PLEASE READ THESE TERMS AND CONDITIONS OF SALE VERY CAREFULLY.
YOU (“Purchaser”) agree to be bound by the following Terms and Conditions of Sale (“Terms and Conditions”) in connection with the purchase of Product from MAKEUP AND BEAUTY NEWS (“Seller”):
1. WEBSITE INFORMATION: The information displayed on the fysikolashes.com website (the “website”) is provided in good faith, but Seller makes no guarantees about the completeness, accuracy, timeliness, availability, accessibility, merchantability, or fitness for any particular purpose of any of the information or products described on the website. The accuracy and reliability of the content within the website and its associated links is not guaranteed and is provided “as is” and all warranties, either express or implied, are disclaimed. Seller accepts no responsibility for your use of this information, or for anyone else’s use of it. Seller accepts no responsibility for any injury, loss, claim, or damage arising out of or in any way connected with this service or the information displayed here. By accessing this service, you agree with these conditions and agree to hold harmless Seller and its DISTRIBUTORS.
2. PRIVACY: Seller’s performance of these Terms and Conditions is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of Seller’s right to comply with law enforcement requests or requirements relating to the disclosure of any information to law enforcement officials. Seller agrees to adhere to all applicable United States federal and state laws and industry practices relating to the collection and use of personal information from Purchaser.
3. ACCEPTANCE: Purchaser has read and understands these Terms and Conditions and agrees that Seller’s and Purchaser’s signature shall constitute their acceptance of the Terms and Conditions set forth herein. Any terms and conditions, and/or provisions of Purchaser’s purchase order or other written form which is, in any way, inconsistent with or in addition to these Terms and Conditions shall not be applicable herein or binding upon Seller, and in no event shall any such inconsistent term and/or condition of Purchaser’s order, whether by acknowledgment or otherwise, become a part of these Terms and Conditions.
4. VALIDITY OF QUOTATION: Seller makes no firm offers of price quotes. Prices listed on Seller’s website are not firm offers. Prices displayed on Seller’s website are subject to availability and current price conditions. Prices displayed on the website are subject to change without notice.
5. TAXES EXCLUDED: The price of Product does not include taxes or assessments of any government or subdivision thereof, including without limitation, any local, state or federal, sales, revenue, excise, use or other tax or fee applicable to the purchase, sale, resale or use of Product. Purchaser agrees to pay any and all such taxes and assessments, and to reimburse Seller for any and all such taxes or assessments, that Seller is required to pay.
6. PAYMENTS: All payments shall be made in U.S. Dollars. Unless otherwise specified in writing, Seller’s standard payment terms are all cash, payment in full upon acceptance of Order and Prior to Shipment by Seller. If Product is not paid for in full, Seller retains a security interest in Product and shall have all rights of a secured party thereon pursuant to the provisions of the applicable Uniform Commercial Code. Purchaser shall, upon request of Seller, execute a Security Agreement, Financing Statement or other document as required by Applicable Uniform Commercial Code, and Seller shall have the right to require receipt of such executed a Security Agreement, Financing Statement or other document as required by Applicable Uniform Commercial Code, prior to shipment of Product. In furtherance of the foregoing, an irrevocable power, coupled with an interest, is hereby granted and reserved unto Seller to execute such Security Agreement, Financing Statement or other document on Purchaser’s behalf and stead.
OVERNIGHT SHIPMENTS: Purchaser and Seller agree that all overnight orders that are placed before 12 noon EST Monday – Friday on a non- government observed holiday will ship that day. Purchaser and Seller agree that all overnight orders that are placed after 12 noon EST Monday – Friday on a non-government observed holiday will ship the following business day. Purchaser and Seller agree that overnight orders placed after 12 noon EST on Friday will ship on the following Monday. Overnight fees do not include Saturday Delivery. Orders for products placed for Friday overnight will not arrive until Monday morning. Purchaser and Seller agree that overnight orders placed after 12 noon EST on a government observed holiday will not ship until the following business day. Purchaser and Seller agree that overnight shipping to PO boxes is not available. All overnight shipments must be to a physical address. Purchaser and Seller agree that overnight shipping is not available to any international address, APO/FPO, and some areas in the United States. If you plan to pay to overnight within the US and it is not available, a refund of the additional shipping cost will be issued.
UNDELIVERABLE PACKAGES: Packages that are returned to Seller as undeliverable are issued a full refund. Seller is unable to re-ship orders that are returned to Seller as undeliverable. If Purchaser would like to purchase items that were undeliverable, Purchaser may place a new order with Seller. Seller cannot ship to any PO Box address.
CANCELLATIONS: Purchaser may cancel an order only (i) within 24 hours of placing the order or (ii) before the order ships. If Purchaser cancels an order within 24 hours of placing the order and the order has not shipped, a refund will be issued in the form that payment was originally made. For example, if payment was made by credit card, then Seller will charge a credit back to Purchaser’s credit card. Seller agrees to process refunds within seven days of cancellation by Purchaser if the order did not ship. If Purchaser requests cancellation after the order ships it is up to Purchaser to refuse the package. Once the refused package is received by Seller’s refund department, a full refund will be processed, less shipping and handling, within 7 days of receipt of the refused package. Seller reserves the right to cancel any order at any time for any reason.
LIMITATIONS: If Purchaser requires shipping to an international location, then Purchaser agrees to be responsible for all additional fees, including but not limited to customs fees. Also, Purchaser agrees to pay an additional $22.00 USD for all international shipping. International orders can take up to 30 days for reciept due to customs policies. International orders cannot ship overnight.
7. PROMOTIONS: No price adjustments will be made for coupons or promotional codes not entered at the time of purchase.
8. SHIPPING AND HANDLING FEES: Purchaser and Seller agree that no shipping and handling fees will ever be refunded by Seller to Purchaser and Seller is not responsible for any shipping and handling fees incurred by Purchaser.
9. DAMAGE OR SHORTAGE: A claim relating to the shipment or packaging of Product must be made within fifteen (15) days of receipt of Product by Purchaser at Shipper’s destination point, or the claim relating to shipment or packaging is waived and released by Purchaser.
10. SET-OFF: Purchaser shall not, at any time, be entitled to set off any amount whatsoever owing at any time from Seller to Purchaser against any amount payable by Purchaser to Seller.
11. MARKETING: Purchaser is not authorized to resell any Product purchased under these Terms and Conditions. If Purchaser wishes to resell any Product, Purchaser must obtain the express written authorization of Seller before Purchaser may resell Product. The resell of any Product by Purchaser without Seller’s prior express written authorization is a material breach of these Terms and Conditions.
12. SHIPMENT AND DELIVERY: Delivery shall be arranged by Seller and shall be at the sole cost and expense of Purchaser. Shipping dates and/or delivery dates are quoted based on conditions prevailing on the date of the quotations. The time of delivery shall be deemed to have been complied with when the Product has been shipped or delivered into the custody of the common carrier before expiration of the time of delivery. Seller need not ship or deliver as quoted if Purchaser has not met its payment or other contractual obligations.
13. FORCE MAJEURE: Purchaser agrees that Seller is excused from performance and shall not be liable for delays due to causes beyond its reasonable control or due to acts of Purchaser, acts of God, changes in local, state or federal laws or regulations, fires, strikes, floods, epidemics, quarantine restrictions, riot or other civil unrest, war, acts of violence, freight embargoes, delays in transportation, etc., or its inability to obtain labor, materials or manufacturing facilities despite reasonable commercial efforts (collectively, “Force Majeure Events”).
14. PASSAGE OF TITLE: Title passes upon delivery to common carrier or payment in full to Seller, whichever occurs last. The title and right of possession to Product remains with Seller until the full contract price (including, if any, deferred payments, payment on notes or renewals thereof and any interest charges) has been paid to Seller. Purchaser agrees to perform all acts necessary to protect and maintain this title and right. Passage or non-passage of title shall not affect risk of loss.
15. RISK OF LOSS: Risk of loss or damage to Product is that of Purchaser from the time that Product is delivered to a common carrier, during all transportation and subsequent delivery to Purchaser, regardless of whether title has passed to Purchaser.
16. LIMITED WARRANTY OF QUALITY: THE SELLER WARRANTS THAT THE PRODUCT WHICH IT SELLS TO THE PURCHASER SHALL BE UNADULTERATED AND FREE FROM CONTAMINATION ON DATE OF SALE BY SELLER FOR A PERIOD OF 60 DAYS FROM THE ORIGINAL DATE OF PURCHASE AND THIS WARRANTY EXTENDS TO THE ORIGINAL PURCHASER ONLY. IN THE EVENT THAT ANY PRODUCT SHALL FAIL TO BE UNADULTERATED AND FREE FROM CONTAMINATION DURING THE WARRANTY PERIOD, THE SELLER SHALL REPLACE THE SAME WITHOUT COST TO THE ORIGINAL PURCHASER OR, AT SELLER’S OPTION, REFUND THE PURCHASE PRICE. Upon discovery of any defect or nonconformity, Purchaser should return the Product (in the original packing materials, if available), together with a copy of the original purchase receipt and a description of the problem to: MAKEUP AND BEAUTY NEWS, 1192 EAST DRAPER PARKWAY #151,DRAPER, UT 84020. If Purchaser sends Product by U.S. mail, Seller recommends that Purchaser send the product return receipt requested. Seller accepts no liability for products lost or misplaced in shipment.
17. LIMITED WARRANTY OF SATISFACTION: If purchaser is not completely satisfied with Product, then purchaser may return the remainder for a full refund less shipping and handling, provided that: (i) Purchaser returns Product within 30 days of purchase date. (ii) Product was purchased directly through MAKEUP AND BEAUTY NEWS. (iii) Purchaser returns remainder of Product with all its original packaging. iv) Product is returned with a valid RMA# that is displayed clearly on the outside of the package. (v) Purchaser has not received a refund for Product previously. vi) 30 Day Limited Warranty does not apply to purchases of Product made through any authorized MAKEUP AND BEAUTY NEWS retailers. Authorized retailers are responsible for setting their own return/refund/credit terms. The Company will not be responsible for refunding, replacing, or crediting these customers directly in any such cases. Seller will process all valid refund requests in no more than thirty(30) days. If a return is lost in the mail, Seller will honor the refund request only if Purchaser can provide valid proof of return. Valid proof of return is a delivery confirmation or a signature required. Only a single product refund will be allowed for any given name, address, or credit card number. A return is valid only if it is sent to the same address as what is listed above in the section titled “Limited Warranty of Quality.”
18. EXCLUSION OF WARRANTIES: ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE SHALL BE IN EFFECT FOR A PERIOD OF 60 DAYS FROM THE ORIGINAL DATE OF PURCHASE. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. THE REFUND OF PURCHASE PRICE (LESS SHIPPING AND HANDLING) OR REPLACEMENT, AT THE OPTION OF PURCHASER, IS THE ONLY REMEDY AVAILABLE TO ANY PERSON OR ENTITY FOR BREACH OF LIMITED WARRANTY BY SELLER. Purchaser acknowledges and agrees that Seller does not warrant against (i) damage to property resulting from the failure of Product to provide a desired or presumed result, or from any other cause; (ii) damage caused by use of Product for purposes other than lash conditioning; (iii) damage caused by abuse, accident, modifications or use with other products; (iv) damage during shipment; or (v) any other abuse or misuse by Purchaser or others. This warranty gives you specific legal rights, and you may also have other rights which vary from State to State.
19. LIMITATION OF ALL REMEDIES: In no event will Seller be liable for any special, incidental or consequential damages (OTHER THAN FOR INJURY TO PERSON) based on breach of warranty, breach of contract, negligence, strict tort or any other legal theory. Damages that Seller will not be responsible for include, but are not limited to: loss of profits; loss of savings or revenue; loss of use of the Product or any associated equipment; cost of capital; cost of any substitute equipment, facilities or services; downtime; the claims of third parties; injury to property; interruption of business; damages due to delays; costs resulting from the incorporation of the defective Product into other products; defect investigations; lost revenue; business goodwill; extra work; and punitive damages, even if Seller has been advised of the possibility of such damages. Purchaser expressly agrees that Seller’s sole maximum liability for damages for any cause whatsoever shall be limited to the purchase price of Product and when Purchaser accepts Product under these Terms and Conditions, Purchaser is precluded from seeking any other damages against Seller. Purchaser assumes all risk and liability for loss, damage, injury to property of Purchaser or Purchaser’s customers or third parties arising out of the use of Product sold under these Terms and Conditions. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
20. ALLOCATION OF RISKS: These Terms and Conditions allocate the risks of Product’s failure or deficiency between Seller and Purchaser. This allocation is recognized by both parties and is reflected in the price of the Product. Purchaser acknowledges to having read these Terms and Conditions and understands them and is bound by their terms.
21. INDEMNIFICATION: Purchaser agrees to indemnify, defend and hold harmless Seller, and its officers, directors, shareholders, employees, agents and representatives (collectively, “Indemnitee”), from any and all actions, claims, demands, loss, costs, expenses, obligations, liabilities, damages, including incidental and consequential damages, recoveries, settlements and deficiencies, including interest, penalties, attorney fees, accounting fees and expert witness fees incurred by Indemnitee, known or unknown, contingent or otherwise, directly or indirectly related to or arising out of or in connection with any of the following: (i) Purchaser’s breach of any of the Terms and Conditions contained herein, (ii) Purchaser’s violation of any law or the rights of a third party, (iii) personal injury of any person relating to or arising out of the use of the Product, or (iv) any claim, loss or damage otherwise arising from or related to these Terms and Conditions or the use of the Product.
22. INTEREST: If Purchaser does not make payments when due, Purchaser shall without formal notice be liable to pay interest on overdue amounts from the due date, at a rate of one and one-half percent (1.5%) per month, or the maximum amount allowed by law, whichever is more.
23. RETURN OR CANCELLATION: Accepted orders for Product cannot be cancelled by Purchaser. Product cannot be returned by Purchaser to Seller unless the Product is defective or damaged or subject to the Limited Warranty of Satisfaction. In the event that more than one product is purchased only one of each product may be returned within 90 days of purchase for a refund. When more than one product is purchased as part of a sale offer the returned product will be refunded at the lower price. For example if 2 products are purchased as part of a buy one and get the 2nd one for 50% off the returned product will be refunded at the 50% price.
24. NO REPRESENTATIONS: No claims or warranties shall be made to any third party with respect to Product by any person or entity which purchases Product for resale.
25. ENTIRE TERMS AND CONDITIONS: These Terms and Conditions and the Sales Order or other quotations and order confirmations of Seller under which they have been declared applicable supersede all prior and contemporaneous communications, understandings and Terms and Conditions of Purchaser and Seller.
26. MODIFICATION: These Terms and Conditions may not be modified or amended in any way unless such modification or amendment is in writing and signed by an authorized officer of each Seller and Purchaser.
27. SEVERABILITY: If any provision of these Terms and Conditions is determined by a court of competent jurisdiction to be invalid under any applicable law, the portion deemed to be invalid will be deemed omitted, and the remainder of these terms and conditions shall remain enforceable.
28. GOVERNING LAW: These Terms and Conditions and their performance shall be governed by and construed in accordance with the laws of the State of Utah, without regard to conflict of laws provisions.
29. JURISDICTION AND VENUE: Purchaser and Seller agree to submit to the exclusive jurisdiction over all disputes, questions and controversies arising out of Purchaser’s use of the Product and these Terms and Conditions hereunder and venue in an appropriate state or federal court located in the state of Utah. To the extent allowed by applicable law, any claim or cause of action arising from or relating to your access or use of this site must be brought within two (2) years from the date on which such claim or action arose or accrued. Any dispute resolution proceeding, whether administrative or judicial, shall take place in Salt Lake County, Utah.
30. DISPUTE RESOLUTION: If any dispute arises between the parties with respect to the interpretation or enforcement of these Terms and Conditions, Purchaser and Seller agree to attempt to resolve such dispute or disagreement by negotiating in good faith and if they are unable to resolve the dispute within thirty (30) days from commencing negotiations, they shall submit it to binding arbitration under the rules and regulations of American Arbitration Association. The arbitration will be final and binding and the arbitrator’s order will be enforceable in any court of competent jurisdiction; provided, however, that if the arbitrator fails to follow the law, the aggrieved party may seek judicial relief.
31. ATTORNEY FEES. In the event of litigation or arbitration between the parties arising out of these Terms and Conditions, the prevailing party will be entitled to recover court or arbitration costs and reasonable fees of attorneys, accountants and expert witnesses incurred in connection with the action or arbitration.
32. RESPONSIBILITY AND AGE: Purchaser represents to being of sufficient legal age to use Product and to create binding legal obligations for any liability Purchaser may incur as a result of purchase and use of the Product.
33. NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party of any provision of these Terms and Conditions shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of these Terms and Conditions constitute a waiver of any succeeding breach of the same or any other provision.
34. INVOICES: Seller may submit invoices to Purchaser by electronic communication, including, but not limited to, use of the internet, email and facsimile.
35. RELATIONSHIP OF PARTIES: Seller and Purchaser are independent contracting parties and nothing in these Terms and Conditions shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
36. FURTHER ASSURANCES: The parties agree to execute any further Terms and Conditions, and provide any requested assurance reasonably necessary for the parties to effectuate the purpose of these Terms and Conditions.
37. COSMETIC: Purchaser acknowledges that Product is marketed as a cosmetic under the Federal Food, Drug, and Cosmetic Act , 21 U.S.C. 301 et seq., and comparable State laws. Product is intended only to promote the attractiveness, enhance the beauty, and improve the appearances of eyelashes and eyebrows. All claims for the Product shall be limited to these intended uses.
38. WARNINGS: Purchaser agrees to read and follow all directions, warnings, and precautions for Product. Purchaser must consult Purchaser’s own physician or health care provider about Purchaser’s own medical and health questions.
39. HEADINGS: The headings used in these Terms and Conditions are included for convenience only and will not limit or otherwise affect the terms and conditions herein.
40. ASSIGNMENT: You may not assign, convey, subcontract or delegate your rights, duties or obligations hereunder.
41. TIME: Time is of the essence.