This Terms of Use Agreement (“Agreement”) is made and entered into by and between Drunk Fairy, LLC, a limited liability company organized under the laws of the State of New Hampshire (“Drunk Fairy Polish”), and you (“You” or “Your”), the user of the Drunk Fairy Polish website and its associated products and services (collectively “Website”). This Agreement will be effective when You browse the Website and/or select the box to agree to our terms and conditions upon checkout, and Your continued use of the Website or selection of the “I Agree” button constitutes Your manifestation of assent to the terms of this Agreement. If You do not wish to be bound by the terms of this Agreement, You must not select the “I Agree” button or use the Website.
NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND DRUNK FAIRY POLISH WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
- Warranties. You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that You are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any preexisting Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.
- User Account. Drunk Fairy Polish may provide You with the ability to register a user account (“User Account”), which will provide access to the Website. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify Drunk Fairy Polish immediately. Drunk Fairy Polish reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.
- License. Conditional upon Your adherence to the terms of this Agreement, Drunk Fairy Polish grants You a limited, non-exclusive, non-transferable, worldwide, and revocable license to use the Website in its executable, and non-source code, form and for its customary and intended purposes.
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License Conditions. As a condition of the license granted to You under the terms of this Agreement, and except where otherwise expressly allowed under the terms of this Agreement, You are expressly prohibited from the following:
- Attempting to access the Website other than through a standard web browser unless You have been permitted to do so by Drunk Fairy Polish through a separate, written agreement (this restriction does not apply to search engines that comply with Drunk Fairy Polish’s robots.txt file);
- Accessing or attempting to access the Website through automated means (this restriction does not apply to search engines that comply with Drunk Fairy Polish’s robots.txt file);
- Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Website;
- Decompiling, reverse engineering, disassembling, or hacking the Website;
- Scraping, caching, or utilizing the Website through a proxy;
- Sharing Your User Account with others or providing unauthorized access to Your User Account;
- Circumventing the Website’s technology protection measures;
- Infringing upon the intellectual property or other proprietary rights of Drunk Fairy Polish;
- Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
- Exporting the Website in violation of the export controls or regulations of the laws of Your country or any other country’s laws or regulations;
- Using the Website to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;
- Using the Website to violate the rights of third parties, including, but not limited to, personal and proprietary rights;
- Removing or altering any proprietary notices contained within the Website, including, but not limited to, copyright and trademark notices; or
- Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.
- Proprietary Rights. You understand and agree that the Website, including, but not limited to, its source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of Drunk Fairy Polish. Under the terms of this Agreement, You do not acquire any ownership rights to the Website or the data contained therein. You acquire only a limited license to use the Website subject to the terms of this Agreement. All other rights are reserved by Drunk Fairy Polish.
- Data Processing and Privacy Policy. In Your use of the Website, Drunk Fairy Polish may collect personal or personally identifiable information from You. You warrant and agree that, for any personal or personally identifiable information that You transmit to Drunk Fairy Polish, You have adequate rights to transmit that personal or personally identifiable information to Drunk Fairy Polish and that doing so does not violate any law, statute, regulation, ordinance, or treaty, whether local, state, national, provincial. Drunk Fairy Polish has adopted its Privacy Notice to ensure that You understand the type of information that it collects, when it collects it, how it uses it, and Your right of access to it.
- Trademarks. You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Website by Drunk Fairy Polish, including, but not limited to, DRUNK FAIRY POLISH, are common law or registered trademarks owned by or licensed to Drunk Fairy Polish. You are expressly prohibited from using the trademarks of Drunk Fairy Polish to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Your goods or services. You are further prohibited from using the trademarks of Drunk Fairy Polish in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
- Ordering and Payment. Payment for all orders placed through the Website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between You and Drunk Fairy Polish until Drunk Fairy Polish accepts Your invitation to deal by performance, specifically, by shipping the ordered goods. Pricing errors will not constitute a contract between You and Drunk Fairy Polish, and Drunk Fairy Polish strives to quickly correct any pricing errors on the Website when discovered. You agree that You will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with Your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and You acknowledge and agree that Drunk Fairy Polish is not responsible for any foreign transaction fees or other fees charged to You by Your financial institution or by Drunk Fairy Polish’s payment processor. You agree that You will not initiate any chargebacks to Drunk Fairy Polish unless otherwise authorized by Drunk Fairy Polish in writing. You understand and agree that You will be responsible and required to pay for any costs associated with any chargebacks that You have initiated against Drunk Fairy Polish.
- Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Website or purchase of products through the Website. Drunk Fairy Polish will report as income all payments received from You to Drunk Fairy Polish to all proper taxing authorities.
- Shipping and Returns. Drunk Fairy Polish provides shipping via UPS Ground Advantage. For orders over seventy US Dollars ($70), Drunk Fairy Polish provides free shipping. For all orders under seventy US Dollars ($70), Drunk Fairy Polish charges a flat rate of Six Dollars and Fifty Cents ($6.50) for shipping. Drunk Fairy Polish reserves the right to change its shipping practices and policies at any time and within it sole and absolute discretion. All prices are FOB from New Hampshire. Drunk Fairy Polish does not ship outside of the United States at this time. Drunk Fairy Polish does not accept returns and all sales are final, however, Drunk Fairy Polish may replace any products shipped to You if the product is damaged or defective. If You receive a damaged or defective product, You must contact Drunk Fairy Polish within forty-eight (48) hours of receipt to request a return or replacement. No returns or replacements will be allowed after forty-eight (48) hours after receipt.
- Third Party Websites. You acknowledge and agree that the Website may contain links to third party websites or content that Drunk Fairy Polish does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and You agree that Drunk Fairy Polish will not be responsible for websites not under the ownership or control of Drunk Fairy Polish.
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Proposition 65 Notice.
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California Proposition 65 Warning to California Residents. Drunk Fairy Polish provides this Proposition 65 warning to comply with California’s Proposition 65 labeling law. Proposition 65 requires Drunk Fairy Polish to provide California consumers with notice when products that it sells exceed the “no significant risk” level or where Drunk Fairy Polish has knowledge that a listed chemical is contained within its products. Due to the number of products that Drunk Fairy Polish sells, and in an abundance of caution, Drunk Fairy Polish has chosen to provide this Proposition 65 warning. Products sold through the Website may be below the “no significant risk” level or may not contain a chemical listed by the State of California at all. However, Drunk Fairy Polish has still chosen to notify consumers to ensure its compliance with California law. Therefore, Drunk Fairy Polish provides the following notice:
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WARNING: Products sold through the Website may contain chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm. You are instructed to wash your hands after handling any products purchased through the Website and to keep all products away from children. For more information on Proposition 65, please visit: https://www.p65warnings.ca.gov/.
- Term and Termination. The term of this Agreement will begin upon Your first accessing of the Website and will continue until the earlier of the following: (i) Drunk Fairy Polish terminates Your access to the Website; or (ii) You cease using the Website and terminate Your User Account. Drunk Fairy Polish reserves the right to terminate the Website or Your access to the Website in its sole and absolute discretion and without prior notice.
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Disclaimer of Warranties and Limitation of Liability.
- YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT DRUNK FAIRY POLISH WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT DRUNK FAIRY POLISH’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.
- DRUNK FAIRY POLISH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF ITEMS PURCHASED THROUGH THE WEBSITE. ITEMS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES FROM DRUNK FAIRY POLISH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
- DRUNK FAIRY POLISH WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, PERSONAL INJURY, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE ITEMS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, DEATH, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF ITEMS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT DRUNK FAIRY POLISH’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO DRUNK FAIRY POLISH OR $1,000, WHICHEVER IS LESS.
- Indemnification. You agree to indemnify, defend, and hold harmless Drunk Fairy Polish, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) Your use or misuse of the Website, (ii) Your use misuse of products purchased from the Website; (iii) Your violation of any term or condition of this Agreement; (iv) Your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (v) violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Drunk Fairy Polish will not provide You with the ability to control Drunk Fairy Polish's defense, and Drunk Fairy Polish reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
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Arbitration and Choice of Laws. You agree that any dispute, claim, or controversy arising out of or in relation to his Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between You and Drunk Fairy Polish, the Parties agree that the arbitrator will decide that issue. Notwithstanding the foregoing, You and Drunk Fairy Polish each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under New Hampshire law and will be heard exclusively in the state and federal courts located in or with jurisdiction over Claremont, New Hampshire. You and Drunk Fairy Polish agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Association’s most recent Commercial Arbitration Rules then in effect except whereas modified herein. The arbitration will be conducted in Claremont, New Hampshire and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction and shall be enforceable consistent with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the 1958 New York Convention. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. Both parties hereby submit to exclusive personal jurisdiction in New Hampshire. The arbitrator will apply the laws of the State of New Hampshire and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND DRUNK FAIRY POLISH EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
- Force Majeure. Drunk Fairy Polish will not be responsible for any delay or failure in performance of the Website arising out of any cause beyond Drunk Fairy Polish’s control, such as acts of God, war, riots, fire, pandemic, terrorist attacks, power outages, severe weather, or other accidents.
- Survivability. The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement, Your User Account, or the Website, including, but not limited to, Your duty to indemnify and defend Drunk Fairy Polish.
- Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
- Assignment. You are expressly prohibited from assigning Your rights and duties under this Agreement. Drunk Fairy Polish reserves the right to assign its rights and duties under this Agreement, including in a sale of Drunk Fairy Polish, its assets, or the Website.
- Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.
