Smashbox Online (“we”, “us”, or “our”) provides the content and services available on the website www. smashbox.com (“Site”) to you, including the SmashCash loyalty program (“SmashCash” or “Program”) and the Smashbox PRO program (“PRO”) subject to the following terms and conditions, the SmashCash terms and conditions available at SmashCash Terms and Conditions, our Privacy Policy 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, all of which are deemed a part of and included within these terms and conditions (collectively, "Terms and Conditions").
THE SECTION BELOW TITLED “DISPUTES” CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
You must be 18 years old or the age of majority in your jurisdiction in order to make a purchase on our Site. If you are under 18 years old or the age of majority in your jurisdiction, then you may not make a purchase on our Site. If you are under 13 years old, you may browse our Site. However, you may not provide personal information to us, make a purchase on the Site nor register on the Site. This Site is not directed to children under 13 years old. By accessing or using the Site, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and Conditions. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU MAY NOT USE OUR SITE.
1. Privacy
Please review our Privacy Policy so that you may understand our privacy practices.
Smashbox PRO membership is currently only available to artists and artistry students in the United States. Makeup artists/professional and artistry students may apply for PRO membership by downloading and submitting the application available on the Site. You may contact us to confirm your application was received, but please allow at least two (2) weeks for processing.
As a PRO member, you will receive a discount on Smashbox products and access to our PRO newsletter packed with the latest trends in makeup and professional artistry. You will receive your product discount when you place an order with Smashbox Cosmetics by: (1) calling (888) 763-1361 and providing your name and email address to place an order over the phone; (2) logging into your Smashbox PRO account on the Site; or (3) presenting valid government-issued photo identification when making a purchase at a Smashbox retail store. Please be aware that the PRO discount does not apply to promotional items (i.e., Let’s Do Lunch, Gifts with Purchase, Create Your Own Kit, Friends & Family sales) or items already on sale (i.e., the Final Call section). The PRO discount is not available at department stores, specialty stores, or any retail store not solely owned and operated by Smashbox. Smashbox reserves the right to limit PRO members’ purchases. Visit http://www.smashbox.com/smashbox-pro and our FAQs for more information about PRO discount guidelines and purchase policy.
Smashbox PRO membership and the special privileges associated with it may only be used by the individual to whom the membership is issued. Membership benefits are non-transferrable. Products purchased by Smashbox PRO members using their membership discount are for the member’s personal and professional use only, and may not be resold under any circumstances. Smashbox reserves the right to verify your continued eligibility and may request additional professional documentation at any time. Any suspected abuse of the PRO program, failure to follow program terms, illegal activity, fraud, misrepresentation or other conduct inconsistent with these Terms and Conditions, may result in the revocation of your PRO membership and make you ineligible for further participation in the PRO program. Smashbox also reserves the right to modify or terminate the PRO program and/or any of its benefits at any time without prior notification
4. Products and Services for Personal Use
The products and services available on the Site, and any samples thereof we may provide to you, are for personal use only. You may not sell or resell any of the products or services, or samples thereof, you purchase or otherwise receive from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products or services to be provided to you that we believe, in our sole discretion, may result in the violation of our Terms and Conditions.
5. Purchase Related Policies and Procedures
To view policies and procedures related to orders placed through this Site (such as order processing, shipping and handling, returns and exchanges), click here.
Smashbox PRO Purchase Policy
Products purchased by PRO members using the membership discount are for the member’s personal and professional use only and may not be resold under any circumstances. Smashbox reserves the right to limit member purchases. Items purchased with the PRO discount are final sale. The Smashbox PRO membership discount does not apply to promotional items (i.e., Gifts with Purchase, Create Your Own Kit, Friends & Family sales) or items already on sale (i.e., the Final Call section). For PRO member only, there is a maximum purchase per transaction of $500 (post discount) per order. No more than three (3) units of the same item may be purchased per order.
6. Accuracy of Information
We attempt to be as accurate as possible when describing our products on the Site; however we do not warrant that the product descriptions, colors, information or other content available on the Site are accurate, complete, reliable, current, or error-free.
This Site may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. Please note that such errors, inaccuracies or omissions may relate to pricing and availability, and we reserve the right to cancel or refuse to accept any order placed based on incorrect pricing or availability information. We apologize for any inconvenience.
7. Intellectual Property
All information and content available on the Site and its look and feel, including but not limited to trademarks, logos, service marks, features, functions, text, graphics, logos, button icons, images, audio clips, data compilations and software, and the compilation and organization thereof (collectively, the "Content") is our property or the property of our parents, subsidiaries, our affiliates, partners or licensors, and is protected by United States and international laws, including laws governing copyrights and trademarks.
Except as set forth in Section 8 below, or as required under applicable law, neither the Content nor any portion of the Site may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose without our express, prior written consent.
8. Limited Licenses
We grant you a limited, revocable, non-transferable, and non-exclusive license to access and make personal use of the Site. You understand and agree that you will not do or attempt to do or cause any third party to do or attempt to do any of the following in connection with your use of the Site:
frame or utilize framing techniques to enclose the Site or any portion thereof;
use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Site, Content (except caching or as necessary to view the Site), or the personal information of others without our prior written permission or authorization;
make any use of the Site or any Content other than for personal use;
modify, reverse engineer or create any derivative works based upon the Site or any Content;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
"stalk" or otherwise harass including advocating harassment of another, entrap or harm any third party including harming minors in any way;
intentionally violate any applicable local, state, national or international law;
transmit, upload, post, e-mail, share, distribute, reproduce, or otherwise make available any software viruses, malware, program, code, file, or other material intended to interrupt, disrupt, alter, destroy, or limit any part of the Site; and/or
engage or make any unsolicited or unauthorized advertising, solicitation or promotional material, including chain letters, mass mailings, or any form of "spam."
We also grant you a limited, revocable, non-transferable, and non-exclusive license to create a hyperlink to the home page of the Site for personal, non-commercial use only. A website that links to the Site (i) may link to, but not replicate, any and/or all of our Content; (ii) may not imply that we are endorsing such website or its services or products; (iii) may not misrepresent its relationship with us; (iv) may not contain content that could be construed as distasteful, obscene, offensive controversial or illegal or inappropriate for any ages (as determined in our sole discretion); (v) may not portray us or our products or services in a false, misleading, derogatory, or otherwise offensive or objectionable manner, or associate us with undesirable products, services, or opinions; and/or (vi) may not link to any page of the Site other than the home page. We may, in our sole discretion, request that you remove any link to the Site, and upon receipt of such request, you shall immediately remove such link and cease any linking unless separately and expressly authorized in writing by us to resume linking.
Any unauthorized use by you of the Site or any and/or all of our Content automatically terminates the limited licenses set forth in this Section 8 without prejudice to any other remedy provided by applicable law or these Terms and Conditions.
9. Your Obligations and Responsibilities
By accessing or using the Site or any Content, you agree that you will comply with these Terms and Conditions and any warnings or instructions on the Site. You agree that when accessing or using the Site or any Content, you will act in accordance with the law, custom and in good faith. You may not make any change or alteration to the Site or any Content or services that may appear on this Site and may not impair in any way the integrity or operation of the Site. Without limiting the generality of any other provision of these Terms and Conditions, if you default negligently or willfully in any of the obligations set forth in these Terms and Conditions, you shall be liable for all the losses and damages that this may cause to us, our parents, subsidiaries, affiliates, partners or licensors.
10. Your Account
Subject to the age restrictions outlined above, you may view and use many features of the Site without registering, including making purchases, but in order to access and use some parts of the Site, you may need to register an account with us. You are responsible for maintaining the confidentiality of your account, username and password and for restricting access to your computer. If there has been an unauthorized use of your password or account, please notify us immediately. You are responsible for providing and maintaining current, complete, accurate and truthful information on your account. You agree to accept responsibility for all activities that occur with your permission or authorization under your account, username and/or password, or because you fail to maintain sufficient security over your account, username and/or password. If you are accessing and using the Site on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms and Conditions provided herein, and to the extent you do not have such authority you agree to be bound to these Terms and Conditions and to accept liability for harm caused by any wrongful use of the Site or Content resulting from such access or use. You may cancel your online account with us at any time, click here for instructions. We reserve the right to refuse service and/or terminate accounts without prior notice if these Terms and Conditions are violated or if we decide, in our sole discretion, that it would be in our best interest to do so.
SmashCash members should notify SmashCash of changes to their information by contacting Customer Service at (888) 763-1361 or email us using our contact form, available at http://www.smashbox.com/customer-service-contact-us.
11. Third Party Links
We are not responsible for the content of any third party sites even if they are linked to or from the Site. Links appearing on the Site are for convenience only and are not an endorsement by us, our parents, subsidiaries, affiliates or partners of the referenced content, product, service, or supplier. You use and access of these third party websites is at your own risk. We are in no way responsible for examining or evaluating, and we do not warrant the offerings of the third party websites or any other websites linked to or from the Site, nor do we assume any responsibility or liability for the actions, content, products, or services of such websites, including without limitation, their privacy policies and terms and conditions. You should carefully review the privacy policies and terms and conditions of the third party websites you visit.
12. Special Features, Functionality and Events
The Site may offer certain special offerings or events (such as contests, sweepstakes or other offerings) which may (a) be subject to terms of use, rules and/or policies in addition to or in lieu of these Terms and Conditions; and (b) be offered by us or by third parties. If so, we will notify you of this and if you choose to take advantage of these offerings, you agree that your use of those offerings will be subject to such additional or separate terms of use, rules and/or policies.
13. User Content
When you transmit, upload, post, e-mail, share, distribute, reproduce or otherwise make available suggestions, ideas, inquiries, feedback, data, text, software, music, sound, photographs, graphics, images, videos, messages or other materials ("User Content") on the Site in any manner (including, but not limited to, through the “Contact Us” form), you are entirely responsible for such User Content. You hereby grant to us a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit, and otherwise exploit such User Content throughout the world, in all media now known or hereafter developed, for any purpose whatsoever, including without limitation, developing, manufacturing, distributing and marketing products.
You represent and warrant that you own or otherwise control the rights to your User Content. You agree not to engage in or assist or encourage others to engage in transmitting, uploading, posting, e-mailing, sharing, distributing, reproducing, or otherwise making available User Content that (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) you do not have a right to make available under any law or under contractual or fiduciary relationships; (c) is known by you to be false, fraudulent, inaccurate or misleading; (d) you were compensated for or granted any consideration by any third party; or (e) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
We are in no way responsible for examining or evaluating User Content, nor do we assume any responsibility or liability for the User Content. We do not endorse or control the User Content transmitted or posted on the Site and therefore, we do not guarantee the accuracy, integrity or quality of User Content. You understand that by using the Site, you may be exposed to User Content that is offensive, indecent or objectionable to you. Under no circumstances will we be liable in any way for any User Content, including without limitation, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred by you as a result of the use of any User Content transmitted, uploaded, posted, e-mailed or otherwise made available via the Site. You hereby waive all rights to any claims against us for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with User Content.
You acknowledge that we have the right (but not the obligation) in our sole discretion to refuse to post or remove any User Content and we reserve the right to change, condense, or delete any User Content. Without limiting the generality of the foregoing or any other provision of these Terms and Conditions, we have the right to remove any User Content that violates these Terms and Conditions or is otherwise objectionable and we reserve the right to refuse service and/or terminate accounts without prior notice for any users who violate these Terms and Conditions or infringe the rights of others.
Deletion of User Content
If you wish to delete certain of your public User Content, such as your ratings and reviews posting(s), on the Site or in connection with our mobile applications, , please contact us by email at SmashboxOnlinetech@Smashbox.com and include the following information in your deletion request: first name, last name, user name/screen name (if applicable), email address associated with our website and/or mobile applications, your reason for deleting the posting, and date(s) of posting(s) you wish to delete (if you have it). We may not be able to process your deletion request if you are unable to provide such information to us. Please allow up to 10 business days to process your deletion request.
14. Smashbox PRO Editorial Credit Program
Smashbox offers all makeup artists free product for editorial credit. If a makeup artist mentions Smashbox in any beauty or fashion print magazine or editorial, the artist is eligible for a product credit pending approval by Smashbox. In order to receive the credit, the editorial should read for example, “Makeup by Jane Doe for Smashbox Cosmetics”. Credit amounts below are subject to change based on publication and circulation:
National magazine editorial - $200 credit (retail value)
Local or regional magazine editorial - $50 credit (retail value)
To receive your credit, send a copy of the editorial by email to ProArtist@smashbox.com. You can also mail a hardcopy to: Smashbox PRO Artist Program, 8538 Warner Drive, Culver City, CA 92032. Be sure to include all of your contact information.
15. Notices of Claimed Copyright Infringement
We respect the intellectual property of others and require that users of the Sites do the same. We also maintain a policy that provides for the termination in appropriate circumstances of the Sites’ use privileges of users who are repeat infringers of intellectual property rights. Consistent with the Digital Millennium Copyright Act, if you believe that copyrighted materials have been copied in a way that constitutes copyright infringement, please send an e-mail or written notice to our Designated Agent for notices of infringement and provide the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that you claim is infringed;
Identification of the copyrighted work(s) that you claim has been infringed;
A description of the material that you claim is infringing and the location of that material on the Site;
Your address, telephone number and email address;
A statement by you that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Designated Agent for notice for claims of copyright infringement is Gregg Marrazzo, Senior Vice President and Deputy General Counsel, The Estée Lauder Companies Inc., 767 Fifth Avenue, New York, N.Y. 10153. Telephone: (212) 277-2320. Email: gmarrazzo@estee.com.
NOTE: THE ABOVE CONTACT INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING SMASHBOX ONLINE THAT COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS AND SHOULD BE DIRECTED TO OUR CUSTOMER SERVICE GROUP BY EMAIL TO SMASHBOXONLINETECH@SMASHBOX.COM.
16. Disclaimer of Warranties; Limitation of Liability
THE SITE AND ITS CONTENT AND SERVICES ARE PRESENTED "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE SITE TERMS AND CONDITIONS OR THE SITE OR ITS CONTENTS OR SERVICES.
YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY OR IN TORT (INCLUDING NEGLIGENCE) FOR ANY (a) INTERRUPTION OF BUSINESS; (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE; (c) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (d) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEBSITE LINKS ON THE SITE; (e) COMPUTER VIRUSES, SYSTEM FAILURES OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE SITE, INCLUDING DURING HYPERLINK TO OR FROM THIRD PARTY WEBSITES (f) ANY INACCURACIES OR OMISSIONS IN CONTENT OR (g) EVENTS BEYOND OUR REASONABLE CONTROL.
FURTHER, WE WILL NOT BE LIABLE IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) RELATED TO THE SITE OR YOUR USE THEREOF, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY FOR SUCH CLAIMS EXCEED ONE HUNDRED DOLLARS ($100.00).
YOU AGREE THAT NO CLAIMS OR ACTION IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) ARISING OUT OF, OR RELATED TO, THE USE OF THE SITE OR THESE TERMS AND CONDITIONS MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION RELATING TO SUCH CLAIM OR ACTION AROSE.
17. Indemnification
You agree to defend, indemnify and hold us harmless for any loss, damages or costs, including reasonable attorneys' fees, resulting from any third party claim, action, or demand arising from (i) your use of the Sites or the Site Content in violation of any law, rule, regulation or these Terms and Conditions, or (ii) any part of your User Content. You also agree to indemnify us for any loss, damages, or costs, including reasonable attorneys' fees, resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure.
18. Disputes
With respect to any dispute, claim, or controversy regarding the Site, all rights and obligations and all actions contemplated by these Terms and Conditions shall be governed by the laws of New York, as if the Terms and Conditions were a contract wholly entered into and wholly performed within New York. ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE SITE, THESE SITE TERMS AND CONDITIONS, OR THE RELATIONSHIP BETWEEN THE PARTIES (OTHER THAN CLAIMS RELATING TO THE INTELLECTUAL PROPERTY RIGHTS OF SMASHBOX OR OUR AFFILIATES, PARTNERS OR LICENSORS OR CLAIMS IN EQUITY) SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN NEW YORK AND YOU AGREE TO SUBMIT YOURSELF TO THE JURISDICTION AND PROCEEDINGS THEREOF. ARBITRATION MEANS THAT AN ARBITRATOR(S) WILL DECIDE THE CLAIM, AND YOU WILL NOT HAVE THE RIGHT TO SUE IN COURT OR TO HAVE A JUDGE OR JURY DECIDE YOUR CLAIM. YOUR RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY ALSO BE LIMITED IN ARBITRATION. It is further agreed that any dispute over the scope of this arbitration provision and any dispute as to whether a claim is arbitral shall be submitted to the arbitrator for decision. Notwithstanding the foregoing, to the extent you have in any manner violated or threatened to violate our intellectual property rights or the intellectual property rights of our affiliates, partners or licensors or otherwise have a cause of action in equity, we may seek injunctive or other appropriate relief in any court of competent jurisdiction and you consent to jurisdiction and venue in any such court for such purposes. Arbitration under this agreement shall be conducted under the Consumer-Related Disputes Supplementary Rules then prevailing with the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms and Conditions shall be joined to an arbitration involving any other party subject to this Terms and Conditions, whether through class arbitration proceedings or otherwise.
You agree that any arbitration or proceeding shall be limited to the dispute between us and you individually, and (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
19. Consent to Receive Notices Electronically by Posting on the Site and Via Email
You consent to receive any agreements, notices, disclosures and other communications (collectively, "Notices") to which these Terms and Conditions refer from us electronically including without limitation by e-mail or by posting notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive Notices electronically, you must notify us of your withdrawal of such consent by emailing us at SmashboxOnlinetech@Smashbox.com and discontinue your use of this Site. In such event, all rights granted to you pursuant to these Terms and Conditions, including but not limited to Section 8 hereof, shall automatically terminate. Unfortunately, we cannot provide the benefits of this Site to any user that cannot consent to receipt of Notices electronically.
Please note that this consent to receive Notices is entirely separate from any election you may make with respect to receipt of marketing communications. Your options with respect to receipt of marketing communications are set forth in our Privacy Policy.
20. General
You acknowledge and agree that these Terms and Conditions constitute the complete and exclusive agreement between us concerning your use of the Site, and supersede and govern all prior proposals, agreements, or other communications.
We reserve the right, in our sole discretion, to change these Terms and Conditions at any time by posting the changes on the Site and providing notice of such change. Any changes are effective immediately upon posting to the Site. The Effective Date of the current version of the Terms and Conditions is at the top of this page. Your continued use of the Site thereafter constitutes your agreement to all such changed Terms and Conditions. We may, with or without prior notice, terminate any of the rights granted by these Terms and Conditions. You shall comply immediately with any termination or other notice, including, as applicable, by ceasing all use of the Site.
Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, or other form of joint enterprise between us. Our failure to require your performance of any provision hereof shall not affect our full right to require such performance at any time thereafter, nor shall our waiver of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of these Terms and Conditions shall be unenforceable or invalid under any applicable law or be so held by any applicable arbitral award or court decision, such unenforceability or invalidity shall not render these Terms and Conditions unenforceable or invalid as a whole but these Terms and Conditions shall be modified, to the extent possible, by the adjudicating entity to most fully reflect the original intent of the parties as reflected in the original provision. The headings in the Terms and Conditions are for convenience only and shall not be used in its interpretation.
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