terms and conditions
Last updated: October, 2024
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introduction
Please read these Terms of Service (the “Terms”) and our Privacy Notice (“Privacy Notice”) carefully because they govern your use of the website located at povbeauty.com (the “Site”), and your purchase of cosmetic goods offered for sale by POV Beauty (“POV”) on the Site. To make these Terms easier to read, the cosmetic goods offered for sale by POV are called the “Products”, and the Site and other interactive features or services, including our e-commerce platform services therein are collectively called the “Services.” These Terms govern your purchase of Products and your use of the Services, regardless of how you access them, whether by computer, mobile device, or otherwise; and whether directly through our Services, or through any third-party website that links to them, and regardless of whether you are a registered user or a guest.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND POV THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 21 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. agreement to terms
By using our website, you agree to these terms and conditions. If you do not agree with any part of these terms, please do not use our website.
2. privacy notice
Please review our Privacy Notice, which also governs your use of the Services, for information on how we collect, use and share your information.
3. Changes to these Terms orthe Services
We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Supplementary Terms
Certain Products, services, promotions, or content that we offer may be subject to additional terms and conditions or other agreements (“Supplementary Terms”) specified by us from time to time. In the event of a conflict between the Supplementary Terms and any provision in these Terms, the Supplementary Terms will prevail.
5. Who May Use the Services and Purchase Products?
While some aspects of the Services are provided to all users, for other aspects such as the ability to create an account or use social features, you must be at least 13 years of age.
Delivery of Products to addresses outside the U.S. may not be available for all items or to all addresses. We reserve the right to limit availability of, and/or to discontinue, any Product, Services, or other feature described or available on our Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities and/or cancel orders of any Product, Services, or other feature that we provide.
For certain features of the Services you’ll need an account. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account, including, without limitation, all Product purchases and any other financial transactions. It’s your sole responsibility to protect your password from unauthorized use.
6. Feedback
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Products and Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
7. terms of sale
The following terms apply to your purchase of the Products.
1. Product Descriptions. We try to make the Services and the Site thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Services may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other technology that you use. For example, we cannot guarantee that your computer monitor's display of any color will be accurate. We reserve the right to correct errors (whether by changing information on the Services or by informing you of the error and giving you an opportunity to cancel your order) or to update Product information at any time without notice. Subject to applicable law, all Products descriptions are subject to change at any time without notice, in our sole discretion. Any offer for any Product made via our Services is void where prohibited.
2. Availability and Pricing. POV reserves the right to change the prices and available Products at any time. Quantities of some Products may be limited and stock cannot always be guaranteed. We reserve the right to discontinue any Product at any time. Products offered for sale on this Site are for sale only in the United States and all prices are quoted in U.S. dollars. The prices displayed do not include shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you at check out before you place an order and you are responsible for paying such charges and taxes to POV.
3. Purchasing Products. We have the right to refuse or limit any orders or quantities, extend the delivery timeline for any reason after the order has been placed and accepted, and/or refuse to ship a Product to you for any reason. We will not be liable if a Product is unavailable or if shipment is delayed. We reserve the right to provide substantially similar products to fulfill your order.
4. Shipping and Returns. All Products purchases via our Services are also governed by our shipping, return, and exchange policies located at (“Shipping and Returns Policies”) which are incorporated into these Terms by reference. Please review all Shipping and Returns Policies before purchasing a Product from or entering into any such purchase transaction with POV. Any Products purchased through an unauthorized vendor cannot be returned or exchanged.
5. Transfer of Title and Risk of Loss/Damage. Title to and the risk of loss/damage of all Products passes from us to you at the time we deliver the Products to the common carrier for shipment. By purchasing Products on the Services for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and the common carrier of sold Products. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.
6. Damaged or Incomplete Shipment. If you receive a damaged or incomplete shipment of Products, or if you are otherwise unhappy with any Product, please email us at helpdesk@povbeauty.com. Any refunds or replacements are made solely in our discretion.
8. ordering; payment
1. Transaction Authorization. When you make a purchase via the Services for the Products (a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges that your bank or other financial service provider may levy on you). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
2. Payment. We accept the forms of payment stated on the Site and, for credit card payments, charge your credit card when your order is processed. The bank issuing your credit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the payment information you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (i) you providing complete personal, account, transaction and any other information needed, (ii) authorization of the payment by your credit or debit card company, and (iii) acceptance of your payment.
3. Cancellation. Except as expressly provided in these Terms, all orders are non- cancelable; we may grant or deny cancellation requests for individual orders in our sole and absolute discretion. We may also, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Services in breach of any applicable law or regulation, including the card network rules or regulations; (ii) if you use the Services in breach of these Terms; (iii) if your payment method is declined; (iv) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; (v) failure to cooperate in an investigation or provide additional information when requested; or (vi) any other circumstances we deem appropriate in its sole discretion
4. Taxes. Stated prices do not include any customs duties, sales, use, value-added, excise, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase.
5. Promotional Codes. POV may, from time to time in its sole discretion, offer certain promotional codes for discounts. Promotional codes are non-transferable and are not redeemable for cash, credit, or toward previous purchases. The promotional code must be redeemed at the time of checkout, unless otherwise advertised, and cannot retroactively be applied to a purchase. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by POV at any time in its sole discretion.
9. your content
1. Posting Content. Our Services may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. POV does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
2. Permissions to Your User Content. By making any User Content available through the Services you hereby grant to POV a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services, and for promoting and redistributing part or all of the Services (and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered, including all media now known or hereafter devised. Should such User Content contain the name, identity, likeness, and voice (or other biographical information) of third parties, you represent and warrant that you have obtained any appropriate consents and licenses for your use of such features and that POV and its sub-licensees are allowed to use them to the extent indicated in these Terms.
3. Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by POV on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4. Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
5. POV’s Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
10. general prohibitions and POV’s enforcement rights
You agree not to do any of the following:
1. Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
2. Use, display, mirror, extract, scrape, copy, index or frame the Services (including any content made available by us therein) or any individual element within the Services, POV’s name, any POV trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without POV’s express written consent;
3. Access, tamper with, or use non-public areas of the Services, POV’s computer systems, or the technical delivery systems of POV’s providers;
4. Attempt to probe, scan or test the vulnerability of any POV system or network or breach any security or authentication measures;
5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by POV or any of POV’s providers or any other third party (including another user) to protect the Services;
6. Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by POV or other generally available third-party web browsers;
7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
8. Use any meta tags or other hidden text or metadata utilizing a POV trademark, logo URL or product name without POV’s express written consent;
9. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
10. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
11. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
12. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
13. Impersonate or misrepresent your affiliation with any person or entity;
14. Violate any applicable law or regulation; or
15. Encourage or enable any other individual to do any of the foregoing.
POV is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. You are solely responsible for your interactions with other users of the Services and POV bears no responsibility for your interactions with other users of the Services. Further, POV is not party to any disputes between you and other users.
11. links to third party websites or resources
The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
12. ratings and reviews
You may provide reviews for our Services and the Products offered therein. The reviews are prompted from and managed by an external service named YotPo. If you decide to use the YotPo review tool, you agree to the Yotpo terms and conditions located at https://www.yotpo.com/terms-of-service/. You further represent to us and YotPo that your use of the review tool, and any submissions you make are honest, personally made by you, are for non-commercial purposes only, and do not infringe or violate any applicable third party rights, rules, laws, or regulations. We have no control over such reviews. Please note that although we do monitor reviews of our Services and Products, we do not endorse any such review, nor can we verify the accuracy or authenticity of any reviews.
13. endorsements and testimonials
You agree that your User Content will comply with: (i) the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising (found at: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements testimonials/091005revisedendorsementguides.pdf); (ii) the FTC’s Disclosures Guide (found at:https://www.ftc.gov/system/files/documents/plain-language/bus41-dot-com-disclosures-information-about-online-advertising.pdf); and (iii) the FTC’s Native Advertising Guidelines (https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses); and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law.
For example, if you have been paid or provided with free Products in exchange for discussing or promoting a Product or service through the Services, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the Services, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not POV, are solely responsible for any endorsements or testimonials you make regarding any Product or service through the Services.
14. termination
We may suspend or terminate your access to and use of the Services, including cancelling any order for Products, suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at helpdesk@povbeauty.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 4, 6, 7(b), 7(d), 8(a) (only for payments due and owing to POV prior to the termination), 8(b), 8(d), 9(b), 9(c), 9(e), 10, 12, 16, 17, 18, 19, 20, 21 and 22.
15. warranty disclaimers
THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Products or Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.
16. indemnity
You will indemnify and hold POV and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your purchase of, access to or use of the Products or Services, (b) your User Content, or (c) your violation of these Terms.
17. limitation of liability
1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER POV NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS OR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT POV OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL POV’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO POV FOR USE OF THE SERVICES AND PURCHASE OF PRODUCTS OR ONE HUNDRED DOLLARS ($100) OR THE PRICE THAT YOU HAVE PAID FOR PRODUCTS, WHICHEVER IS GREATER.
3. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POV AND YOU.
18. governing law and forum choice
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 21 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and POV are not required to arbitrate will be the state and federal courts located in New York County, New York, and you and POV each waive any objection to jurisdiction and venue in such courts.
19. dispute resolution
1. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Products and Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and POV agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and POV are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
2. Exceptions. As limited exceptions to Section 21(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
4. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
5. Injunctive and Declaratory Relief. Except as provided in Section 21(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
6. Class Action Waiver. YOU AND POVAGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
7. Severability. With the exception of any of the provisions in Section 21(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. general terms
1. Reservation of Rights. POV and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Products and Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in, packaged with or on, or accompanying the Products and Services.
2. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between POV and you regarding the Products and Services, and these Terms supersede and replace all prior oral or written understandings or agreements between POV and you regarding the Products and Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without POV’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. POV may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
3. Notices. Any notices or other communications provided by POV under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
4. Waiver of Rights. POV’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of POV. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Messaging Service terms and conditions
(hereinafter, "POV Beauty," "We," "Us," "Our") is offering a mobile messaging program (the "Program"), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Messaging Privacy Policy.
By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the "Dispute Resolution" section below. In arbitration there is less discovery and appellate review than in court. Please review carefully.
By opting in to or participating in any of our Programs, you represent and warrant that you do so because of a genuine desire to receive discounts, promotions, and other news or information from Us and not because of a desire or intent to initiate litigation or bring legal claims against any party. If you have requested to receive messages with a desire to bring legal claims against Us or any vendors acting on our behalf, then you shall immediately unsubscribe using the instructions set forth below and agree to indemnify Us and/or those vendors for any expenses, including attorneys' fees, associated with defending such claims.
This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts (including those in the "Other Terms and Policies" section below). Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program.
1. User Opt In.
- Consent to Receive Recurring Automated Messages. You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS, MMS, and RCS) messages (including cart reminders) from POV Beauty, including messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. You further consent to receiving messages that include artificial or prerecorded voices. By providing your phone number, you represent and warrant that you are providing your own phone number, and not someone else's, and that you are a legally-authorized user of this phone number. Consent to receive automated marketing messages is not a condition of any purchase. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system ("ATDS" or "autodialer"). Message and data rates may apply. Message frequency varies.
- No Time of Day Restrictions. While efforts are made to limit the delivery of messages outside of reasonable hours for most consumers, you understand and agree that We do not have the ability to target messages based on geographic location because federal law and privacy concerns prevent a consumer's real-time location data from being shared with Us or our vendors by your wireless carrier. Further, technical issues, such as network congestion or your phone being disconnected from your wireless service, can result in messages being delivered at unexpected times. Therefore, you agree that your consent to receive marketing text messages includes consent to the delivery of such messages 24-hours per day. Your consent supersedes any state or federal regulation that might otherwise restrict the delivery of such messages and you waive any such claims.
- Consent to Receipt of Electronic Information and E-Sign. Notwithstanding anything herein to the contrary, you understand that applicable law may require Us to provide certain information to you in writing in connection with any consent to receive advertising and telemarketing messages. By opting-in to Our messaging program, you authorize Us to provide this information to you electronically instead of in a separate paper document. You understand that you may withdraw this consent, update your information, or request a free paper copy of the information by emailing us at ani@povbeauty.com. You understand that to access and retain a copy of this webpage, you will need: (i) a device (such as a computer or mobile phone) with a web browser and Internet access; and (ii) available storage space on that device to download a copy of this webpage of a connected printer to print a copy of this webpage.
- Disclosure of Data to Identify Device and Prevent Fraud. Further, You authorize the use or disclosure of information about your account and your wireless device, if available, by or to your wireless carrier, POV Beauty or Our service provider(s), including Stodge Inc. dba Postscript, to help identify you or your wireless device when you opt-in to receive text messages from any Postscript customer and to endeavor to detect and prevent fraud. See our Messaging Privacy Policy for how we treat your data.
2. User Opt Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, REVOKE, OPT OUT, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. To the maximum extent permitted by law, You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, REVOKE, OPT OUT, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that POV Beauty and its service providers will not have liability for failing to honor requests that are designed to circumvent the automated opt-out processes described above. You agree that other methods of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, may not be deemed to be reasonable methods of opting out. Our Do Not Call Policy is attached to these Terms of Service as Appendix A.
3. Other Terms and Policies. You also agree to our Messaging Privacy Policy, POV Beauty Terms of Service and POV Beauty Privacy Policy.
4. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, customer support, delivery (including order confirmations, tracking information, and shipping updated via email), other transactional-related messages and sale of goods and services. Messages may include checkout reminders.
5. AI-Generated Message Content: You are advised that from time to time We may utilize certain generative artificial intelligence (AI) services provided by third-parties to develop or suggest the content of messages that we choose to send to you. Some of these messages may be tailored to your interests based on information available to Us. By enrolling and remaining in the program, You agree to the use of AI and further that Our use of these AI services does not make those third-parties either senders or initiators of the text messages or otherwise responsible for the messages.
6. Message Frequency, Cost and Changes. Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. We also reserve the right to change the short code or phone number from which Our messages are sent.
7. Support Instructions. For support regarding the Program, text "HELP" to the number you received messages from or email us at ani@povbeauty.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
8. MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
9. Our Disclaimer of Warranty. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
10. Supported Devices. The Program is offered on an "as-is" basis. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. POV Beauty, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
11. Contact. This Program is a service of POV Beauty, located at 245 Fifth Avenue 11th floor, New York NY 10016, US.
12. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent's or legal guardian's permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent's or legal guardian's permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction's Applicable Law to use and/or engage with the Platform.
13. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act ("HIPAA") or the Health Information Technology for Economic and Clinical Health Act ("HITEC" Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
14. State Telemarketing Law - Residence: To the extent the law is relevant and applicable to the Program, we endeavor to comply with applicable state telemarketing laws, including, but not limited to, the Florida Telemarketing Act and Florida Do Not Call Act, the Oklahoma Telephone Solicitation Act of 2022, the Maryland Stop the Spam Calls Act of 2023, New Jersey's Senate Bill 921 (2023), and the Virginia Telephone Privacy Protection Act. For purposes of compliance with these state laws, you agree that we may assume that you are a resident of a particular state if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is an area code associated with that state. Further, You agree that You will not assert that you are a resident of a state other than the state applicable to your area code unless you affirmatively advise us in writing that you are a resident of a specific state by sending written notice to us. Insofar as you are a resident of a state with an applicable telemarketing law, you further agree that any mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “commercial telephone solicitation phone call”, “telephonic sales call”, “telemarketing sales call”, “telephone solicitation”, or “unsolicited telemarketing sales call” for purposes of these state laws, to the extent the law is otherwise relevant and applicable.
15. Dispute Resolution (Including Arbitration Agreement, Class Action Waiver).
Our Customer Service Specialists are ready to assist you and address your concerns—email us at: ani@povbeauty.com.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION IN ARBITRATION AND LITIGATION, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR POV Beauty WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Binding Individual Arbitration: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate ("Dispute"), such Dispute will be, to the fullest extent permitted by law and applicable rules, determined by arbitration before one arbitrator, provided, however, that no party shall be precluded from seeking remedies in small claims court for disputes or claims within the scope of its jurisdiction. Whether a Dispute falls within the jurisdictional limits of small claims court is for the small claims court to decide. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Dispute will be given the broadest possible meaning permitted by law. It includes, but is not limited to: (a) any dispute or claim that arose before the existence of these or any prior Terms and Conditions (including, but not limited to, claims relating to advertising); (b) any dispute or claim that is currently the subject of a purported class action litigation in which you are not a member of a certified class; and (c) any dispute or claim that may arise after termination of these Terms and Conditions and our relationship with you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues that relate to the scope, validity, and enforceability of the Agreement. You and POV Beauty agree that these Terms and Conditions evidence a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act and U.S. federal arbitration law and not state arbitration law.
Mandatory Informal Dispute Resolution Process. If you and POV Beauty have a Dispute, you and POV Beauty agree to make a good faith effort to informally resolve it. The party initiating the Dispute must send a written notice to the other party that describes the Dispute. The notice must include all of this information: (a) the initiating party's contact information (including name, address, telephone number, and email address) (with their counsel's contact information, if represented); (b) sufficient information to enable the other party to identify any phone number(s), transaction(s), or account(s) at issue; and (b) a detailed description of (1) the Dispute, (2) the nature and basis of the claims, and (3) the nature and basis of the relief sought, with a detailed calculation for such relief. The notice must be personally signed by the party initiating the Dispute (and their counsel, if represented).
If you have a Dispute with us, you must send this notice, including all of the information referenced above, by email to: ani@povbeauty.com or by mail to: 245 Fifth Avenue 11th floor, New York NY 10016, US. If we have a Dispute with you, we will send this notice, including all of the information referenced above, to you at the most recent contact information we have on file for you or, if we do not have a mailing address on file, you authorize us to text you at the phone number we have available to seek your mailing address.
For a period of sixty (60) days from receipt of a completed notice (which can be extended by agreement of the parties), you and we (and counsel, if you and we are represented) agree to negotiate in good faith in an effort to informally resolve the Dispute. To this end, the party receiving the notice may request a telephone or video settlement conference to aid in the resolution of the Dispute. If such a conference is requested, you and a POV Beauty representative will personally attend (with counsel, if you and we are represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period.
If the Dispute is not resolved within sixty (60) days after receipt of a completed notice (which period can be extended by agreement of the parties), you or POV Beauty may commence a formal dispute resolution proceeding consistent with the process set forth below. Compliance with and completion of this Mandatory Informal Dispute Resolution Process ("Process") is a condition precedent to you or POV Beauty commencing any formal dispute resolution proceeding in arbitration or small claims court. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration. Nothing in this section limits the right of a party to raise the sufficiency of a notice or compliance with this Process or to seek damages for non-compliance with this Process in arbitration, including with a Process Arbitrator. You or we may commence arbitration only if the Dispute is not resolved through compliance with this Process.
Arbitration Generally; Relief Available. There is no judge or jury in arbitration, and court review of an arbitration award is limited pursuant to the FAA. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the Terms as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief if authorized by law and warranted by the individual claim(s).
Arbitration Proceedings and Rules, Including Provisions Governing Mass Arbitrations. The following rules and procedures shall apply:
- Any arbitration will be administered by New Era ADR in accordance with their Virtual Expedited Arbitration Rules and Procedures, as well as any applicable General Rules and Procedures, except as modified by the Terms. New Era ADR's Virtual Expedited Arbitration Rules and Procedures and General Rules and Procedures are both available at www.neweraadr.com/rules-and-procedures/. Please review these procedures carefully because they may impact how your complaint is handled and these procedures differ from those that would otherwise apply if you elected to pursue your claim individually in small claims court.
- When You initiate arbitration, the only fee You are required to pay is New Era's consumer filing fee, which is currently a maximum of $300 for a consumer. All other fees or expenses charged by New Era ADR will be paid by us (unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose). You are responsible for fees and expenses owed to your legal counsel, if any, unless the arbitrator determines that an award of attorney's fees is warranted under applicable law.
- New Era ADR's rules and procedures include unique procedures for “mass arbitrations,” which are situations in which five (5) or more cases are filed that arise out of common issues of law and fact and are brought by the same law firm or group of law firms. Mass arbitration procedures are designed to provide for a more cost-effective resolution of disputes. Those mass arbitration procedures call for a limited number of cases to be treated as “bellwether” cases to be resolved on the merits earlier than other cases. The outcome of bellwether cases may be treated as precedent in evaluating the remaining cases. You understand and agree that these Procedures for Mass Arbitrations will apply and that they are designed to (a) lead to the streamlined and cost-effective resolution of claims; (b) ensure that large volume filings do not impose unnecessary burdens or impediments to the resolution and cost-effective adjudication of similar claims; and (c) preserve the integrity of the arbitration process. You also understand and agree that by choosing to bring your Dispute as a part of a Mass Arbitration that the resolution of your Dispute might be delayed and ultimately proceed in court and not in arbitration. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties' and New Era ADR's resources.
- If any provision of this Agreement is deemed by an arbitrator not to comply with the Minimum Fairness Standards published by New Era ADR and available at https://www.neweraadr.com/ then the Minimum Fairness Standards should be deemed to be incorporated by reference and any offending provision shall be deemed unenforceable.
- The arbitrator shall be selected pursuant to New Era ADR's standard rank and strike process, as set forth in New Era ADR's General Rules and Procedures.
- Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the state and Federal Judicial Circuit in which iMgN Labs's principle place of business is located, without regard to its conflict of laws rules.
- By signing the demand for arbitration, a party (and their counsel, if represented) certifies that they have complied with (a) the Dispute Resolution provisions of this agreement and (b) all of the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all represented parties and counsel as a court would.
- The arbitrator may award any relief or remedy that would be available in a court of law, including attorneys' fees and punitive damages where permitted by statute and is permitted to apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award.
- The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions. In the event of a Mass Arbitration, the parties agree that, for the sake of efficiency, an arbitrator's written decision may address some or all of the cases jointly. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA.
- Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. Notwithstanding anything to the contrary in this Agreement, if POV Beauty makes any future change to this arbitration provision, you may reject the change by sending Us written notice within 30 days of the change to 245 Fifth Avenue 11th floor, New York NY 10016, US, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and POV Beauty.
No class actions or juries. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THIS AGREEMENT, YOU AND POV Beauty ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT (the "FAA"). The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.
Invalidity and Survivability. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Future Changes to Dispute Resolution Section. Notwithstanding any provision to the contrary, you and we agree that if POV Beauty makes any future changes to this arbitration agreement (other than a change to the mailing or email address), you may reject any such change by sending us written notice personally signed by you within thirty (30) days of the change to POV Beauty at 245 Fifth Avenue 11th floor, New York NY 10016, US. The written notice must include the following information: (a) your name, address, phone number, and email address and (b) a statement that you wish to opt out of changes to the arbitration agreement. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change to the arbitration agreement, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this version of the arbitration agreement.
16. Miscellaneous. You warrant and represent to Us that you have all necessary rights, power, and authority to agree to the terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the terms of this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to these terms unless explicitly stated otherwise in writing. We reserve the right to change these terms from time to time. Any updates to this Agreement shall be communicated to you. Prior to such communication, the terms of this Agreement in effect as last made available to you immediately prior to your receipt of the notice will continue to govern our relationship. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
Appendix A
POV Beauty
Do Not Call Policy: Text Messaging
Regulatory Summary Regarding The Telephone Consumer Protection Act (TCPA)
The federal Telephone Consumer Protection Act (TCPA), related FCC regulations, and related court interpretations protect consumers from specific types of telemarketing. Under the TCPA “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(13). The TCPA imposes requirements for cold calls, prerecorded sales calls, and the use of autodialers. The TCPA also authorized the creation of the National Do Not Call Registry as well as internal Do Not Call lists. Various states have also adopted their own telemarketing laws.
POV Beauty is committed to complying with federal and state Do Not Call laws. This policy relates specifically to our compliance with those requirements for the purposes of sending text messages that constitute telemarketing. It is Our policy to not send telemarketing text messages to:
- Any telephone number for which we have not received prior express written consent, as defined by the Federal Communications Commission; and
- Any telephone number on Our Internal Do Not Call List.
We will maintain an Internal Do Not Call list and will promptly honor a request made in a reasonable manner to place your telephone number Our Do Not Call list within a reasonable time of such request, not to exceed 10 business days from the date of said request. To be placed on Our Do Not Call list, you may:
- Reply STOP, END, CANCEL, REVOKE, OPT OUT, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. Any other language used may not be recognized by Our system which may result in the request to opt-out not being processed.
- Request to be put on Our list by contacting customer service at ani@povbeauty.com and providing your name and telephone number.
Your telephone number shall be retained indefinitely on Our Do Not Call list unless you subsequently provide new prior express written consent to rejoin our SMS list. If you change your number, you must request for the new number to be put on Our Do Not Call list.
contact information
If you have any questions about these Terms or the Services, please contact POV at helpdesk@povbeauty.com.