Terms And Conditions Of Use
These are the Terms and Conditions of Use (“Terms”) governing the use of this “Site” (nixulinusa.com) and the agreement that operates between You, the user (“You”), and Skin Sherpa North America, LLC (“Skin Sherpa,” “We,” or “Us’). These Terms describe the rights and obligations of all users regarding the use of the Site. Skin Sherpa may immediately terminate these Terms or any Site with respect to You, or generally cease offering or deny access to the Site or any portion thereof, at any time for any reason, except where prohibited. Your access to and use of the Site is conditioned on Your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who access or use the Site.
1. WHO MAY USE THE SITE
Except as otherwise set forth herein, You may only use the Site if You can form a legally binding contract. You must use the Site in compliance with these Terms and all applicable laws. If You submit information to Us through this Site, You must provide Us with accurate and complete information, and You agree to update Your information to keep it accurate and complete. Submission of information through this website by anyone under the age of 18 is strictly prohibited.
2. INFORMATION DISCLAIMER
The content of this Site is for informational purposes only. The content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of Your physician or other qualified health provider with any question You may have regarding a medical condition. If You think You may have a medical emergency, call Your doctor or 911 immediately. Skin Sherpa does not recommend or endorse any specific tests, physician, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by Skin Sherpa, Skin Sherpa employees, other contributors appearing on the Site at the invitation of Skin Sherpa, or other visitors to the Site is solely at Your own risk.
3. USER ACCOUNTS
Account Registration. To use certain areas of the Site, You may need to create an account (“Account”). You agree to provide Us with accurate, complete and updated information for Your Account. You can access, edit and update Your Account by logging into Your Account on the Site. You are responsible for maintaining the confidentiality of Your Account and password and for restricting access to Your account, and You agree to accept responsibility for all activities that occur under Your account or password. We are not liable for any acts or omissions by You in connection with Your Account. You must notify the Skin Sherpa immediately of any unauthorized use of Your credentials or any other breach of security. Even if You notify us, You will be responsible for any activities that occur using Your access credentials, including any charges resulting from the use of Your account.
Purchases. Skin Sherpa may allow You to purchase products or services offered on the Site. To purchase any products or services through the Site, You must: (a) be at least eighteen years of age, (b) provide Us with valid payment information associated with a credit card or other payment method You are authorized to use, and (c) authorize Us to charge Your credit card or other payment method for the price of the products or services You request, together with any taxes, fees, or shipping charges described on the Site. In offering product descriptions on the Site, We attempt to be accurate, but We do not warrant any product description is accurate, complete, or error-free, nor do We represent any product will diagnose, treat, cure, or prevent any disease.
Payment. You represent and warrant if You are making online payments that (i) any credit card, debit card and bank account information You supply is true, correct and complete, (ii) charges incurred by You will be honored by Your credit/debit card company or bank, (iii) You will pay the charges incurred by You in the amounts posted, including any applicable taxes, and (iv) You are the person in whose name the card was issued and You are authorized to make a purchase or other transaction with the relevant credit card or debit card and credit card or debit card information.
Rights We Grant You. We reserve the right, with or without notice, to limit the Site that You may access, and to cancel or reduce the quantity of any products to be provided to You We believe, in our sole discretion, may result in the violation of these Terms.
User Submissions. By providing User Submissions through the Site, You represent, warrant and covenant You own those User Submissions or otherwise have the right to grant to Us the rights described in this section. You further represent, warrant and covenant the User Submissions:
- Will be accurate and will comply with these Terms;
- Will be respectful of others’ opinions so We can continue to offer interactive features for everyone to enjoy;
- Will not cause injury to any person or entity, including as used by Us in accordance with these Terms;
- Will not include medical or other professional advice;
- Will not be false, fraudulent, libelous, defamatory, sexually explicit, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable;
- Will not constitute or encourage violence or a criminal offense, violate the rights of any party, including intellectual property rights, or otherwise give rise to liability or violate any law;
- Will not impersonate any other person, user, or company, or may be false, fraudulent, deceptive, inaccurate, or misleading, or misrepresents Your identity or affiliation with a person or company;
- Will not include other people’s personal information, such as another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual;
- Will not contain software viruses, spyware, or any other technologies or malicious code that could impact the operation of the Site or any computer or device used to access the Internet or political campaigning, chain letters, mass mailings, or any form of “spam” and
- Will not contain advertise or promote a product or service or include advertising or other commercial material, except with our prior written consent; and
- Will not violate applicable local, state, federal, and international laws or regulations.
- We may refuse or remove a User Submission without notice for any reason, including our belief a User Submission may violate these Terms or be otherwise objectionable. However, We will have no obligation to review, monitor, display, post, store, maintain, accept or otherwise make use of, User Submissions, and You agree neither Skin Sherpa nor its employees or agents will be liable for User Submissions or any loss or damage to You and any other person or entity resulting from User Submissions.
Permitted Use of Site. You are responsible for the accuracy of any information, including emails You provide through the Site to Skin Sherpa. If an email sent by You includes possible adverse events or side effects with a medical device, Skin Sherpa may be required to contact You for further information. By submitting content, You agree You: (i) represent and warrant You have obtained all necessary licenses, waivers, authorizations, permissions to transfer such content; (ii) grant Us a license to use, reproduce, modify, transmit, or publicly display the content subject to the terms (if any) displayed on the section of the Site at which the content was submitted or otherwise provided to You in connection with the submission of such content; and (iii) grant Us a license to use the personal or business name submitted in connection with that content. Except as expressly set forth in this Site, the content You provide to Skin Sherpa through this Site is provided by You at no cost and is not confidential. Skin Sherpa is free to reproduce, use, disclose, and transfer the information to others for any reason without Your permission or payment to You. Skin Sherpa may use any ideas, concepts, know-how or other techniques contained in the information provided by You for any purpose. By providing Us with such content, You give Us a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner any and all content. Skin Sherpa does not waive any rights it may have to similar or related ideas previously known to it or developed by its employees and representatives or obtained from sources other than You.
You are prohibited from using the Site to transmit or share content that:
- Contains illegal content or promotes illegal activities with the intent to commit such activities.
- Contains credible threats or organizes acts of real-world violence.
- Contains anything obscene, defamatory, harassing, offensive or malicious.
- Stalks, harasses or harms another individual.
- Promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
- Violates intellectual property, privacy, or other rights of third parties.
- Spams others. Do not share irrelevant or inappropriate advertising, promotional, or solicitation content.
You may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, adapt, create derivative works from, transfer, sell or otherwise exploit the Site or any content, information, software, products or services obtained from the Site, for any commercial purpose or enterprise, without our prior written permission.
4. OWNERSHIP AND CONTENT
Ownership of the Site. Skin Sherpa owns or licenses all content contained within the Site, including without limitation, text, images, icons, data, software, trademarks, trade dress. You may access and use this content solely for Your own personal, non-commercial shopping and information purposes. This content may be protected by domestic and international copyright, patent, trademark, and other rights, and all rights, titles, and interests are reserved by the respective owners. Copying, publishing, broadcasting, modifying, distributing or transmitting any Skin Sherpa content in any way without our prior written consent is strictly prohibited.
Your use of the Site is at Your sole risk. The Site is provided on an “AS IS” and “AS AVAILABLE” basis. We reserve the right to restrict or terminate Your access to the Site or any feature or part thereof at any time. We expressly disclaim all warranties of any kind, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose and any warranties materials on the Site are non-infringing, as well as warranties implied from a course of performance or course of dealing; that access to the Site will be uninterrupted or error-free; that the Site will be secure; that the Site or the servers that make the Site available will be virus-free or otherwise free of harmful components; or that information on the Site will be complete, accurate or timely. If You download any materials from the Site, You do so at Your own discretion and risk. You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such materials. No advice or information, whether oral or written, obtained by You from Skin Sherpa or through or from the Site will create any warranty of any kind. Skin Sherpa does not make any warranties or representations regarding the use of the materials on the Site in terms of their completeness, correctness, accuracy, adequacy, usefulness, timeliness, reliability, or otherwise.
Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer. In such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
6. LIMITATIONS OF LIABILITY
Limitations of Liability. In addition to any excuse provided by applicable law, Skin Sherpa shall be excused from liability for non-delivery or delay in delivery of products and services available through the Site arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
SKIN SHERPA SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE Site, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SKIN SHERPA, EVEN IF SKIN SHERPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SKIN SHERPA SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SITE OR YOUR INABILITY TO ACCESS OR USE THE SITE; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, EVEN IF SKIN SHERPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SKIN SHERPA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SKIN SHERPA’S REASONABLE CONTROL.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE OR LINKED WEBSITES IS TO STOP USING THE SITE OR THOSE SERVICES OR PRODUCTS.
You agree to indemnify, defend and hold harmless Skin Sherpa and its officers, directors, employees, contractors, agents, licensors, service providers, subcontractors, and suppliers from and against any and all losses, liabilities, expenses, damages and costs, including reasonable attorney’s fees and court costs, arising from or in connection with Your use of the Site or our products or services or any violation or alleged violation by You of these Terms or applicable law. We reserve the right, at our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Us in the defense of such matter. You may not settle any claim covered by this Section or admit any liability on the part of Skin Sherpa without Skin Sherpa’s prior written approval.
8. ARBITRATION AND CLASS ACTION WAIVER
Any dispute, claim, or controversy relating in any way to these Terms (including interpretation or application of this section and questions of arbitrability), to Your use of the Site, or to any products or services sold or distributed by Skin Sherpa or through the Site will be resolved by binding arbitration, rather than in court, except each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award all remedies (except for class, consolidated, or representative action remedies) to which a party is entitled under applicable law and which would otherwise be available in a court of law (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
It is agreed any dispute resolution proceedings will be conducted on an individual basis only, and not in a class, consolidated, or representative action. YOU ACKNOWLEDGE AND AGREE THAT YOU AND SKIN SHERPA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS.
Action or Representative Proceeding. Unless You and Skin Sherpa otherwise agree, the arbitration will be conducted in the county where You reside. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents You and Skin Sherpa submit to the Arbitrator, unless You request a hearing or the Arbitrator determines a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the American Arbitration Association (“AAA”) Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Process. As specified in the AAA’s rules, to begin an arbitration proceeding, You must send a written Demand for Arbitration that describes Your claim and the relief You seek to our registered agent at First Registered Agent of Texas, LLC. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules.
9. ADDITIONAL PROVISIONS
Updating These Terms. We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, Skin Sherpa will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use the Site after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the Site.
Termination. These Terms constitute an agreement between You and Skin Sherpa, which Skin Sherpa may terminate in its sole discretion, in whole or in part, at any time and for any reason. If Skin Sherpa terminates this agreement with You, You may no longer access the Site. Upon termination of this agreement and/or Your access to the Site, You will immediately destroy any copies of any content, whether in printed or software format. Otherwise, applicable portions of the Terms survive termination of these Terms, including applicable portions of the sections relating to Medical Information; User Submissions; Links to Third Party Websites; Disclaimers; Limitation of Liability; Indemnification; Dispute Resolution, Binding Arbitration, and Class Action Waiver.
Injunctive Relief. You agree a breach of these Terms will cause irreparable injury to Pendulum for which monetary damages would not be an adequate remedy and Pendulum shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
Our failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of that right or provision or any other rights or provisions included within the Terms.