LAST UPDATED 12/17/2018
Welcome to the bareMinerals website, www.nicheblast.com (the “Website”).
bareMinerals 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. If you do not agree to these Terms and Conditions, please do not 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 Shipping and Return Policy, 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 the United States and Canada. This Website is not intended for anyone under the age of 13. You must be 18 years old or the age of majority in your jurisdiction 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.
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 bareMinerals, our affiliates, partners or licensors, and is protected by United States and international copyright laws. The trademarks, logos, and service marks displayed on the Website (collectively, the “Trademarks”) are the registered and unregistered marks of bareMinerals, our affiliates, partners or licensors, in the United States and other countries, and are protected by United States 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 without our prior written consent. Requests for permission should be directed to our New York office at the address specified below.
900 Third Avenue, 28th 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 bareMinerals’ best interests to do so.
bareMinerals 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 bareMinerals. We may permit some links for convenience, but it is not an endorsement by bareMinerals, our affiliates or our partners of the referenced content, product, service or supplier. Please note that the rules and privacy policies of linked sites may differ from those of bareMinerals 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 nonexclusive, 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. 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 as determined by bareMinerals; 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 bareMinerals, 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. COPYRIGHT AGENT
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Website; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. Any notification by a copyright owner or a person authorized to act on such copyright owner’s behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright infringement can be reached by writing to Legal Department, Shiseido Americas Corporation, 900 Third Avenue, New York, NY 10022, or by emailing DMCA@sac.shiseido.com.
You agree to indemnify, defend, and hold harmless, bareMinerals, 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 attorneys' 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.
14. 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 ($100.00).
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER 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.
15. 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.
WE BOTH AGREE TO ARBITRATE: You and bareMinerals 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, 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.
ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. 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 JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms and Conditions, the rules set forth in these Terms and Conditions will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or we must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com.
(2) Send three copies of Demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the Demand for Arbitration to the other party.
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 the United States 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 bareMinerals, 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: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
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 bareMinerals 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 ATTORNEY 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 any circumstances where this Arbitration Agreement permits the parties to litigate in court, these Terms and Conditions shall be governed by the laws of New York as if the Terms and Conditions were a contract wholly entered into and wholly performed within New York. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of (i) a state court of competent jurisdiction located in New York County, New York, or (ii) the United State District Court for the Southern District of New York.
THE TERMS IN THIS SECTION ARE VALID ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND ARE INAPPLICABLE TO RESIDENTS OF THE PROVINCE OF QUEBEC, 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.
17. SUBSCRIPTON & AUTO-DELIVERY
Your bareMinerals 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 (888) 795-4747 or by sending an email to firstname.lastname@example.org.
You are able to make changes to your next scheduled order, skip or cancel up to 11:59pm EST the night 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 or debit card. We regret that you cannot pay using a bareMinerals 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, bareMinerals may cancel your subscription. To update your credit card information, log into your account or contact Customer Service. Auto-Delivery discount pricing, samples, FAB points and other benefits are subject to change, at our discretion. In order to receive the Annual Holiday Shopping Pass you must be an active Auto-Delivery subscriber for at least six months and you must have had an order placed within the calendar year. The Annual Holiday Shopping Pass will be redeemable for one transaction only and is subject to the terms and conditions included in the promotion notice. No calendar extensions will be granted.
Product pricing, product offerings and product bundles are subject to change without notice. The bareMinerals Auto-Delivery and the product offerings and product bundles sold may be cancelled and/or discontinued at any time by bareMinerals without notice. These terms and conditions may be changed at any time without notice.
18. FAB FRIENDS AND BENEFITS RELATIONSHIP PROGRAM
Please read our Terms and Conditions for more information about our FAB Friends and Benefits Relationship Program.
19. BAREMINERALS TEXTS
Text JOIN to 35191 to receive texts from bareMinerals.
Supported carriers include AT&T, Sprint/Boost/Virgin, T-Mobile/MetroPCS, Verizon Wireless, C Spire Wireless, Carolina West Wireless (CWW), CellCom USA, Google Voice, U.S. Cellular, ACS/Alaska, Advantage Cellular (DTC Wireless), Aio Wireless/Cricket, Appalachian Wireless, Atlantic Tele-Network International (ATN), Bandwidth, Bluegrass Cellular, Buffalo Wireless, CableVision, Cellular Network Partnership (PIONEER), Cellular One of East Central Illinois, Chariton Valley Cellular, Chat Mobility USA, ClearTalk(Flat Wireless), Copper Valley, Coral Wireless (Mobi PCS), Cross Telephone Company (MBO Wireless), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI Communications Corp, Golden State Cellular, i Wireless (IOWA Wireless), Illinois Valley Cellular (IV Cellular), Immix(Keystone Wireless), Inland Cellular Telephone Company, Leaco, Mosaic (Consolidated or CTC Telecom), MTA Communications, MTPCS (Cellular One Nation), Nex-Tech Wireless, Northwest Missouri Cellular Limited, Panhandle Telecommunications Systems(PTCI), Peoples Wireless, Pine Belt Wireless, Pine Cellular, Revol Wireless USA, RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, SouthernLinc, SRT Wireless, Texas RSA 3 Ltd(Plateau Wireless), Thumb Cellular, Union Telephone Company(Union Wireless), United Wireless, Viaero Wireless, West Central Wireless (5 Star Wireless).
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 immediately upon 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.
LAST UPDATED 12/17/2018