the Payment Method before such cancellation takes effect, you will not receive a refund of the amount paid during such month, and Pearlesque will ship a Pearlesque Box to you during the following month. Sections 4, 7, 8, 9, 10, 11, 12 and 16 of this Contract shall survive any cancellation, termination or expiration of Your Subscription or of this Contract and shall remain fully effective and enforceable thereafter.
- USER CONTENT
- “User Content” means any comment or other content of any type or nature, including, but not limited to, text, images, video and audio, in any format, that You post to the Site or that You submit to Pearlesque for transmission or display on the Site.
- You grant Pearlesque a perpetual, irrevocable, worldwide, fully-paid-up, royalty-free license to create derivative works and modifications based upon User Content and to copy, distribute, transmit, publicly display and publicly perform User Content and such derivative works and modifications. You irrevocably waive any claim that any modifications, uses, publications or exploitations of any User Content will or may cause harm to Your honor or reputation constitute a distortion or mutilation of such User Content.
- You irrevocably consent on Your behalf and on behalf of any other person depicted or otherwise referenced or included in any User Content to any and all uses, for any purpose, by Pearlesque and by any of its vendors, customers, licensees and advertisers of any image, name or other aspect of the persona of You or such other person that is included in such User Content.
- You warrant to Pearlesque that You are authorized to grant Pearlesque the foregoing consents and that You own the copyrights to the User Content, free and clear of any claims or rights of any person, or that You are otherwise authorized under those copyrights to grant to Pearlesque all rights granted in this Contract.
- No User Content, and no use, duplication, display, performance, distribution or other exploitation of any User Content, will violate any rights of any person, including, but not limited to, any rights related to copyright, trademark privacy, publicity or defamation (collectively, “Rights”). You agree that You will be responsible to pay or, at Pearlesque’ option, to reimburse Pearlesque for any costs Pearlesque incurs to defend, and any settlement or damages that Pearlesque pays in connection with, any claim by any person that User Content violates any Rights.
- You agree not to post or submit User Content that is inconsistent with the spirit of the Site or that might offend its community of users. Forbidden User Content includes any that disparages any person or group. User Content of a racial, sexual, sexist, obscene, violent, threatening, political or controversial nature will generally be inappropriate. You further agree not to post or submit any User Content that includes any trade secret or any personal or private information of any person or that is intended or could reasonably be expected to annoy, defame, embarrass or harass any person.
- Subject to Section 13, Pearlesque does not have any responsibility or obligation to monitor the User Content or to remove or block any User Content that violates this Section 8. However, Pearlesque reserve the right to do so and to take down or block any User Content at any time and for any reason, in Pearlesque’ sole discretion.
- NO WARRANTIES. You acknowledge and agree that Your use of the Products and the Site shall be at Your sole risk. To the maximum extent allowed under applicable law, Pearlesque and its suppliers and vendors provide the Site, the Subscriptions, the Pearlesque Boxes and the Products AS IS, without any warranties whatsoever. You acknowledge that no employee or other representative of Pearlesque is authorized to make any representation or warranty on behalf of Pearlesque, and no oral or written statement, advice or information made or provided by any Pearlesque personnel shall constitute or give rise to any representation or warranty. Without limiting the generality of the foregoing, Pearlesque makes no warranties of any type or nature regarding the Products (including with respect to any negative reaction that You may have to any Product) or the Site, or regarding any third party websites to which Pearlesque may provide links or otherwise connect You, and Pearlesque specifically disclaims the implied warranties of merchantability and fitness for a particular purpose. The duration of any implied warranty that is not effectively disclaimed will be limited to the longer of (i) thirty (30) days from the date that You purchased Your Subscription, if such warranty claim relates to Your Subscription generally, or, if such warranty claim relates to any specific Product(s), then thirty (30) days from the date that such Product(s) was shipped to You; and (ii) the shortest period allowed under applicable law. Some states / jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to You.
- LIMITATION OF LIABILITY.
- To the maximum extent allowed under applicable law, neither Pearlesque nor its affiliates nor its or its affiliates’ suppliers or vendors will be liable for any special, incidental, consequential or exemplary damages arising out of or in connection with this Contract, the Site, any Subscriptions, any Pearlesque Boxes, any Products or Your use of any of the foregoing, even if Pearlesque or its affiliates or its affiliates’ suppliers or vendors have been advised of the possibility of such damages.
- To the maximum extent allowed under applicable law, in no event will Pearlesque’s or its affiliates’ or its or its affiliates’ suppliers’ or vendors’ aggregate liability for any claim(s) under this Contract or relating to the Site, any Subscriptions, any Pearlesque Box, any Products or the use of any of the foregoing, whether arising in contract, tort or any other theory of liability, exceed the amount equal to three (3) times the then-current Monthly Fee.
- If Pearlesque breaches this Contract in any way, or if Pearlesque otherwise violates any of Your rights, Pearlesque’s sole liability and Your sole and exclusive remedy therefor shall be direct damages, subject to Section 10(b). You shall not seek and hereby irrevocably waive any right to receive injunctive or other equitable relief of any type or nature against Pearlesque.
- RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS.
- You and Pearlesque shall arbitrate any and all Disputes, as follows:
- “Dispute” means any dispute arising out of or in any way related to this Contract, any amendments or addenda to this Contract, or the subject matter of this Contract, including, but not limited to, any contract, tort, statutory or equity claims that relate in any way to (1) this Contract, the Site, Your Subscription, any Pearlesque Box or any Products (collectively, the “Contract Subject Matter”), (2) the use, distribution, sale, advertising, promotion or marketing of any of the Contract Subject Matter, or (3) any claims, statements, promises, descriptions, representations or warranties made in connection with the Contract Subject Matter.
- This Section 11 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
- Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between Pearlesque and You will be subject to binding arbitration.
- Pearlesque and You agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Contract will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 ("FAA") to the maximum extent permitted by applicable law.
- All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
- The parties expressly agree that any Dispute is personal to them, and any such Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
- The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that Pearlesque and You shall mutually agree upon. If, after making a reasonable effort, Pearlesque and You are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules or the appropriate rules of any alternative arbitration forum selected by Pearlesque and You or appointed by a court, subject to the following modifications:
- The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge.
- As limited by the FAA, this Contract and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by this Contract as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.
- The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
- In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Contract (Section 10), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
- The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys' fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated in this Section 11.
- Pearlesque will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of Pearlesque to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that You are economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for You to do so, the arbitrator ultimately may decide that You are responsible for some portion of that fee in the arbitrator’s discretion.
- The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
- You and Pearlesque shall arbitrate any and all Disputes, as follows:
- LIMITATION OF TIME PERIOD TO COMMENCE ANY COMPLAINT OR ACTION. Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any claim or cause of action that constitutes a Dispute as defined in Section 11.a must be filed within one (1) year after the date on which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim in any form or forum and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its claim within such applicable limitations period.
- COPYRIGHT COMPLAINTS AND REMOVAL POLICY. Pearlesque does not tolerate the posting on or submission to the Site of any content that infringes any copyright. If you believe that any content posted on or submitted to the Site infringes your copyright, you may notify Pearlesque’s designated agent specified below. Pearlesque will respond to notices of alleged copyright infringement that comply with all requirements of law and are properly provided to Pearlesque. Without limiting the generality of the foregoing or any of Pearlesque’s rights or remedies hereunder or at law or in equity, Pearlesque will, under appropriate circumstances as determined by Pearlesque in its sole discretion, terminate the account of any user who repeatedly infringes the copyright of, or otherwise violates any rights of, any person. Pearlesque’ designated agent for notice of alleged copyright infringement is:
Attn: DMCA Copyright Agent
Pearlesque Box Inc.
Los Angeles, CA
Federal law requires that your notice of copyright infringement include the following information:
- Identification of the copyrighted work that you claim has been infringed.
- Identification of the material that you claim is infringing, with enough detail so that we may locate it.
- Information reasonably sufficient to permit Pearlesque to contact you, such as your address, telephone number and email address.
- Your physical or electronic signature.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are the sole owner of the copyright or otherwise authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- OTHER QUESTIONS OR COMPLAINTS. If You have any questions or complaints regarding this Contract or Your Subscription, You may contact Pearlesque at firstname.lastname@example.org.
Additionally, if You reside in California, You are hereby notified that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210.
- MODIFICATIONS TO THIS CONTRACT. Pearlesque may modify this Contract at any time and from time to time at its sole discretion. Pearlesque will post a reasonably prominent notice of any such modifications on the Site, and any such modification will take effect immediately upon the publication of notice thereof on the Site; provided that such modification shall not apply to You if You cancel Your Subscription within five (5) business days after such publication. Also, if You have an active Subscription at the time of such modification, Pearlesque will make commercially reasonable efforts to notify You of such modification by email.
- With the exception of the provision above that the enforceability of Section 11 is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Contract will be construed and enforced in accordance with the laws of the state of California applicable to contracts entered into and fully performed in California by residents thereof.
- This Contract, including the Order Form, together constitute the entire agreement between Pearlesque and You with respect to the subject matter hereof and thereof and supersede any and all prior or contemporaneous oral or written communications relating to the subject matter hereof and thereof. There being no expectations to the contrary between the parties hereto, no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner any express terms of this Contract. Except as otherwise provided herein, this Contract shall not be amended except by a writing executed by both parties. No waiver of any provision of this Contract or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
- If any part of this Contract is held invalid or unenforceable, the remaining parts of this Contract shall be unimpaired and remain in full force and effect. Further, if any part of this Contract is partially valid and enforceable and partially invalid or unenforceable, the valid and enforceable part shall be enforced to the maximum extent allowed under applicable law.
- Notices and other communications from Pearlesque to You may be made by electronic means, including, without limitation, by posting on the homepage of the Site or by email.
- Nothing in this Contract shall be deemed to confer upon any person or entity other than the parties hereto and their respective assigns or other successors in interest a right of action either under this Contract or in any manner whatsoever.
- You shall not do anything that circumvents or undermines the purpose or intent of any provision of this Contract.
- The parties acknowledge and agree that the provisions hereof that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Contract that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrence hereunder. Without limiting the generality of the foregoing, You agree that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Contract to fail of its essential purpose.