Terms & Conditions - Blushington Academy for Artist Advancement
Welcome to Blushington!
Blushington Digital LLC, its affiliates, and their agents, successors and assigns (collectively, “Blushington,” “we,” “us,” “our”) provides its services (the “Services”) to you through its website located at www.blushington.com/pages/academy, and all associated domain names and all other websites and domain names affiliated with the Blushington Academy for Artist Advancement (the “Academy”), and any other linked pages, features, content, or application services offered from time to time by us in connection therewith (collectively, the “Site”).
The Services include an online platform in which you may participate in classes, presentations, workshops, and webinars offered by the Academy. You may express an interest in, and if admitted, participate in such classes, presentations, workshops, and webinars. We cannot promise the availability of any such classes, presentations, workshops, and webinars. The Academy is not a school of cosmetology and does not offer degree programs in the practice of cosmetology. Nor is the Academy a postsecondary educational institution.
These Terms apply to your use of the Site and the Services offered through it. Your use of the Site indicates your acceptance of the Terms, including the policies incorporated into them by reference. If you do not accept the Terms, you must not use the Site or the Services.
THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THIS SITE, THE USE OF OUR SERVICES, OR THESE TERMS TO BINDING ARBITRATION RATHER THAN PROCEEDING IN COURT. YOU MAY OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT ONLY BY FOLLOWING THE PROCEDURES BELOW. THESE TERMS ALSO INCLUDE A JURY WAIVER.
Blushington may make changes or improvements to the Site and these Terms at any time. By continuing to use this site after any changes are made, you are accepting and agreeing to the changes.
In addition, certain sections or Services offered by the Site may have additional terms governing the access to or use of such sections or Services.
For purposes hereof, references to the Site include the software and services of vendors (as defined below) that enable the operation of the Site and/or some of its features.
- PRIVACY AND SECURITY
- ACCESS AND USE OF THE SERVICES
Accordingly, as a condition of using the Site, you agree not to use the Site or its contents or information for any commercial or non-personal purpose (direct or indirect) or for any purpose that is illegal, unlawful or prohibited by the Terms. Except with our prior written authorization, you agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or services obtained from the Site. In addition, you agree not to:
- use the Site or its contents for any non-authorized commercial purpose;
- access, monitor or copy any content or information of the Site using any robot, spider, scraper or other automated means or any manual process for any purpose without our express prior written permission;
- violate the restrictions in any robot exclusion headers on the Site or bypass or circumvent other measures employed to prevent or limit access to the Site;
- take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
- deep-link to any portion of the Site (including, without limitation, purchase paths) for any purpose without our express prior written permission;
- re-sell, use, copy, monitor (e.g. spider, scrape), display, download or reproduce any content or information, software, products or services available on the Site for any commercial or competitive activity or purpose;
- “frame”, “mirror” or otherwise incorporate any part of the Site into any other website without our prior written authorization;
- deliver any unlawful (according to any and all applicable laws or regulations) postings to or through the Site, or any postings which advocate illegal activity;
- deliver, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, racist, discriminating, insulting, threatening, tortuous, harassing, hateful or otherwise objectionable;
- deliver or provide links to, any postings containing defamatory, slanderous, false or libelous material;
- deliver any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or publicity;
- deliver any posting that you do not have a right to make available under law or contractual or fiduciary relationships;
- impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another;
- manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you deliver;
- use the Site in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of the Site or other users’ computer equipment, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment;
- attempt to gain unauthorized access to the Site, any related website, other accounts, computer system, or networks connected to the Site, through hacking, password mining, or any other means;
- obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site, including harvesting or otherwise collecting information about others such as email addresses;
- engage in any deceptive practices intended to manipulate the organic Search Engine Results Page (SERP) or employ search engine optimization (“SEO”) techniques considered to be against common search engine guidelines. SEO practices considered unethical, or “black hat” (aka “spamdexing”) include, though are not limited to cloaking, meta data and title tags, content scraping, link schemes, Google bombs, keyword stuffing, hidden text and links, doorway and cloaked pages, link farming or schemes, blog comment spam, etc.;
- use the Services in violation of any the Terms or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and you agree that you are solely responsible for compliance with all such laws and regulations;
- do anything else which could cause damage to the Site, Blushington, and its employees and reputations, or would otherwise have a negative impact; or
- aid or abet any of the above.
2.3 Member Account, Password and Security: You may never use another’s account, and you may not provide another person with the username and password to access your account. You are fully responsible for any and all activities that occur under your password or account, and it is your responsibility to ensure that your password remains confidential and secure. You agree to (a) immediately notify Blushington of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Services. Blushington will not be liable for any loss or damage arising from your failure to comply with this Section.
2.4 Modifications to Service: Blushington reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Blushington will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. We have no obligation to retain any of your account or content you have submitted to Blushington for any period of time beyond what may be required by applicable law.
2.5 General Practices Regarding Use and Storage: You acknowledge that Blushington may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Blushington’s servers on your behalf. You agree that Blushington has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that Blushington reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Blushington reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
- CONDITIONS OF USE
3.1 User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Services. Blushington reserves the right to investigate and take appropriate legal action against anyone who, in Blushington’s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, political campaign messages, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Blushington, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Blushington or its users to any harm or liability of any type;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
3.2 Recordings and User-Submitted Content: You agree that Blushington can record any online meetings, courses, classes, presentations, lectures, and webinars it hosts on the Site without any further notice to you. By using the Services, you are giving Blushington consent to record, and store recordings, for any or all online meetings, courses, classes, presentations, lectures, and webinars that you join. You may receive a notification (visual or otherwise) when recording is enabled, but you consent to recording even if you do not receive this notification. If you do not consent to being recorded, you can choose to not participate in or leave the online meetings, courses, classes, presentations, lectures, and webinars.
By participating in any online meetings, courses, classes, presentations, lectures, or webinars that Blushington records (“Recordings”), you grant to Blushington a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to copy, display, upload, adapt, perform, publish, distribute, store, modify and otherwise use and fully exploit Recordings featuring you in connection with the Services and Blushington’s business, including for the purpose of promoting, marketing, or redistributing part or all of the Services.
In addition, you consent, and grant the right, license, and permission, to Blushington to (i) record or reproduce your image, likeness, name, biographical information, voice, and statements, and any photographs, video, images, and other works, materials, and content you provide to Blushington (“Your Materials”), in or as any video, photograph, audio, still and moving images, audio-visual works, text, and other form and media, and (ii) copy, reproduce, edit, alter, include in or with other material, synchronize, use, perform, display, broadcast, and distribute your image, likeness, name, biographical information, voice, and statements so recorded or reproduced, and Your Materials, in any form and medium, including, without limitation, online and in any print, analogy, and digital format, and (iii) to permit another person directly or indirectly to engage in any of the foregoing permitted activities; all to the extent and for any purpose deemed useful by Blushington in its sole discretion.
You agree that you have not violated the rights of any third party (including, without limitation, by disclosing or using any work, materials, or information in violation of any confidentiality obligation or another’s privacy right, copyright, trade secret, or other property right) in connection with your consent, grant, or waiver herein or providing Blushington access to your image, likeness, name, biographical information, voice, or statements, or Your Materials. You agree to indemnify, defend, and hold harmless Blushington from any such violation or allegation thereof.
You acknowledge and agree that Blushington may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Blushington, its users and the public. You understand that the technical processing and transmission of the Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.3 Fees: To the extent the Services or any portion thereof is made available for any fee, you will be required to provide Blushington information regarding your credit card or other payment instrument. You represent and warrant to Blushington that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Blushington the amount that is specified in the payment plan (as well as any applicable taxes) in accordance with the terms of such plan and these Terms. You hereby authorize Blushington to bill your payment instrument in accordance with the terms of the applicable payment plan (as well as any applicable taxes) until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Blushington know within sixty (60) days after the date that Blushington charges you. We reserve the right to change Blushington’s prices. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Blushington’s net income.
Payments are nonrefundable and there are no refunds or credits for partially used periods. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our users (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
3.4 Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
3.5 Commercial Use: Unless otherwise expressly authorized herein or by Blushington in writing, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
- INTELLECTUAL PROPERTY RIGHTS
4.1 All content of this Site including, without limitation, all trademarks, service marks, tag lines/slogans, logos, names, text, copyrightable subject matter, images, graphics, designs, software, music, sound, video, audio-visual recordings, data and products belong exclusively to Blushington or its suppliers, vendors, service providers or its licensors (collectively, such third parties, Blushington’s “vendors”), and is protected by United States and international intellectual property laws. The selection, coordination, arrangement, and enhancement of all content on this Site, as well as any content original to Blushington, is owned exclusively by Blushington and is protected by United States and international copyright laws. All rights are reserved by Blushington.
You may not use any cookies, meta tags or other metadata, or other forms of hidden text or code that include Blushington’s intellectual property without the express prior written permission of Blushington and, without limiting the foregoing, you may not use of Blushington’s trademarks, service marks, tag lines/slogans, logos or names in any manner may cause confusion among consumers, nor in any manner without the express prior written consent of Blushington. All trademarks that appear on this Site that are not owned by Blushington are the property of their respective owners. You may not use any trademarks, copyrights or other intellectual property owned by Blushington in any negative or malicious way or to advertise products or services we do not sell.
You acknowledge and agree that the Services may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Blushington, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Service Content, in whole or in part, except that the foregoing does not apply to your own content that you legally upload to the Services or Site. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Blushington from accessing the Services (including blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of Blushington, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Blushington.
- VENDOR SOFTWARE AND SYSTEMS
In addition, certain elements of the Site are operated or use software from Blushington’s vendors pursuant to contractual agreements with Blushington,. Such vendors are not affiliates and have no relationship other than through these commercial arrangements.
- COPYRIGHT COMPLAINTS/NOTICES OF COPYRIGHT INFRINGEMENT
If you believe your work or content has been copied and posted to the Site in a way that constitutes copyright infringement, please provide Blushington’s designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works at that Site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material:
(iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has 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; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to our designated agent as follows:
Email: [email protected]
It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
- THIRD PARTY MATERIAL
- COLORS, PRODUCT DESCRIPTIONS AND CONTENT
Blushington displays colors of our products on our Site as accurately as we believe practical, but the actual color you see depends on the lighting and camera equipment used, the reproduction of the images, and the accuracy of the color reproduction on your screen. Blushington attempts to be accurate in the descriptions of the products and other content on this site, however we cannot warrant that the product descriptions or content are error-free, complete or accurate.
All of the information on this Site is current only as of the date it is posted, whether or not such date is indicated.
- RESERVATION OF RIGHTS
Blushington reserves the right, at any time, without notice and in its sole discretion, to terminate your license to use the Site and to block or prevent your future access to and use of the Site. Blushington may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce the Terms, (iii) respond to claims that any Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Blushington (and its employees), its users and the public.
- MOBILE SERVICES
- SWEEPSTAKES, CONTESTS, SCHOLARSHIPS, AND PROMOTIONS
- DISCLAIMERS OF WARRANTIES
ALL CONTENT, INCLUDING SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS CONTAINED WITHIN OR AVAILABLE THROUGH THE SITE ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. BLUSHINGTON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT OR MATERIALS INCLUDED ON THIS WEBSITE AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BLUSHINGTON DISCLAIMS ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR SATISFACTORY WORKMANLIKE EFFORT, INFORMATIONAL CONTENT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. BLUSHINGTON DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SITE WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND/OR ITS SERVERS WILL BE FREE OF VIRUSES AND/OR OTHER HARMFUL COMPONENTS. BLUSHINGTON DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY MATERIAL OF ANY KIND CONTAINED WITHIN THE SITE FOR ANY PURPOSE, INCLUDING SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS CONTENT.
UNLESS BLUSHINGTON IS AT FAULT FOR INTENTIONAL OR WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, BLUSHINGTON IS NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS IN THE TRANSMISSION OR RECEIPT OF RESERVATIONS OR, ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE. LIMITATION OF OR EXEMPTION FROM THE AFOREMENTIONED LIABILITY MAY NOT BE PERMITTED PURSUANT TO THE RELEVANT APPLICABLE LAWS. IN SUCH CASE, BLUSHINGTON SHALL BEAR THE LIABILITY TO THE EXTENT SET FORTH IN THE RELEVANT LAWS.
- GENERAL LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BLUSHINGTON, INCLUDING ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUBSIDIARIES, AFFILIATES, DISTRIBUTORS, SUPPLIERS, LICENSORS, AGENTS OR OTHERS INVOLVED IN CREATING, SPONSORING, PROMOTING, OR OTHERWISE MAKING AVAILABLE THE SITE AND ITS CONTENTS (COLLECTIVELY THE “COVERED PARTIES”), BE LIABLE TO ANY PERSON OR ENTITY WHATSOEVER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, COMPENSATORY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING BUT NOT LIMITED TO (WHERE RELEVANT, CAUSED BY): (I) LOSS OF PRODUCTION, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF CONTRACT, LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION, INCONVENIENCE, STRESS, DISTRESS, LOSS OF CLAIM, BUSINESS INTERRUPTION, DATA OR OTHER INTANGIBLE LOSSES; (II) YOUR INABILITY TO USE, UNAUTHORIZED USE OF, DELAY, PERFORMANCE OR NON-PERFORMANCE OF THE SITE; (III) UNAUTHORIZED ACCESS TO OR TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS; (IV) THE PROVISION OR FAILURE TO PROVIDE ANY SERVICE, INCLUDING SERVICES RENDERED OR PRODUCTS OFFERED; (V) ERRORS OR INACCURACIES CONTAINED ON THE SITE, SOFTWARE, PRODUCTS, SERVICES, AND RELATED GRAPHICS OBTAINED THROUGH THE SITE; (VI) ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE; (VII) ANY PROPERTY DAMAGE INCLUDING DAMAGE TO YOUR COMPUTER OR COMPUTER SYSTEM CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, DURING OR ON ACCOUNT OF ACCESS TO OR USE OF THE SITE OR ANY SITE TO WHICH IT PROVIDES HYPERLINKS; OR (VIII) DAMAGES OTHERWISE ARISING OUT OF THE USE OF THE SITE, ANY USE, DELAY OR INABILITY TO USE THE SITE, OR ANY INFORMATION, PRODUCTS, OR SERVICES OBTAINED THROUGH THE SITE; OR (IX) ANY DAMAGES CAUSED BY A FORCE MAJEURE EVENT. THE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF A COVERED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
A force majeure event is any event beyond the Covered Parties’ control and can include, but is not limited to, natural disasters, weather conditions, fire, nuclear incident, electro-magnetic pulse, terrorist act, riots, war, arson attacks, insurgency, rebellion, armed hostilities of any kind, labor disputes, lockouts, strikes, shortages, government actions or restraints, pilferage, bankruptcy, machinery breakdown, network or system interruptions or breakdown, internet or communications breakdown, quarantine, epidemic, pandemic etc. No responsibility is accepted for any additional expense, omissions, delays, re-routing or acts of any governmental authority. No Covered Party shall be responsible for other wrongdoing (including any liability in tort), as to any products and/or Services available through the Site. Blushington does not guarantee continuous access without interruption to the Site.
Blushington will bear the responsibility required by relevant laws only if it is at fault for engaging in intentional or willful misconduct or it is grossly negligent in providing the relevant service. To the extent permissible pursuant to the relevant applicable laws, and without prejudice to the limitations set out in the Terms, the liability of Blushington, in the aggregate, will not exceed the lesser of (a) the cost of any Services from Blushington for which you purchased in the last month; or (b) two hundred and fifty United States dollars (or its equivalent in local currency). In case of an overcharge or mischarge caused by Blushington, you can make a claim regarding all erroneous charges notwithstanding what is set out above.
In addition, limitation of or exemption from the aforementioned liability may not be permitted pursuant to the relevant applicable laws. In such case, Blushington shall bear the liability to the extent set forth in the relevant laws. Claims should be submitted as soon as possible after occurrence of the event giving rise to the claim. Claims submitted with undue delay may be considered void pursuant to applicable statute of limitations. Only bona fide claims will be considered.
- GOVERNING LAW AND DISPUTES
15.1 Choice of Law/Forum Selection: The Terms and the provision of our Services will be governed and interpreted pursuant to the laws of the State of New York, without reference to New York conflict of law rules. With respect to any disputes or claims not subject to arbitration, as set forth in this section, you and Blushington agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York.
15.2 ARBITRATION (US Customers Only): Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through binding arbitration instead of court trials and class actions. This arbitration clause will survive termination of this Section.
This provision is intended to be given the broadest interpretation and application to encompass all disputes or claims arising out of or relating to your relationship with Blushington, including the use of the Site, the Services, and any other interactions with us. Blushington is committed to customer satisfaction. We will try to resolve any concerns or problems with our services that you may have. If we are unsuccessful, any dispute or claim arising out of or relating to this Section and your relationship with Blushington or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that either of us may take claims to small claims court if they qualify for hearing by such a court.
Notwithstanding the above, you may opt out of this binding arbitration provision within 30 days after this Section comes into effect (the “Opt Out Deadline”). This will be the earliest of (a) the date you first used our website, (b) the date you first used our services or (c) the date you started a relationship with us. You may opt out of these arbitration procedures by sending us a written notice using any of the following methods:
- Using our online customer service format this link. This option is supported if you have made a purchase through Blushington and have a confirmation number.
We must receive your opt out notice no later than 3 days after the Opt Out Deadline for it to be valid. You agree that you must pursue any claim in arbitration or small claims court if we do not receive an opt-out notice from you, or if we receive an opt-out notice from you more than 3 days after the Opt Out Deadline.
The arbitration of any dispute or claim will be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Section. The AAA Rules and information about arbitration and fees are available online at www.adr.org. To the extent of any inconsistency, this Section will supersede and govern over the AAA Rules.
You and we agree that this Section evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award any individual relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your claim and must follow and enforce this Section as a court would.
Any arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
We agree that we will pay all filing, administration and arbitrator fees other than the initial filing fee that you must pay to file the initial arbitration demand, and if your claim is for less than $1,000 we will reimburse you for the filing fee if you provide a written request for reimbursement. Otherwise, we will each bear the fees and expense of our respective attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration.
In addition to the above, you and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action, except for actions for injunctive relief as described below. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration Section will be void as to you. If you opt out of the arbitration provision as specified above, this class action waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above. The arbitrator may award injunctive relief only in favor of you, the individual party seeking relief, and only to the extent necessary to provide relief that is warranted by your individual claim, and not any remedy that affects other Blushington customers or users. However, if a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim for relief or remedy (such as declaratory or injunctive relief), then that claim or remedy (and only that claim or remedy) must be severed from the arbitration and must be brought in the state or federal courts as set forth in Section 15.1, while the remaining claims and remedies (such as individual damages or restitution) will still be resolved through binding arbitration.
To the extent permitted by applicable law, any determination of the extent to which your claims qualify as seeking public injunctive relief will be heard and decided by the arbitrator. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Blushington’s failure to assert any right or provision under the Terms shall not constitute a waiver of such right or provision.
If any part of these Terms is unlawful, void, or unenforceable, solely that part, to the minimum extent possible, will be deemed severable, and will not affect the validity or enforceability of any remaining provisions. Specific services, promotions and sections of this Site may include additional terms and requirements, and those additional terms and requirements will supplement these Terms with respect to the items to which they apply. Blushington may revise or modify this Site, these Terms, products, product information or pricing without notice.
To obtain information about or to make a claim concerning performance of a warranty obligation you must contact Blushington at [email protected]