Terms and Conditions
Welcome to Birchbox! Birchbox, Inc. (“Birchbox”, “us” or “we”) is the operator of the www.birchbox.com site (the “Site”), developer and operator of the Birchbox mobile applications (the “App”). These terms and conditions, together with any documents they expressly incorporate by reference (collectively the “Terms”), govern your access and use of the Site and App, including any content, functionality, subscriptions, and services offered on or through the Site and the App, whether as a guest or a registered user. These Terms also apply to the purchase and sale of products and subscriptions service through the Site and the App.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY BEFORE YOU START TO USE THE SITE AND THE APP, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
By accessing, browsing or using this Site or the App you acknowledge that you have read, understood and agreed to be bound and abide by the Terms. If you do not agree to these Terms, you should not use or access this Site or the App.
1. Use of the Site and the App
You may use the Site and the App only for your own noncommercial personal use and in compliance with these Terms. By using the Site or App, you represent and warrant that you (i) are located inside the United States, or (ii) are located outside the EU or EEA and agree to be bound by U.S. laws. The Site and App are intended for users situated in the United States. We currently do not offer goods and services to the EU or EEA.
We grant you a personal, limited, non-transferable, non-exclusive license to access and use the Site and the App. We reserve the right, in our sole discretion and without notice to you, to revise the products and services available on the Site and the App and to change, suspend or discontinue any aspect of the Site and the App and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on the use of the Site and the App or restrict your access to part, or all, of the Site and the App without notice or penalty. Your continued use of the Site and the App will constitute your acceptance of any such changes.
You are responsible for your own communications, including the transmission, uploading or posting of information to the Site or the App and are responsible for the consequences of such communications. Any other use of the Site or the App requires the prior written consent of Birchbox. You may not otherwise copy, modify, or distribute the contents of this Site or the App without the prior written consent of Birchbox. You may not modify, publish, transmit, participate in the transfer of, sell, create derivative works from, or in any way exploit any of the content found on the Site or the App, in whole or in part. We require all Members (as defined below in section 4 of these Terms) to agree not to use the Site or the App, and specifically prohibit any use of the Site or the App, for any of the following purposes:
- Posting, communicating or transmitting any material that infringes on any intellectual property, publicity or privacy rights of another person or entity;
- Posting any information which is untrue, inaccurate or not your own;
- Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation;
- Attempting to interfere in any way with the Site, the App’s or Birchbox’s network security, or attempting to use the Site or the App’s service to gain unauthorized access to any other computer system; and
- Using the Site or the App to drop ship merchandise to third parties.
You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Site or the App. Further, you may not use any such automated means to manipulate the Site and the App, such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the Site and the App or any other user's use of the Site and the App, including, without limitation, via means of overloading, “flooding,'' “mailbombing” or “crashing” the Site or the App, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms. You may not frame portions of the Site or the App within another web site. You may not resell use of, or access to, the Site or the App to any third party without the prior written consent of Birchbox.
2. Registration and Passwords
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
3. Additional Terms and Conditions
You agree that additional terms and conditions may apply to specific products, orders or your use of certain portions of the Site or the App, including with respect to ordering, shipping and return policies, review guidelines, User Generated Content Terms; community guidelines and membership reward programs (including the Loyalty Program Terms) and other terms and conditions and policies which you may find throughout our Site in connection with certain functionality, features or promotions as well as customer service (“Additional Terms”), which Additional Terms are made part of these Terms by reference. If there is a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
4. Site and App Not for Minors
5. Fraud Protection
As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
If you wish to purchase any product or service made available through the Site or the App (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any transaction. By submitting such information, you grant to Birchbox the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Site and the App are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Site and the App does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from this Site and the App. By placing an order, you represent that the products ordered will be used only in a lawful manner. Birchbox reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service.
You agree that by placing an order on the Site or the App, you are entering into a binding contract with Birchbox and agree to pay all charges that may be incurred by you or on your behalf through the Site and the App, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
7. The Subscription Contract Between You And Us
Birchbox may offer various subscription types: including rebillable monthly subscriptions (“Month-to-Month Rebillable Subscriptions”); prepaid three, six or twelve month subscriptions (“Prepaid Subscriptions”); rebillable monthly subscriptions with a commitment of three months (“3-Month Subscription”), six months (“6-Month Subscription”) or twelve months (“12-Month Subscription”) (collectively “Monthly Subscriptions With Commitment”) and prepaid gift subscriptions of three, six or twelve months (“Gift Subscriptions”).
AUTOMATIC RENEWAL TERMS
With respect of Birchbox subscriptions subject to automatic renewal, you agree that once you have expressly agreed for your credit card to be charged on a recurring basis, and agreed to the amount of the recurring charges, Birchbox may submit periodic charges (e.g., monthly) to your chosen payment method without further authorization from you, until you provide prior notice at any time that you wish to terminate this authorization or to change your payment method. You agree that such notice will not affect charges submitted before Birchbox reasonably could act. Information on how to cancel is described below.
MONTH-TO-MONTH REBILLABLE SUBSCRIPTIONS
By purchasing a Month-to-Month Rebillable Subscription, you agree and acknowledge that your subscription has an initial and recurring payment charge at the then-current subscription rate and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by Birchbox after the expiration date of your payment card.
Automatic Monthly Renewal Terms
Your subscription will be automatically renewed for successive monthly periods and your payment method will automatically be charged for each successive monthly period at the then-current subscription rate until you cancel your Month-to-Month Rebillable Subscription renewal.
Cancellation Policy For Month-to-Month Rebillable Subscription Renewals
To cancel your Month-to-Month Rebillable Subscription at any time, you may (i) logon to your account and follow the cancellation procedures there, (ii) send us a message at http://info.birchbox.com and we will do it for you, or (iii) go to support.birchbox.com and schedule a call with one of our Discovery Specialists who can help you cancel. If you cancel, you will not be rebilled during your next monthly billing cycle.
By purchasing a Prepaid Subscription, you agree and acknowledge that your subscription has an initial pre-payment feature for the applicable length of service (three, six or twelve months) and a recurring Prepaid Subscription renewal fee at the then-current applicable Prepaid Subscription rate and you accept responsibility for all recurring charges prior to cancellation, including, where applicable, any charges processed by Birchbox after the expiration date of your payment card.
Automatic Renewal Terms
At the end of each Prepaid Subscription term, your subscription will be automatically extended for another term of the applicable length of service (three, six or twelve months) and your payment method will automatically be charged the applicable Prepaid Subscription renewal fee at the then-current Prepaid Subscription rate until you cancel your Prepaid Subscription renewal.
Cancellation Policy For Prepaid Subscriptions Renewals
To cancel the renewal of your Prepaid Subscription, at any time after you were billed for the then-current term, you may (i) logon to your account and follow the cancellation procedures there, (ii) send us a message at http://info.birchbox.com and we will do it for you, or (iii) go to support.birchbox.com and schedule a call with one of our Discovery Specialists who can help you cancel. If you cancel the auto-renewal, your subscription will remain active until the end of your then-current subscription term.
MONTHLY SUBSCRIPTIONS WITH COMMITMENT
If You have a Prepaid Subscription, you will receive notice whether, Monthly Subscriptions With Commitment terms apply to You when your plan renews.
By purchasing a Monthly Subscription With Commitment, you agree and acknowledge that your subscription has an initial and recurring payment charge at the then-current subscription rate and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by Birchbox after the expiration date of your payment card.
Automatic Monthly Subscriptions With Commitment Renewal Terms
Your subscription will be automatically renewed for successive three, six or twelve month periods, as applicable, and your payment method will automatically be charged for each successive subscription term period at the then-current subscription rate until you cancel your subscription.
Cancellation Policy for Monthly Subscriptions With Commitment Renewals
- To cancel your 3-Month Subscription renewal for the following three months, at any time, you may (i) logon to your account and follow the cancellation procedures there, (ii) send us a message at http://info.birchbox.com and we will do it for you, or (iii) go to support.birchbox.com and schedule a call with one of our Discovery Specialists who can help you cancel. If you cancel the auto-renewal, your subscription will remain active until the end of your then-current subscription term.
- To cancel your 6-Month Subscription renewal for the following six months, at any time, you may (i) logon to your account and follow the cancellation procedures there, (ii) send us a message at http://info.birchbox.com and we will do it for you, or (iii) go to support.birchbox.com and schedule a call with one of our Discovery Specialists who can help you cancel. If you cancel the auto-renewal, your subscription will remain active until the end of your then-current subscription term.
- To cancel your 12-Month Subscription renewal for the following twelve months, at any time, you may (i) logon to your account and follow the cancellation procedures there, (ii) send us a message at http://info.birchbox.com and we will do it for you, or (iii) go to support.birchbox.com and schedule a call with one of our Discovery Specialists who can help you cancel. If you cancel the auto-renewal, your subscription will remain active until the end of your then-current subscription term.
CHANGES TO THE PRICE AND TO BIRCHBOX SUBSCRIPTIONS PLANS
We reserve the right to adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your Birchbox Subscriptions Plans will take effect following notice to you.
8. Product Information; Limitation on Quantities
Excluding any content that may be submitted by Members from time to time, we strive to ensure that the information on the Site and the App is complete and reliable. Certain information may contain pricing errors, typographical errors and other errors or inaccuracies, which we may correct without liability. We also reserve the right to limit quantities purchased by Members and to revise, suspend, or terminate an event or promotion at any time without notice (including after an order has been submitted or acknowledged). We do not guarantee that all products described on our Site or the App will be available.
9. SMS Terms
If you opt into the Birchbox messaging program, you may receive marketing/promotional text messages (incl. cart reminders) from Birchbox concerning products and services, using automated dialing systems (“Text Messages"). Message frequency varies per month. Your consent is not required to purchase goods or services. By providing your consent and mobile phone number, you expressly agree to receive Text Messages from us to the mobile phone number you provided.
You may opt out of receiving Text Messages at any time directly on your mobile device by texting the keyword STOP. You may also opt-out directly in your account settings or contacting us via email and specifying that you wish to opt-out from Text Messages. After this, we will send you a Text Message to confirm that you have been unsubscribed and you will no longer receive Text Messages from us. If you want to join again, just sign up as you did the first time and we will start sending Text Messages to you again. If you are experiencing issues with the messaging program you can text the keyword HELP for more assistance, or you can get help directly at firstname.lastname@example.org.
10. Proprietary Rights
You acknowledge and agree that the content (other than content that may be submitted by Members), materials, text, images, videos, graphics, trademarks, logos, button icons, music, software and other elements available on the Site and the App are the property of Birchbox or our licensors and are protected by United States and international copyright, trademark and/or other intellectual property or proprietary rights and laws. These Terms permit you to use the Site and the App for your personal, non-commercial use only. You agree not to sell, license, rent, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, modify or create derivative works from any content or materials on the Site or the App.
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site and the App in breach of the Terms, your right to use the Site and the App will stop immediately and you must, at our option, return or destroy any copies of the materials you have made.
Birchbox and the Birchbox logo are registered trademarks, and Discover Beauty Better, Open For Beautiful, Open for Dapper and Open for Handsome are trademarks of Birchbox, Inc. All other trademarks names, product, services names, designs, and slogan are the property of their respective owners. All of our Site's and the App's content is copyrighted by Birchbox, Inc. All rights reserved. Except as expressly set forth in these Terms, no license is granted to you and no rights are conveyed by virtue of accessing or using the Site or the App. All rights not granted under these Terms are reserved by Birchbox.
If you submit an unsolicited idea to us via the Site, App or otherwise, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that we shall exclusively own all known or hereafter existing rights to the idea everywhere in the world, and that such idea is hereby irrevocably assigned to us. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and or to the extent necessary for Birchbox to utilize your idea, you hereby grant Birchbox an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation to you.
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
11. Contributed Content Guidelines
Birchbox values your engagement. When contributing content, please remember the following guidelines:
- By submitting or posting any materials or content on the Site or the App, you grant Birchbox a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such materials or any part of such materials. You hereby represent, warrant and covenant that any materials you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant Birchbox the license specified above. You further represent, warrant and covenant that any materials you provide will not contain libelous or otherwise unlawful, abusive or obscene material. Birchbox will be entitled to use any content submitted by you without incurring obligations of confidentiality, attribution or compensation to you.
- All contributed content is subject to the Terms, which include our policy regarding copyright infringement, and our User Generated Content Terms;
We reserve the right not to post your content if it contains any of the following types of content or violates other guidelines. By way of example, and not as a limitation, you agree that when contributing content, you will not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Use obscenities, discriminatory language, or other language not suitable for a public forum;
- Post advertisements, “spam” content, or references to other products, offers, or websites;
- Post email addresses, URLs, phone numbers, physical addresses or other forms of contact information;
- Post unduly critical or spiteful comments of other content posted on the page or its authors;
- Post files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have expressly received all necessary consents;
- Post files or content that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, or impersonate any person or entity or falsely state or misrepresent your affiliation with any person or entity;
We are under no obligation to screen or monitor any content, but may review the content from time to time at its sole discretion. We reserve the right to edit or remove any content at our sole discretion for any reason.
Under no circumstances will Birchbox be liable in any way for any content or materials of any third parties, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any such content or communications posted on the Site or the App or endorse any opinions expressed therein.
In addition, if you wish to share feedback with us about product selection, pricing, ordering, delivery or other customer service issues, please do not submit this feedback through a content submission. Instead, contact us directly via email@example.com.
12. General Disclaimers
You assume all responsibility and risk with respect to your use of the Site or the App. THE SITE, THE APP, AND ALL CONTENT, MERCHANDISE, AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THIS SITE OR THE APP OR A “LINKED” SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY. SPECIFICALLY, BUT WITHOUT LIMITATION, BIRCHBOX DOES NOT WARRANT THAT: (1) THE INFORMATION ON THIS SITE OR THE APP IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SITE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE APP OR THE SERVER THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Birchbox makes no warranties of any kind regarding any non-Birchbox sites to which you may be directed or hyperlinked from this Site or the App. Hyperlinks are included solely for your convenience, and Birchbox makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such non-Birchbox sites. Birchbox does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Site or the App.
BIRCHBOX DOES NOT REPRESENT OR WARRANT THAT THE NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION ON OUR SITE IS ACCURATE OR COMPLETE SINCE THIS INFORMATION IS PROVIDED BY THE PRODUCT MANUFACTURERS OR SUPPLIERS AND ON OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS AND UPDATE THEIR LABELS. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON OUR SITE AND THAT YOU CONSULT THE PRODUCTS LABEL OR CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY OR ALLERGIC CONCERN OR QUESTION ABOUT A PRODUCT.
13. Disclaimer – No Professional Advice
Any information provided by us regarding the products or otherwise (e.g. product descriptions or instructions) is for informational purposes only. You should not take any action based upon any information contained on the Site or the App. Use of the Site or the App is not meant to serve as a substitute for professional advice. You should read and strictly follow all product labels, packaging inserts and instructions and all manufacturer directions and warnings and seek independent professional advice when appropriate.
This Site and the App may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Birchbox are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Birchbox. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Your total price will include the price of the product plus any applicable sales tax; such state and local sales tax is based on the shipping address and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states where the goods sold over the internet are taxable.
You agree to indemnify, hold harmless, and defend Birchbox, its parent, subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, agents and affiliates from any and all claims, liabilities, damages, costs and expenses of defense, including attorneys’ fees, in any way arising from or related to your use of the Site or the App, your violation of these Terms, defamatory or infringing content posted to the Site or the App by you, or your violation of any law or the rights of a third party.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIRCHBOX, ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR THE APP BE LIABLE TO ANY USER OF THE SITE OR THE APP OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR THE APP, WHETHER BASED UPON WARRANTY, CONTRACT OR TORT (NEGLIGENCE), EVEN IF BIRCHBOX HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF BIRCHBOX, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR THE APP TO YOU FOR ANY DIRECT DAMAGES, EXCEED THE AMOUNT YOU PAID TO BIRCHBOX IN CONNECTION WITH THE EVENT GIVING RISE TO SUCH LIABILITY.
17. International Use
We control and operate the Site and the App from the United States. We provide this Site and App for use only persons located in the United States. We make no representation that materials on the Site or the App are appropriate or available for use outside the United States. If you choose to access this Site or the App from outside the United States, you do so at your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
18. Risk of Loss
Any merchandise purchased from our Site or the App will be shipped by a third party carrier. As a result, title and risk of loss for such merchandise will pass to you upon our delivery to the carrier.
19. Copyright Infringement; Notice and Take Down Procedures
Birchbox specifically prohibits the posting of any content that violates or infringes the copyright rights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity. If you believe that any material contained on this Site or the App infringes your copyright or other intellectual property rights, you should notify us of your copyright infringement claim in accordance with the following procedure. Birchbox will process notices of alleged infringement that it receives and will take appropriate action as required by the Digital Millennium Copyright Act (“DMCA”). The DMCA requires that notice of claimed copyright infringement should be sent to the following address:
16 Madison Square West, 4th Floor
New York, NY 10010
Attention: DMCA Agent
To be effective, the notice must be in writing and contain the following information (DMCA, 17 U.S.C. §512(c)(3)):
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notifice, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
20. Waiver; Remedies
The failure of Birchbox to partially or fully exercise any rights or the waiver of Birchbox of any breach of these Terms by you shall not prevent a subsequent exercise of such right by Birchbox or be deemed a waiver by Birchbox of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Birchbox under these Terms and any other applicable agreement between you and Birchbox shall be cumulative, and the exercise of any such right or remedy shall not limit Birchbox’s right to exercise any other right or remedy.
21. Governing Law
All matters related to the Site, the App and these Terms shall be governed and constructed in accordance with the laws of the State of New York without regard to conflict of laws provisions.
Any dispute relating in any way to your visit to, or use of, the Site or the App, to the products you purchase through the Site or the App (including a subscription), or to your relationship to Birchbox ("Claims") shall be exclusively submitted to confidential and binding arbitration in New York, New York, including based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of New York. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Birchbox agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. You may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association at using the contact information noted below.
American Arbitration Association
Website: www.adr.org. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms, in which case these Terms will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties. ANY CLAIM YOU HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM ARISES. AS NOTED ABOVE, YOU AND BIRCHBOX HEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL.We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is determined by the court to be outside its jurisdiction, the parties agree that the dispute shall then be submitted to arbitration.22. Changes of the SiteWe may update the content on the Site and the App from time to time. In addition, Birchbox reserves the right to revise these Terms at any time by updating this posting; provided any material modifications will only be applied prospectively. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. You are encouraged to review these Terms each time you use the Site or the App and prior to purchasing any product or service that are available through this Site or the App. Your continued use of the Site or the App after the posting of changes will constitute your acceptance of and agreement with such changes. 23. Your FeedbackThis Site and the App are operated by Birchbox Inc. All feedback, comments, requests for technical support, and other communications relating to the Site should be directed to firstname.lastname@example.org.