USA Terms of Use

    Policies  

    These Terms of Use were last revised on: June 29, 2023  

    PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY  BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND  SERVICES AVAILABLE THROUGH THE SITE.  

    To print our Terms of Use, click here. To see our Privacy Policy, click here. To request copies of both documents by email, click here to email customer care.  

    Introduction  

    Welcome! You have arrived at a web site or mobile application that is provided by ¬†Lush Internet Inc., d/b/a Lush Fresh Handmade Cosmetics (‚ÄúLush‚ÄĚ or ‚Äúwe,‚ÄĚ ‚Äúour‚ÄĚ or ¬†‚Äúus‚ÄĚ). These Terms of Use (‚ÄúTerms‚ÄĚ) govern your use of www.lushusa.com (including, without limitation, both mobile and online versions of our site and our site ¬†store), and also applies to your use of all features, applications, content, downloads ¬†and other services that we make available through the site and/or that post a link to ¬†these Terms (collectively, referred to herein as the ‚ÄúSite‚ÄĚ). By using the Site, you ¬†acknowledge and accept the Site‚Äôs Privacy Policy and consent to the collection and ¬†use of your data in accordance with the Privacy Policy. By using the Site, you further ¬†agree that Lush may change, alter, or modify the settings or configurations on your ¬†Device (defined below) in order to allow for or optimize your use of the Site.¬†¬†

    If You Want to Use This Site,  

    then carefully read these entire Terms (including all links to details), as they  constitute a written agreement between you and us and they affect your legal rights  and obligations. Each time you access and/or use the Site (other than to simply read  these Terms), you agree to be bound by and comply with these Terms and any  Additional Terms (defined below) then posted. Therefore, do not use the Site if you  do not agree.  

    The business realities associated with operating the Site are such that, without the ¬†conditions that are set forth in these Terms -- such as your grants and waivers of ¬†rights, the limitations on our liability, your indemnity of us, and arbitration of certain ¬†disputes ‚Äď Lush would not make the Site available to you.¬†¬†

    In some instances, both these Terms and separate guidelines, rules, or terms of use ¬†or sale setting forth additional or different terms and/or conditions will apply to your use of the Site or to a service or product offered via the Site (in each such instance, ¬†and collectively ‚ÄúAdditional Terms‚ÄĚ). To the extent there is a conflict between these ¬†Terms and any Additional Terms, the Additional Terms will control unless the ¬†Additional Terms expressly state otherwise.¬†¬†

    It is important that you read and understand these entire Terms before using the ¬†Site. This table of contents further highlights some key issues and points and you ¬†can click on the headings and ‚ÄúMore‚ÄĚ links to be taken to the full explanation. ¬†

    1. Site Content, Ownership, Limited License and Rights of Others We only grant  you a limited revocable license to use the Site for your own non-commercial  use subject to rules and limitations. More on Site Content, Ownership, Limited  License and Rights of Others 

    2. Site and Content Use Restrictions Your use is subject to our rules. More on  Site and Content Use Restrictions 

    3. Opening and Terminating Accounts You may open, revise and close your  accounts. More on Opening and Terminating Accounts 

    4. Terms Applicable to Purchases If you purchase goods or services through the  Lush store, these terms apply. More on Terms Applicable to Purchases 5. Content You Submit and Community Usage Rules  

    You grant us a broad license, which we may sublicense, to the content you  submit which you represent you have the right to allow us to use. You,  however, retain ownership of and responsibility for, your content. Use of our  Site is subject to community usage rules and we have the right to manage our  Site to keep its content appropriate. More on Content You Submit and  Community Usage Rules 

    6. Procedure For Alleging Copyright Infringement  

    Users may not post content they do not own or control, and may be  suspended or terminated if they do so. Copyright owners may give us notice  of infringement by following specific instructions specifically addressed in this  section. More on Procedure For Alleging Copyright Infringement 

    7. Procedure For Alleging Infringement of Other Intellectual Property  You can also give notice of trademark and other infringements that you think  occur on the Site. More on Procedure For Alleging Infringement of Other  Intellectual Property 

    8. Notices, Questions and Customer Service  

    Click here to contact us for customer service or questions. You agree that we  may provide you notices, including notices of new terms and conditions, by  posting notice on the home page of the Site or by other reasonable means,  such as to the email you provided. More on Notices, Questions and Customer  Service

    9. Links by You to the Site  

    You may link to our Site, subject to some basic rules. More on Links by You to  the Site 

    10. Linked-To Websites; Advertisements; Dealings with Third Parties  We are not responsible for third parties or their content, advertisements, apps  or sites. More on Linked-To Websites; Advertisements; Dealings with Third  Parties 

    11. Wireless Features  

    Wireless carrier charges may apply to use of the Site via wireless networks or  Devices. More on Wireless Features 

    12. Dispute Resolution  

    You agree to arbitrate most disputes and waive jury trial and class actions.  More on Dispute Resolution 

    13. Disclaimer of Representations and Warranties  

    We disclaim most warranties and provide the Site ‚ÄúAs Is‚ÄĚ. More on Disclaimer ¬†of Representations and Warranties¬†

    14. Limitations of our Liability  

    Our liability is greatly limited. More on Limitations of our Liability 

    15. Waiver of Injunctive or Other Equitable Relief  

    You waive equitable or injunctive relief. More on Waiver of Injunctive or Other  Equitable Relief 

    16. Updates to Terms  

    These Terms and Additional Terms posted on the Site at each time of use  apply to that use, and the Terms may be prospectively updated as our Site  evolves. Posting of new terms on the Site is notice to you thereof. More on  Updates to Terms 

    17. General Provisions  

    You agree to various other terms and conditions. More on General Provisions 18. Terms Applicable For Apple iOS  

    There are some other things you should know if you are accessing or using  the Site through an Apple Device. More on Terms Applicable For Apple iOS 

    Full Details of Terms and Conditions  

    1. Site Content, Ownership, Limited License and Rights of Others 1. Content. The Site contains a variety of: (i) materials and other items¬† relating to Lush, Lush‚Äôs products and services, and similar items from¬† our licensors and other third parties, including all layout, information,¬† articles, reviews, posts, text, data, files, images, scripts, designs,¬† graphics, button icons, instructions, illustrations, photographs, audio¬†clips, music, sounds, pictures, videos, advertising copy, URLs,¬† technology, software, interactive features, the ‚Äúlook and feel‚ÄĚ of the¬† Site, and the compilation, assembly, and arrangement of the materials¬† of the Site and any and all copyrightable material (including source and¬† object code); (ii) trademarks, trade dress, logos, trade names, service¬† marks, and/or trade identities of various parties, including those of Lush¬† (collectively, ‚ÄúTrademarks‚ÄĚ); and (iii) other forms of intellectual property¬† (all of the foregoing, collectively ‚ÄúContent‚ÄĚ).¬†

    2. Ownership. The Site (including past, present and future versions) and  the Content are owned or controlled by Lush and our licensors and  certain other third parties. All right, title, and interest in and to the  Content available via the Site is the property of Lush or our licensors or  certain other third parties, and is protected by U.S. and international  copyright, trademark, trade dress, patent, or other intellectual property  and unfair competition rights and laws to the fullest extent possible.  Lush owns the copyright in the selection, compilation, assembly,  arrangement, and enhancement of the Content on the Site. 

    3. Limited License. Subject to your strict compliance with these Terms¬† and the Additional Terms, Lush grants you a limited, non-exclusive,¬† revocable, non-assignable, personal, and non-transferable license to¬† download (temporary storage only), display, view, use, play, and/or¬† print one copy of the Content (excluding source and object code in raw¬† form or otherwise, other than as made available to access and use to¬† enable display and functionality) on a personal computer, mobile phone¬† or other wireless device, or other Internet enabled device (each, a¬† ‚ÄúDevice‚ÄĚ) for your personal, non-commercial use only. The foregoing¬† limited license: (i) does not give you any ownership of, or any other¬† intellectual property interest in, any Content, and (ii) may be¬†¬†

    immediately suspended or terminated for any reason, in Lush’s sole  discretion, and without advance notice or liability. In some instances,  we may permit you to have greater access to and use of Content,  subject to certain Additional Terms. 

    4. Rights of Others. When using the Site, you must respect the intellectual  property and other rights of Lush and others. Your unauthorized use of  Content may violate copyright, trademark, privacy, publicity,  

    communications, and other laws, and any such use may result in your  personal liability, including potential criminal liability. 

    2. Site and Content Use Restrictions 

    1. Site Use Restrictions. You agree that you will not: (i) use the Site for¬† any political or commercial purpose (including, without limitation, for¬† purposes of advertising, soliciting funds, collecting product prices, and¬† selling products); (ii) use any meta tags or any other ‚Äúhidden text‚Ä̬† utilizing any Trademarks; (iii) engage in any activities through or in¬† connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd,¬† lascivious, filthy, violent, threatening, harassing, or abusive, or that¬† violate any right of any third party, or are otherwise objectionable to¬† Lush; (iv) reverse engineer, decompile, disassemble, reverse¬† assemble, or modify any Site source or object code or any software or¬† other products, services, or processes accessible through any portion¬† of the Site; (v) engage in any activity that interferes with a user‚Äôs¬† access to the Site or the proper operation of the Site, or otherwise¬† causes harm to the Site, Lush, or other users of the Site; (vi) interfere¬† with or circumvent any security feature of the Site or any feature that¬† restricts or enforces limitations on use of or access to the Site, the¬† Content, or the User-Generated Content; (vii) harvest or otherwise¬† collect or store any information (including personally identifiable¬† information about other users of the Site, including email addresses,¬† without the express consent of such users); (viii) attempt to gain¬† unauthorized access to the Site, other computer systems or networks¬† connected to the Site, through password mining or any other means; or¬† (ix) otherwise violate these Terms or any Additional Terms.¬†

    2. Content Use Restrictions. You also agree that, in using the Site: (i) you¬† will not monitor, gather, copy, or distribute the Content (except as may¬† be a result of standard search engine activity or use of a standard¬† browser) on the Site by using any robot, rover, ‚Äúbot‚ÄĚ, spider, scraper,¬† crawler, spyware, engine, device, software, extraction tool, or any other¬† automatic device, utility, or manual process of any kind; (ii) you will not¬† frame or utilize framing techniques to enclose any such Content¬† (including any images, text, or page layout); (iii) you will keep intact all¬† Trademark, copyright, and other intellectual property notices contained¬† in such Content; (iv) you will not use such Content in a manner that¬† suggests an unauthorized association with any of our or our licensors‚Äô¬† products, services, or brands; (v) you will not make any modifications¬† to such Content; (vi) you will not copy, modify, reproduce, archive, sell,¬† lease, rent, exchange, create derivative works from, publish by hard¬† copy or electronic means, publicly perform, display, disseminate,¬† distribute, broadcast, retransmit, circulate or transfer to any third party¬† or on any third-party application or website, or otherwise use or exploit¬† such Content in any way for any purpose except as specifically¬† permitted by these Terms or any Additional Terms or with the prior¬† written consent of an officer of Lush or, in the case of Content from a¬† licensor, the owner of the Content; and (vii) you will not insert any code¬† or product to manipulate such Content in any way that adversely¬† affects any user experience.¬†

    3. Availability of Site and Content. Lush may immediately suspend or  terminate the availability of the Site and Content (and any elements and features of them), in whole or in part, for any reason, in Lush’s sole  discretion, and without advance notice or liability. 

    4. Reservation of All Rights Not Granted as to Content and Site. These  Terms and any Additional Terms include only narrow, limited grants of  rights to Content and to use and access the Site. No right or license  may be construed, under any legal theory, by implication, estoppel,  industry custom, or otherwise. All rights not expressly granted to you  are reserved by Lush and its licensors and other third parties. Any  unauthorized use of any Content or the Site for any purpose is  prohibited. 

    3. Opening and Terminating Accounts  

    In order to access or use some (or potentially all) of the features on the Site,  you may be required to first register through our online registration process,  found here to register. The Site’s practices governing any resulting collection  and use of your personal information that we collect as part of account  registration are disclosed in our Privacy Policy. If you are under the age of  thirteen (13), then you are not permitted to register as a user, or otherwise  use the Site or submit personal information to us.  

    If you register for any feature that requires a password and/or username, then  you will select your own password at the time of registration (or we may send  you an email notification with a randomly generated initial password) and you  agree that: (i) You will not use a username (or e-mail address) that is already  

    being used by someone else, may impersonate another person, belongs to ¬†another person, violates the intellectual property or other right of any person ¬†or entity, or is offensive. We may reject the use of any password, username, ¬†or e-mail address for any other reason in our sole discretion; (ii) You will ¬†provide true, accurate, current, and complete registration information about ¬†yourself in connection with the registration process and, as permitted, to ¬†maintain and update it continuously and promptly to keep it accurate, current, ¬†and complete; (iii) You are solely responsible for all activities that occur under ¬†your account, password, and username ‚Äď whether or not you authorized the ¬†activity; (iv) You are solely responsible for maintaining the confidentiality of ¬†your password and for restricting access to your Device so that others may ¬†not access any password protected portion of the Site using your name, ¬†username, or password; (v) You will immediately notify us of any unauthorized ¬†use of your account, password, or username, or any other breach of security; ¬†and (vi) You will not sell, transfer, or assign your account or any account ¬†rights. ¬†

    We will not be liable for any loss or damage (of any kind and under any legal  theory) to you or any third party arising from your inability or failure for any  reason to comply with any of the foregoing obligations.  

    If any information that you provide, or if we have reasonable grounds to ¬†suspect that any information that you provide, is false, inaccurate, outdated, ¬†incomplete, or violates these Terms, any Additional Terms, or any applicable¬†law, then we may suspend or terminate your account. We also reserve the ¬†more general and broad right to terminate your account or suspend or ¬†otherwise deny you access to it or its benefits ‚Äď all in our sole discretion, for ¬†any reason, and without advance notice or liability. If you would like to close ¬†your Lush Site account, please contact us at [[email protected]]and include ¬†‚ÄúAccount Closure Request‚ÄĚ in the subject line with your full name and email ¬†address associated with your account.¬†

    4. Terms Applicable For Purchases 

    1. Generally. To purchase any products or services in the Lush online  store, you must be at least eighteen (18) years of age or the applicable  age of majority in your jurisdiction of residence or if you are a minor,  have a valid credit card where an adult has listed you as an authorized  user of their card. Prior to the purchase of any products or services,  you must provide us with a valid credit card number and associated  payment information including all of the following: (i) your name as it  appears on the card, (ii) your credit card number, (iii) the credit card  type, (iv) the date of expiration, and (v) any activation numbers or  codes needed to charge your card or otherwise use a valid gift card. By  submitting that information to us or our third party credit card  

    processor, you agree that you authorize us and/or our processor to  charge your card at our convenience but within thirty (30) days of credit  card authorization. For any product or service that you order on the  Site, you agree to pay the price applicable (including any sales taxes  and surcharges) as of the time you submit the order. Lush will  automatically bill your credit card or other form of payment submitted  as part of the order process for such price. Please note that we do not  provide price protection or refunds in the event of a price drop or  promotional offering. Also, please review our FAQ, if you have  questions about the terms applicable for purchases. 

    2. Methods of Payment, Credit Card Terms and Taxes. All payments  must be made by Visa, MasterCard, Discover or American Express,  Lush Gift Card or PayPal. We currently do not accept cash, personal or  business checks or any other payment form, although in the future we  may change this policy. Your card issuer agreement governs your use  of your designated card, and you must refer to that agreement and not  these Terms to determine your rights and liabilities as a cardholder.  You represent and warrant that you will not use any credit card or other  form of payment unless you have all necessary legal authorization to  do so. YOU, AND NOT LUSH, ARE RESPONSIBLE FOR PAYING  ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD  BY A THIRD PARTY. You agree to pay all fees and charges incurred in  connection with your purchases (including any applicable taxes) at the  rates in effect when the charges were incurred. Unless you notify Lush  of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed  accepted by you for all purposes. If Lush does not receive payment  from your credit card issuer or its agent, you agree to pay all amounts  due upon demand by Lush or its agents. Sales taxes, or other taxes,  customs, import/export charges, or similar governmental charges are  not included in the price of the products. You are responsible for paying  any such taxes or charges imposed on your purchases, including, but  not limited to, sales, use or value-added taxes. Lush shall automatically  charge and withhold the applicable tax for orders to be delivered to  addresses within and any states or localities that it deems is required in  accordance with our order policy in effect at the time of purchase. 

    3. Return Policy and Shipping Policy. All purchase transactions made  through the Site are subject to Lush’s return policy and shipping policy  in effect at the time of purchase. Lush’s current Return and Exchange  Policy can be found here and is incorporated into these Terms by  reference. Lush’s current Shipping Policy can be found here and is  incorporated into these Terms by reference. 

    4. Order Acceptance Policy. Your receipt of an electronic or other form of  order confirmation does not signify our acceptance of your order, nor  does it constitute confirmation of our offer to sell. Lush reserves the  right at any time after receipt of your order to accept or decline your  order for any reason. Lush further reserves the right any time after  receipt of your order, without prior notice to you, to supply less than the  quantity you ordered of any item. Your order will be deemed accepted  by Lush upon our delivery of products or services that you have  ordered. We may require additional verifications or information before  accepting any order. Notwithstanding the foregoing, you agree that, if  we cancel all or a portion of your order or if we provide you less than  the quantity you ordered, your sole and exclusive remedy is either that:  (a) we will issue a credit to your credit card account in the amount  charged for the cancelled portion or the quantity not provided (if your  credit card has already been charged for the order) or (b) we will not  charge your credit card for the cancelled portion of the order or the  quantity not provided. Do not assume that a cancellation or change of  an order you have placed with Lush has been effected until you receive  a confirmation from Lush via email or the Site. As stated above, you  will be responsible for, and your credit card or third-party payment  account may be charged for, the payment of all fees associated with  orders already processed or shipped before your cancellation/change  request or a request to terminate your account was received. Accepted  orders exceeding item quantities or weights considered reasonable for  normal personal use may be shipped by own arrangement via Courier,  or in person, from our distribution facility, with an agreed collection date  and time. The product and condition thereof must be accepted and signed off prior to the shipment leaving our facility. All responsibility  including product damage, shipping errors become that of the  purchaser at the time it leaves our facility.  

    This Site is provided solely for retail customers. The Site shall not be  used to purchase products for re-sale or export. You represent and  warrant that by placing an order via the Site that you are not a reseller,  dealer, exporter, or distributor who resells the products offered by us.  Site does not accept orders from any reseller, dealer, exporter, or  distributor who resells our products. Site reserves the right to  immediately bar access to the Site and terminate the account of any  user who violates this provision.  

    View our Bulk Buying Policy. 

    5. No Responsibility to Sell Mispriced Products or Services. We do our  best to describe every item, product or service offered on this Site as  accurately as possible. However, we are human, and therefore we do  not warrant that specifications or pricing on the Site is complete,  accurate, reliable, current, or error-free. In the event of any errors  relating to the pricing or specifications of any item, product or service,  Lush shall have the right to refuse or cancel any orders in its sole  discretion. If we charged your credit card or other account prior to  cancellation, we will issue a credit to your credit card account in the  amount of the charge. Additional terms may apply. If a product you  purchased from Lush is not as described, your sole remedy is to return  it in unused condition, complete and undamaged, in the original  packaging, and we will issue a credit to your credit card account. 

    6. Modifications to Prices or Billing Terms. The purchase of products and  services on the Site is subject to availability. PRODUCTS AND  SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT  ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT  ANY TIME. LUSH RESERVES THE RIGHT, AT ANY TIME, TO  CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES  SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE  OR BY E-MAIL DELIVERY TO YOU. 

    5. Content You Submit and Community Usage Rules 

    1. User-Generated Content. 

    1. General. Lush may now or in the future offer users of the Site the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site (collectively, ‚Äúsubmit‚ÄĚ) messages, chat messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, ‚ÄúUser-Generated Content‚ÄĚ). Lush may allow you to do this through forums, blogs, message boards, social networking environments, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.

    2. Non-Confidentiality of Your User-Generated Content. Except as¬† otherwise described in the Site‚Äôs posted Privacy Policy or any¬† Additional Terms, you agree that: (a) your User-Generated¬† Content will be treated as non-confidential ‚Äď regardless of¬† whether you mark them ‚Äúconfidential,‚ÄĚ ‚Äúproprietary,‚ÄĚ or the like ‚Äst and will not be returned; and (b) Lush does not assume any¬† obligation of any kind to you or any third party with respect to¬† your User-Generated Content. Upon Lush‚Äôs request, you will¬† furnish us with any documentation necessary to substantiate the¬† rights to such content and to verify your compliance with these¬† Terms or any Additional Terms. You acknowledge that the¬† Internet and mobile communications may be subject to breaches¬† of security and that you are aware that submissions of User Generated Content may not be secure, and you will consider¬† this before submitting any User-Generated Content and do so at¬† your own risk. In your communications with Lush, please keep in¬† mind that we do not seek any unsolicited ideas or materials for¬† products or Sites, or even suggested improvements to products¬† or services, including, without limitation, ideas, concepts,¬† inventions, or designs for music, websites, apps, books, scripts,¬† screenplays, motion pictures, television shows, theatrical¬† productions, software or otherwise (collectively, ‚ÄúUnsolicited¬† Ideas and Materials‚ÄĚ). Any Unsolicited Ideas and Materials you¬† post on or send to us via the Site are deemed User-Generated¬† Content and licensed to us as set forth below. In addition, Lush¬† retains all of the rights held by members of the general public¬† with regard to your Unsolicited Ideas and Materials. Lush‚Äôs¬† receipt of your Unsolicited Ideas and Materials is not an¬† admission by Lush of their novelty, priority, or originality, and it¬† does not impair Lush‚Äôs right to contest existing or future¬† intellectual property rights relating to your Unsolicited Ideas and¬† Materials.¬†

    3. License to Lush of Your User-Generated Content. Except as  otherwise described in any applicable Additional Terms (such as  a contest official rules), which specifically govern the submission  of your User-Generated Content, you grant to Lush the non exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use,  copy, record, distribute, reproduce, disclose, sell, re-sell,  sublicense (through multiple levels), display, publicly perform,  transmit, publish, broadcast, translate, make derivative works of,  and otherwise use and exploit in any manner whatsoever, all or  any portion of your User-Generated Content (and derivative  works thereof), for any purpose whatsoever in all formats, on or  through any means or medium now known or hereafter  developed, and with any technology or devices now known or  hereafter developed, and to advertise, market, and promote the  same. Without limitation, the granted rights include the right to:  (a) configure, host, index, cache, archive, store, digitize,  compress, optimize, modify, reformat, edit, adapt, publish in  searchable format, and remove such User-Generated Content  and combine same with other materials, and (b) use any ideas,  concepts, know-how, or techniques contained in any User Generated Content for any purposes whatsoever, including  developing, producing, and marketing products and/or Sites.  You understand that in exercising such rights metadata, notices  and content may be removed or altered, including copyright  management information, and you consent thereto and  represent and warrant you have all necessary authority to do so.  In order to further effect the rights and license that you grant to  Lush to your User-Generated Content, you also hereby grant to  Lush, and agree to grant to Lush, the unconditional, perpetual,  irrevocable right to use and exploit your name, persona, and  likeness in connection with any User-Generated Content,  without any obligation or remuneration to you. Except as  prohibited by law, you hereby waive, and you agree to waive,  any moral rights (including attribution and integrity) that you may  have in any User-Generated Content, even if it is altered or  changed in a manner not agreeable to you. To the extent not  waivable, you irrevocably agree not to exercise such rights (if  any) in a manner that interferes with any exercise of the granted  rights. You understand that you will not receive any fees, sums,  consideration, or remuneration for any of the rights granted in  this Section 5(A)(iii). 

    4. Exclusive Right to Manage Our Site. Lush may, but will not have  any obligation to, review, monitor, display, post, store, maintain,  accept, or otherwise make use of, any of your User-Generated  Content, and Lush may, in its sole discretion, reject, delete,  move, re-format, remove or refuse to post or otherwise make  use of User-Generated Content without notice or any liability to  you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without  limitation, we may do so to address content that comes to our  attention that we believe is offensive, obscene, lewd, lascivious,  filthy, violent, harassing, threatening, abusive, illegal or  

    otherwise objectionable or inappropriate, or to enforce the rights  of third parties or these Terms or any applicable Additional  Terms, including, without limitation, the content restrictions set  forth below in the Rules (defined in Section 5(B). Such User Generated Content submitted by you or others need not be  maintained on the Site by us for any period of time and you will  not have the right, once submitted, to access, archive, maintain,  or otherwise use such User-Generated Content on the Site or  elsewhere. 

    5. Representations and Warranties Related to Your User Generated Content. Each time you submit any User-Generated  Content, you represent and warrant that you are at least the age  of majority in the jurisdiction in which you reside or are the  parent or legal guardian, or have all proper consents from the  parent or legal guardian, of any minor who is depicted in or  contributed to any User-Generated Content you submit, and  that, as to that User-Generated Content: (a) you are the sole  author and owner of the intellectual property and other rights to  the User-Generated Content, or you have a lawful right to  submit the User-Generated Content and grant Lush the rights to  it that you are granting by these Terms and any Additional  Terms, all without any Lush obligation to obtain consent of any  third party and without creating any obligation or liability of Lush;  (b) the User-Generated Content is accurate; (c) the User Generated Content does not and, as to Lush’s permitted uses  and exploitation set forth in these Terms, will not infringe any  intellectual property or other right of any third party; and (d) the  User-Generated Content will not violate these Terms (including  the Rules) or any Additional Terms, or cause injury or harm to  any person. 

    6. Enforcement. Lush has no obligation to monitor or enforce your  intellectual property rights to your User-Generated Content, but  you grant us the right to protect and enforce our rights to your  User-Generated Content, including by bringing and controlling  actions in your name and on your behalf (at Lush’s cost and  expense, to which you hereby consent and irrevocably appoint  Lush as your attorney-in-fact, with the power of substitution and  delegation, which appointment is coupled with an interest). 

    2. Community Usage Rules. As a user of the Site, these Community¬† Usage Rules (‚ÄúRules‚ÄĚ) are here to help you understand the conduct that is expected of members of the Site‚Äôs online communities¬† (‚ÄúCommunities‚ÄĚ).¬†

    1. Nature of Rules. Your participation in the Communities is subject  to all of the Terms, including these Rules: If you submit User Generated Content that Lush reasonably believes violates these  Rules, then we may take any legally available action that we  deem appropriate, in our sole discretion. However, we are not  obligated to take any action not required by law. We may  require, at any time, proof of the permissions referred to above  in a form acceptable to us. Failure to provide such proof may  lead to, among other things, the User-Generated Content in  question being removed from the Site. Your User-Generated Content. All of your User Generated Content either must be original with you or  you must have all necessary rights in it from third parties  in order to permit you to comply with these Terms and  any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or  

    trademarks that belong to third parties. Do not use any  User-Generated Content that belongs to other people and  pass it off as your own; this includes any content that you  might have found elsewhere on the Internet. If anyone  contributes to your User-Generated Content or has any  rights to your User-Generated Content, or if anyone  

    appears or is referred to in the User-Generated Content,  then you must also have their permission to submit such  User-Generated Content to Lush. (For example, if  

    someone has taken a picture of you and your friend, and  you submit that photo to Lush as your User-Generated  Content, then you must obtain your friend’s and the photographer’s permission to do so.) 

    ‚Ė† Speaking of Photos: No Pictures, Videos, or Images of¬† Anyone Other Than You and Your Friends and Family. If¬† you choose to submit photos to the Site, link to¬†¬†

    embedded videos, or include other images of real people,¬† then make sure they are of you or of you and someone¬† you know ‚Äď and only if you have their express permission¬† to submit it.¬†

    ‚Ė† Act Appropriately. All of your Site activities must be venue¬† appropriate, as determined by us. Be respectful of others‚Äô¬† opinions and comments so we can continue to build¬†Communities for everyone to enjoy. If you think your¬†¬†

    User-Generated Content might offend someone or be  embarrassing to someone, then chances are it probably will and it doesn’t belong on the Site. Cursing, harassing,  stalking, insulting comments, personal attacks, gossip,  and similar actions are prohibited. Your User-Generated  Content must not threaten, abuse, or harm others, and it  must not include any negative comments that are  connected to race, national origin, gender, sexual  orientation, or physical handicap. Your User-Generated  Content must not be defamatory, slanderous, indecent,  obscene, pornographic, or sexually explicit. 

    ‚Ė† Do Not Use for Commercial or Political Purposes. Your¬† User-Generated Content must not advertise or promote a¬† product or Site or other commercial activity, or a¬† politician, public servant, or law.¬†

    ‚Ė† Do Not Use for Inappropriate Purposes. Your User Generated Content must not promote any infringing,¬† illegal, or other similarly inappropriate activity.¬†

    ‚Ė† Be Honest and Do Not Misrepresent Yourself or Your¬† User-Generated Content. Do not impersonate any other¬† person, user, or company, and do not submit User Generated Content that you believe may be false,¬† fraudulent, deceptive, inaccurate, or misleading, or that¬† misrepresents your identity or affiliation with a person or¬† company.¬†

    ‚Ė† Others Can See. We hope that you will use the¬† Communities to exchange information and content and¬† have venue appropriate discussions with other members.¬† However, please remember that the Communities are¬† public or semi-public and User-Generated Content that¬† you submit on the Site within a Community may be¬† accessible and viewable by other users. Do not submit¬† personally identifying information (e.g., first and last name¬† together, password, phone number, address, credit card¬† number, medical information, e-mail address, or other¬† personally identifiable information or contact information)¬† on Community spaces and take care when disclosing this¬† type of information to others.¬†

    ‚Ė† Don‚Äôt Share Other Peoples‚Äô Personal Information. Your¬† User-Generated Content should not reveal another¬† person‚Äôs address, phone number, e-mail address, social¬† security number, credit card number, medical information,¬† financial information, or any other information that may be¬† used to track, contact, or impersonate that individual,¬† unless, and in the form and by the method, specifically¬† requested by Lush. Don‚Äôt Damage the Site or Anyone‚Äôs Computers or Other¬†Devices. Your User-Generated Content must not submit¬†viruses, Trojan horses, spyware, or any other¬†technologies or malicious code that could impact the¬†operation of the Site or any computer or other Device.¬†

    2. Your Interactions With Other Users; Disputes. You are solely  responsible for your interaction with other users of the Site,  

    whether online or offline. We are not responsible or liable for the  conduct or content of any user. We reserve the right, but have  no obligation, to monitor or become involved in disputes  

    between you and other users. Exercise common sense and your  best judgment in your interactions with others (e.g., when you  submit any personal or other information) and in all of your other  online activities. 

    3. Alerting Us of Violations. If you discover any content that violates these  Terms, then you may report it to us here. For alleged infringements of  intellectual property rights, see Sections 6 and 7, below. 

    6. Procedure For Alleging Copyright Infringement 

    1. DMCA Notice. Lush will respond appropriately to notices of alleged¬† copyright infringement that comply with the U.S. Digital Millennium¬† Copyright Act (‚ÄúDMCA‚ÄĚ), as set forth below. If you own a copyright in a¬† work (or represent such a copyright owner) and believe that your (or¬† such owner‚Äôs) copyright in that work has been infringed by an improper¬† posting or distribution of it via the Site, then you may send us a written¬† notice that includes all of the following:¬†¬†

    Lush will only respond to DMCA Notices that it receives by mail, email  or facsimile at the addresses below:  

    By Mail: Lush Fresh Handmade Cosmetics, 8680 Cambie Street,  Vancouver BC V6M 6P9 (Attn: Legal Dept.)  

    By email: [email protected]¬†¬†

    By Facsimile: 604 301 2749  

    It is often difficult to determine if your copyright has been infringed.  Lush may elect to not respond to DMCA Notices that do not  

    substantially comply with all of the foregoing requirements, and Lush  may elect to remove allegedly infringing material that comes to its  attention via notices that do not substantially comply with the DMCA.  Please note that the DMCA provides that any person who knowingly  materially misrepresents that material or activity is infringing may be  subject to liability.  

    We may send the information that you provide in your notice to the  person who provided the allegedly infringing work. That person may  elect to send us a DMCA Counter-Notification.  

    Without limiting Lush’s other rights, Lush may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and  any other website owned or operated by Lush. See Section 3, above. 1. a legend or subject line that says: “DMCA Copyright  

    Infringement Notice‚ÄĚ;¬†

    2. a description of the copyrighted work that you claim has been  infringed or, if multiple copyrighted works are covered by a  single notification, a representative list of such works; 

    3. a description of where the material that you claim is infringing or  is the subject of infringing activity is located that is reasonably  sufficient to permit us to locate the material (please include the  URL of the Site on which the material appears); 

    4. your full name, address, telephone number and email address; 5. a statement by you that you have 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; 

    6. a statement by you, made under penalty of perjury, that all the  information in your notice is accurate, and that you are the  copyright owner (or, if you are not the copyright owner, then  your statement must indicate that you are authorized to act on  the behalf of the owner of an exclusive right that is allegedly  infringed); and 

    7. your electronic or physical signature. 

    2. Counter-Notification. If access on the Site to a work that you submitted  to Lush is disabled or the work is removed as a result of a DMCA  Notice, and if you believe that the disabled access or removal is the  result of mistake or misidentification, then you may send us a DMCA  Counter-Notification to the addresses above. Your DMCA Counter Notification should contain the following information:  

    Please note that the DMCA provides that any person who knowingly  materially misrepresents that material or activity was removed or  disabled by mistake or misidentification may be subject to liability.  If we receive a DMCA Counter-Notification, then we may replace the  material that we removed (or stop disabling access to it) in not less  than ten (10) and not more than fourteen (14) business days following  receipt of the DMCA Counter-Notification. However, we will not do this  if we first receive notice at the addresses above that the party who sent  us the DMCA Copyright Infringement Notice has filed a lawsuit asking  a court for an order restraining the person who provided the material  from engaging in infringing activity relating to the material on the Site.  You should also be aware that we may forward the Counter-Notification  to the party who sent us the DMCA Copyright Infringement Notice. 

    1. a legend or subject line that says: ‚ÄúDMCA Counter-Notification‚ÄĚ; 2. a description of the material that has been removed or to which¬† access has been disabled and the location at which the material¬†appeared before it was removed or access to it was disabled¬†¬†

    (please include the URL of the Site from which the material was  removed or access to it disabled); 

    3. a statement under penalty of perjury that you have a good faith  belief that the material was removed or disabled as a result of  mistake or misidentification of the material to be removed or  

    disabled; 

    4. your full name, address, telephone number, e-mail address, and  the username of your account; 

    5. a statement that you consent to the jurisdiction of the Federal  District Court for the judicial district in which your address is  

    located (or, if the address is located outside the U.S.A., to the  jurisdiction of the United States District Court for the Central District of California), and that you will accept Site of process from the person who provided DMCA notification to us or an agent of such person; and 

    6. your electronic or physical signature. 

    7. Procedure For Alleging Infringement of Other Intellectual Property  If you own intellectual property other than copyrights and believe that your  intellectual property has been infringed by an improper posting or distribution  of it via the Site, then you may send us a written notice to the addresses set  forth above that includes all of the following:  

    We will act on such notices in our sole discretion. Any user of the Site that  fails to respond satisfactorily to Lush with regard to any such notice is subject  to suspension or termination. We may send the information that you provide in  your notice to the person who provided the allegedly infringing material. 

    1. a legend or subject line that says: ‚ÄúIntellectual Property Infringement¬† Notice‚ÄĚ;¬†

    2. a description of the intellectual property that you claim has been  infringed; 

    3. a description of where the material that you claim is infringing or is the  subject of infringing activity is located that is reasonably sufficient to  permit us to locate the material (please include the URL of the Site on  which the material appears); 

    4. your full name, address, telephone number and email address; 5. a statement by you that you have a good faith belief that use of the  material in the manner complained of is not authorized by the owner of  the intellectual property, its agent, or the law; 

    6. a statement by you, made under penalty of perjury, that all the  information in your notice is accurate, and that you are the owner of the  intellectual property at issue (or, if you are not the owner, then your  statement must indicate that you are authorized to act on the behalf of  the owner of the intellectual property that is allegedly infringed); and 7. your electronic or physical signature.

    8. Notices, Questions and Customer Service  

    You agree that: (i) we may give you notices of new, revised or changed terms  and other important matters by prominently posting notice on the home page  of the Site, or in another reasonable manner; and (ii) we may contact you by  mail or email sent to the address provided by you. You agree to promptly  notify us if you change your email or mailing address by updating your  account information.  

    If you have a question regarding using the Site, you may contact us here. You  acknowledge that the provision of customer support is at Lush’s sole  discretion and that we have no obligation to provide you with customer  support of any kind. 

    9. Links by You to the Site  

    We grant you a limited, non-exclusive, revocable, non-assignable, personal,  and non-transferable license to create hyperlinks to the Site, so long as: (a)  the links only incorporate text, and do not use any Trademarks; (b) the links  

    and the content on your website do not suggest any affiliation with Lush or  cause any other confusion; and (c) the links and the content on your website  do not portray Lush or its products or services in a false, misleading,  derogatory, or otherwise offensive matter, and do not contain content that is  unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening,  harassing, or abusive, or that violate any right of any third party or are  otherwise objectionable to Lush. Lush reserves the right to suspend or  prohibit linking to the Site for any reason, in its sole discretion, without  advance notice or any liability of any kind to you or any third party. 

    10. Linked-To Websites; Advertisements; Dealings with Third Parties 1. Linked Sites; Advertisements. The Site may contain links, as part of¬† third-party ads on the Site or otherwise, to or from third-party websites¬† (‚ÄúLinked Sites‚ÄĚ), including websites operated by advertisers, licensors,¬† licensees, and certain other third parties who may have business¬† relationships with Lush. Lush may have no control over the content,¬† operations, policies, terms, or other elements of Linked Sites, and Lush¬† does not assume any obligation to review any Linked Sites. Lush does¬† not endorse, approve, or sponsor any Linked Sites, or any third-party¬† content, advertising, information, materials, products, services, or other¬† items. Furthermore, Lush is not responsible for the quality or delivery of¬† the products or services offered, accessed, obtained by or advertised¬† at such sites. Finally, Lush will under no circumstances be liable for¬† any direct, indirect, incidental or special loss or other damage, whether¬† arising from negligence, breach of contract, defamation, infringement of¬† copyright or other intellectual property rights, caused by the exhibition,¬† distribution or exploitation of any information or content contained¬† within these third-party Linked Sites. Any activities you engage in¬† connection with any of the same are subject to the privacy and other¬† policies, terms and conditions of use and/or sale, and rules issued by¬†the operator of the Linked Sites. Lush disclaims all liability in¬†connection therewith.¬†

    2. Dealings with Third Parties. Any interactions, correspondence,  transactions, and other dealings that you have with any third parties  found on or through the Site (including on or via Linked Sites or  advertisements) are solely between you and the third party (including  issues related to the content of third-party advertisements, payments,  delivery of goods, warranties (including product warranties), privacy  and data security, and the like). Lush disclaims all liability in connection  therewith. 

    11. Wireless 

    1. Wireless Features. The Site may offer certain features and services¬† that are available to you via your wireless Device. These features and¬† services may include the ability to access the Site‚Äôs features and¬† upload content to the Site, receive messages from the Site, and¬† download applications to your wireless Device (collectively, ‚ÄúWireless¬† Features‚ÄĚ). Standard messaging, data, and other fees may be charged¬† by your carrier to participate in Wireless Features. Fees and charges¬† may appear on your wireless bill or be deducted from your pre-paid¬† balance. Your carrier may prohibit or restrict certain Wireless Features¬† and certain Wireless Features may be incompatible with your carrier or¬† wireless Device. You should check with your carrier to find out what¬† plans are available and how much they cost. Contact your carrier with¬† questions regarding these issues.¬†

    2. Terms of Wireless Features. You agree that as to the Wireless  Features for which you are registered for, we may send  

    communications to your wireless Device regarding us or other parties.  Further, we may collect information related to your use of the Wireless  Features. If you have registered via the Site for Wireless Features,  then you agree to notify Lush of any changes to your wireless contact  information (including phone number) and update your accounts on the  Site to reflect the changes. 

    12. Dispute Resolution  

    Certain portions of this Section 12 are deemed to be a ‚Äúwritten agreement to ¬†arbitrate‚ÄĚ pursuant to the Federal Arbitration Act. You and Lush agree that we ¬†intend that this Section 12 satisfies the ‚Äúwriting‚ÄĚ requirement of the Federal ¬†Arbitration Act. This Section 12 can only be amended by mutual agreement.¬†

    1. First ‚Äď Try to Resolve Disputes and Excluded Disputes. If any¬† controversy, allegation, or claim arises out of or relates to the Site, the¬† Content, your User-Generated Content, these Terms, or any Additional¬† Terms, whether heretofore or hereafter arising (collectively, ‚ÄúDispute‚ÄĚ),¬† or to any of Lush‚Äôs actual or alleged intellectual property rights (an¬† ‚ÄúExcluded Dispute‚ÄĚ, which includes those actions set forth in Section¬† 12(D), then you and we agree to send a written notice to the other¬†providing a reasonable description of the Dispute or Excluded Dispute,¬† along with a proposed resolution of it. Our notice to you will be sent to¬† you based on the most recent contact information that you provide us.¬†¬†

    But if no such contact information exists or if such information is not  current, then we have no obligation under this Section 12(A). Your  notice to us must be sent to: Lush Fresh Handmade Cosmetics, 8680  Cambie Street, Vancouver BC V6M 6P9 (Attn: Legal Department). For  a period of sixty (60) days from the date of receipt of notice from the  other party, Lush and you will engage in a dialogue in order to attempt  to resolve the Dispute or Excluded Dispute, though nothing will require  either you or Lush to resolve the Dispute or Excluded Dispute on terms  with respect to which you and Lush, in each of our sole discretion, are  not comfortable. 

    2. Binding Arbitration. If we cannot resolve a Dispute as set forth in¬† Section 12(A) (or agree to arbitration in writing with respect to an¬† Excluded Dispute) within sixty (60) days of receipt of the notice, then¬† ANY AND ALL DISPUTES ARISING BETWEEN YOU AND LUSH¬† MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS¬† INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT,¬† SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR¬† USE OF THE SITE (WHETHER BASED IN CONTRACT, STATUTE,¬† REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT¬† LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL¬† TORT OR COMMON LAW, CONSTITUTIONAL PROVISION,¬† RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR¬† EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR¬† AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal¬† Arbitration Act (‚ÄúFAA‚ÄĚ) shall govern the arbitrability of all disputes¬† between Lush and you regarding these Terms (and any Additional¬† Terms) and the Site, including the No Class Action Matters section¬† below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP¬† ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD¬† BY A JUDGE OR JURY. Lush and you agree, however, that the State¬† of California or federal law shall apply to and govern, as appropriate,¬† any and all claims or causes of action, remedies, and damages arising¬† between you and Lush regarding these Terms and the Site, whether¬† arising or stated in contract, statute, common law, or any other legal¬† theory, without regard to the State of California‚Äôs choice of law¬† principles.¬†¬†

    A Dispute will be resolved solely by binding arbitration in accordance¬† with the then-current Commercial Arbitration Rules (‚ÄúRules‚ÄĚ) of the¬† American Arbitration Association (‚ÄúAAA‚ÄĚ), except as modified herein,¬† and in accordance with the AAA‚Äôs Supplementary Procedures for¬† Consumer Related Disputes. The arbitration will be administered by the¬†AAA. If an in-person arbitration hearing is required, then it will be¬† conducted in the ‚Äúmetropolitan statistical area‚ÄĚ (as defined by the U.S.¬† Census Bureau) where you are a resident at the time the Dispute is¬† submitted to arbitration. You and we will pay the administrative and¬† arbitrator‚Äôs fees and other costs in accordance with the applicable¬† arbitration rules; but if applicable arbitration rules or laws require Lush¬† to pay a greater portion or all of such fees and costs in order for this¬† Section 12 to be enforceable, then Lush will have the right to elect to¬† pay the fees and costs and proceed to arbitration. The arbitrator will¬† apply and be bound by these Terms and any Additional Terms, and will¬† determine any Dispute according to applicable law and facts based¬† upon the record and no other basis, and will issue a reasoned award¬† only in favor of the individual party seeking relief and only to the extent¬† to provide relief warranted by that party‚Äôs individual claim. Issues¬† relating to the enforceability of the arbitration and class action waiver¬† provisions contained herein are for the court to decide. This arbitration¬† provision shall survive termination of these Terms or the Site. You can¬† obtain AAA procedures, rules, and fee information as follows:¬† 800.778.7879 and http://www.adr.org.¬†

    3. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED  BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A  DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE  OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY  OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN  ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE  FOREVER BARRED. Commencing means, as applicable (a) by  delivery of written notice as set forth above in Section 12(A); (b) filing  for arbitration with the AAA as set forth in Section 12(B); or (c) filing an  action in state or Federal court. The parties expressly waive any  contrary statute of limitations or time bars, both legal and equitable, to  the Disputes. 

    4. Injunctive Relief. The foregoing provisions of this Section 12 will not  apply to any legal action taken by Lush to seek an injunction or other  equitable relief in connection with, any loss, cost, or damage (or any  potential loss, cost, or damage) relating to the Site, any Content, your  User-Generated Content and/or Lush’s intellectual property rights  (including such Lush may claim that may be in dispute), Lush’s  operations, and/or Lush’s products or services. 

    5. No Class Action Matters. YOU AND LUSH AGREE 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 OR AS AN ASSOCIATION. Disputes will be arbitrated¬† only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or¬† controversy of any other party. There shall be no right or authority for¬† any Dispute to be arbitrated on a class action basis or on any basis¬† involving Disputes brought in a purported representative capacity on¬† behalf of the general public, or other persons or entities similarly¬† situated. But if, for any reason, any court with competent jurisdiction¬† holds that this restriction is unconscionable or unenforceable, then our¬† agreement in Section 12(B) to arbitrate will not apply and the Dispute¬† must be brought exclusively in court pursuant to Section 12(F).¬† Notwithstanding any other provision of this Section 12, any and all¬† issues relating to the scope, interpretation and enforceability of the¬† class action waiver provisions contained herein (described in this ‚ÄúNo¬† Class Action Matters‚ÄĚ section), are to be decided only by a court of¬† competent jurisdiction, and not by the arbitrator. The arbitrator does not¬† have the power to vary these class action waiver provisions.¬†

    6. Federal and State Courts in Los Angeles County, California. Except  where arbitration is required above, small claims actions, or with  respect to the enforcement of any arbitration decision or award, any  action or proceeding relating to any Dispute or Excluded Dispute  arising hereunder may only be instituted in state or Federal court in Los  Angeles County, California. Accordingly, you and Lush consent to the  exclusive personal jurisdiction and venue of such courts for such  matters. 

    7. Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim  of Disputes (but not Excluded Disputes) in small claims court of  competent jurisdiction. 

    13. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES ¬†YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK. THE ¬†SITE IS PROVIDED ON AN ‚ÄúAS IS‚ÄĚ, ‚ÄúAS AVAILABLE‚ÄĚ, AND ‚ÄúWITH ALL ¬†FAULTS‚ÄĚ BASIS. Therefore, to the fullest extent permissible by law, Lush and ¬†its subsidiaries and each of their respective employees, directors, members, ¬†managers, shareholders, agents, vendors, licensors, licensees, contractors, ¬†customers, successors, and assigns (collectively, the ‚ÄúLush Parties‚ÄĚ) hereby ¬†disclaim and make no representations, warranties, endorsements, or ¬†promises, express or implied, as to: ¬†

    EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN  ADDITIONAL TERMS PROVIDED BY A LUSH PARTY, LUSH PARTIES  HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR  IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR  MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD  PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM  INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

    Some jurisdictions limit or do not allow the disclaimer of implied or other  warranties so the above disclaimers may not apply to the extent such  jurisdictions’ laws are applicable. 

    1. the Site (including the Content and the User-Generated Content); 2. the functions, features, or any other elements on, or made accessible  through, the Site; 

    3. any products, services, or instructions offered or referenced at or linked  through the Site; 

    4. security associated with the transmission of your User-Generated  Content transmitted to Lush via the Site; 

    5. whether the Site or the servers that make the Site available are free  from any harmful components (including viruses, Trojan horses, and  other technologies that could adversely impact your Device); 

    6. whether the information (including any instructions) on the Site is  accurate, complete, correct, adequate, useful, timely, or reliable; 7. whether any defects to or errors on the Site will be repaired or  corrected; 

    8. whether your access to the Site will be uninterrupted; 

    9. whether the Site will be available at any particular time or location; and 10. whether your use of the Site is lawful in any particular jurisdiction. 14. LIMITATIONS OF OUR LIABILITY  

    UNDER NO CIRCUMSTANCES WILL ANY LUSH PARTIES BE  RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND,  including personal injury or death or for any direct, indirect, economic,  exemplary, special, punitive, incidental, or consequential losses or damages  that are directly or indirectly related to:  

    The foregoing limitations of liability will apply even if any of the foregoing  events or circumstances were foreseeable and even if Lush Parties were  advised of or should have known of the possibility of such losses or damages,  regardless of whether you bring an action based in contract, negligence, strict  liability, or tort (including whether caused, in whole or in part, by negligence,  acts of god, telecommunications failure, or destruction of the Site).  Some jurisdictions do not allow the exclusion or limitation of incidental or  consequential damages of the sort that are described above, so the above  limitation or exclusion may not apply to you.  

    EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE  FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT  WILL LUSH PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE  DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH  YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER  THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU  HAVE PAID LUSH IN CONNECTION WITH THE TRANSACTION(S) THAT  UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION  FINDS SUCH TO BE UNCONSCIONABLE. 

    1. the Site (including the Content and the User-Generated Content); 2. your use of or inability to use the Site, or the performance of the Site; 3. any action taken in connection with an investigation by Lush Parties or  

    law enforcement authorities regarding your access to or use of the Site; 4. any action taken in connection with copyright or other intellectual  property owners or other rights owners; 

    5. any errors or omissions in the Site’s technical operation; or 6. any damage to any user’s computer, hardware, software, modem, or  other equipment or technology, including damage from any security  breach or from any virus, bugs, tampering, fraud, error, omission,  interruption, defect, delay in operation or transmission, computer line,  or network failure or any other technical or other malfunction, including  losses or damages in the form of lost profits, loss of goodwill, loss of  data, work stoppage, accuracy of results, or equipment failure or  malfunction. 

    15. Waiver of Injunctive or Other Equitable Relief  

    IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR  INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE  LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR  SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER  EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION  WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT  YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER  ACTION THAT MAY INTERFERE WITH OR PREVENT THE  DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION,  CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR  INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR  CONTROLLED BY LUSH (INCLUDING YOUR LICENSED USER GENERATED CONTENT) OR A LICENSOR OF LUSH. 

    16. Updates to Terms  

    These Terms (or if applicable Additional Terms), in the form posted at the time  of your use of the applicable services to which it applies, shall govern such  use (including transactions entered during such use). AS OUR SITE  EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER  THE SITE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE  OFFERING THE SITE UNDER THE TERMS OR ADDITIONAL TERMS FOR  WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH  TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE  ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN  APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE  MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITE  (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE  CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER  TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you  should review the posted terms of service and any applicable Additional  Terms each time you use the Site (at least prior to each transaction or  submission). The new terms will be effective as to new use and transactions  as of the time that we post them, or such later date as may be specified in  them or in other notice to you. However, the terms of service (and any  applicable Additional Terms) that applied when you previously used the Site  will continue to apply to such prior use (i.e., changes and additions are  prospective only) unless mutually agreed. In the event any notice to you of  new, revised or additional terms is determined by a tribunal to be insufficient,  the prior agreement shall continue until sufficient notice to establish a new  agreement occurs. You should frequently check the home page, your account  and the email you associated with your account for notices, all of which you  agree are reasonable manners of providing you notice. You can reject any  new, revised or Additional Terms by discontinuing use of the Site and related  services. 

    17. General Provisions 

    1. Lush‚Äôs Consent or Approval. As to any provision in these Terms or any¬† Additional Terms that grants Lush a right of consent or approval, or¬† permits Lush to exercise a right in its ‚Äúsole discretion,‚ÄĚ Lush may¬† exercise that right in its sole and absolute discretion. No Lush consent¬† or approval may be deemed to have been granted by Lush without¬† being in writing and signed by an officer of Lush.¬†

    2. Applicable Law. These Terms and any Additional Terms will be  governed by and construed in accordance with, and any Dispute and  Excluded Dispute will be resolved in accordance with, the laws of the  State of California, without regard to its conflicts of law provisions. 

    3. Indemnity. You agree to, and you hereby, defend, indemnify, and hold  Lush Parties harmless from and against any and all claims, damages,  losses, costs, investigations, liabilities, judgments, fines, penalties,  settlements, interest, and expenses (including attorneys’ fees) that  directly or indirectly arise from or are related to any claim, suit, action,  demand, or proceeding made or brought against any Lush Party, or on  account of the investigation, defense, or settlement thereof, arising out  of or in connection with, whether occurring heretofore or hereafter: (i)  your User-Generated Content; (ii) your use of the Site and your  activities in connection with the Site; (iii) your breach or alleged breach  of these Terms or any Additional Terms; (iv) your violation or alleged  violation of any laws, rules, regulations, codes, statutes, ordinances, or  orders of any governmental or quasi-governmental authorities in  connection with your use of the Site or your activities in connection with  the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates  any copyright, trademark, trade secret, trade dress, patent, publicity,  privacy, or other right of any person or entity; (vi) any  

    misrepresentation made by you; and (vii) Lush Parties‚Äô use of the¬† information that you submit to us (including your User-Generated¬† Content) (all of the foregoing, ‚ÄúClaims and Losses‚ÄĚ). You will cooperate¬† as fully required by Lush Parties in the defense of any Claim and¬† Losses. Notwithstanding the foregoing, Lush Parties retain the¬† exclusive right to settle, compromise, and pay any and all Claims and¬† Losses. Lush Parties reserve the right to assume the exclusive defense¬† and control of any Claims and Losses. You will not settle any Claims¬† and Losses without, in each instance, the prior written consent of an¬† officer of a Lush Party.¬†

    4. Operation of Site; Availability of Products and Services; International  Issues. Lush controls and operates the Site from its U.S.-based offices  in the U.S.A., and Lush makes no representation that the Site is  appropriate or available for use beyond the U.S.A. If you use the Site  from other locations, you are doing so on your own initiative and are  responsible for compliance with applicable local laws regarding your  online conduct and acceptable content, if and to the extent local laws  apply. The Site may describe products and services that are available  only in the U.S.A. (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the Site and/or the  provision of any content, program, product, service, or other feature  described or available on the Site to any person, entity, geographic  area, or jurisdiction, at any time and in our sole discretion, and to limit  the quantities of any content, program, product, service, or other  feature that we provide. You and we disclaim any application to these  Terms of the Convention on Contracts for the International Sale of  Goods. 

    5. Export Controls. Software related to or made available by the Site may¬† be subject to export controls of the U.S.A. No software from the Site¬† may be downloaded, exported, or re-exported: (i) into (or to a national¬† or resident of) any country or other jurisdiction to which the U.S.A. has¬† embargoed goods, software, technology or services (which, as of the¬† effective date of these Terms, includes Cuba, North Korea, Iran,¬† Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department‚Äôs¬† list of Specially Designated Nationals or the U.S. Commerce¬† Department‚Äôs Table of Deny Orders, or (iii) to anyone on the U.S.¬† Department of Commerce‚Äôs Bureau of Industry and Security Entities¬† List as published in the Export Administration Regulations (including¬† entities engaged in weapons of mass destruction proliferation in¬† various countries and persons and entities that are suspected of¬† diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and¬† laws both foreign and domestic. Except as authorized by law, you¬† agree and warrant not to export or re-export the software to any¬† county, or to any person, entity, or end-user subject to U.S. export¬† controls, including as set forth in subsections (i) ‚Äď (iii) above.¬†

    6. Severability; Interpretation. If any provision of these Terms, or any¬† Additional Terms, is for any reason deemed invalid, unlawful, void, or¬† unenforceable by a court or arbitrator of competent jurisdiction, then¬† that provision will be deemed severable from these Terms or the¬† Additional Terms, and the invalidity of the provision will not affect the¬† validity or enforceability of the remainder of these Terms or the¬† Additional Terms (which will remain in full force and effect). To the¬† extent permitted by applicable law, you agree to waive, and you hereby¬† waive, any applicable statutory and common law that may permit a¬† contract to be construed against its drafter. Wherever the word¬† ‚Äúincluding‚ÄĚ is used in these Terms or any Additional Terms, the word¬† will be deemed to mean ‚Äúincluding, without limitation,‚ÄĚ.¬†

    7. Communications. When you communicate with us electronically, such  as via email and text message, you consent to receive communications  from us electronically. Please note that we are not obligated to respond  to inquiries that we receive. You agree that all agreements, notices,  disclosures, and other communications that we provide to you  electronically satisfy any legal requirement that such communications  be in writing. 

    8. Investigations; Cooperation with Law Enforcement; Termination;  Survival. Lush reserves the right, without any limitation, to: (i)  investigate any suspected breaches of its Site security or its  

    information technology or other systems or networks, (ii) investigate  any suspected breaches of these Terms and any Additional Terms, (iii)  investigate any information obtained by Lush in connection with  reviewing law enforcement databases or complying with criminal laws,  (iv) involve and cooperate with law enforcement authorities in  investigating any of the foregoing matters, (v) prosecute violators of  these Terms and any Additional Terms, and (vi) discontinue the Site, in  whole or in part, or, except as may be expressly set forth in any  Additional Terms, suspend or terminate your access to it, in whole or in  part, including any user accounts or registrations, at any time, without  notice, for any reason and without any obligation to you or any third  party. Any suspension or termination will not affect your obligations to  Lush under these Terms or any Additional Terms. Upon suspension or  termination of your access to the Site, or upon notice from Lush, all  rights granted to you under these Terms or any Additional Terms will  cease immediately, and you agree that you will immediately  discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension  or termination will survive, including the rights and licenses you grant to  Lush in these Terms, as well as the indemnities, releases, disclaimers,  

    and limitations on liability and the provisions regarding jurisdiction,  choice of law, no class action, and mandatory arbitration. 

    9. Assignment. Lush may assign its rights and obligations under these  Terms and any Additional Terms, in whole or in part, to any party at  any time without any notice. These Terms and any Additional Terms  may not be assigned by you, and you may not delegate your duties  under them, without the prior written consent of an officer of Lush. 

    10. No Waiver. Except as expressly set forth in these Terms or any  Additional Terms, (i) no failure or delay by you or Lush in exercising  any of rights, powers, or remedies under will operate as a waiver of  that or any other right, power, or remedy, and (ii) no waiver or  modification of any term of these Terms or any Additional Terms will be  effective unless in writing and signed by the party against whom the  waiver or modification is sought to be enforced. 

    11. Connectivity. You are responsible for obtaining and maintaining all  Devices and other equipment and software, and all internet service  provider, mobile service, and other services needed for your access to  and use of the Site and you will be responsible for all charges related  to them. 

    12. California Consumer Rights and Notices. Residents of California are  entitled to the following specific consumer rights information: you may  contact the Complaint Assistance Unit of the Division of Consumer  Services of the Department of Consumer Affairs by mail at: 400 R St.,  Suite 1080, Sacramento, California 95814, or by telephone at (916)  445-1254. Their website is located at: http://www.dca.ca.gov. 

    18. Terms Applicable For Apple iOS.  

    If you are accessing or using the Site through an Apple Device, the following  additional terms and conditions are applicable to you and are incorporated  into the Terms by this reference: 

    1. To the extent that you are accessing the Site through an Apple Device,¬† you acknowledge that these Terms are entered into between you and¬† Lush and, that Apple, Inc. (‚ÄúApple‚ÄĚ) is not a party to these Terms other¬† than as third-party beneficiary as contemplated below.¬†

    2. The license granted to you in Section 1 of these Terms is subject to the  permitted Usage Rules set forth in the App Store Terms of Service  (see: http://www.apple.com/legal/itunes/us/terms.html) and any third  party terms of agreement applicable to the Service. 

    3. You acknowledge that Lush, and not Apple, is responsible for providing  the Site and Content thereof.

    4. You acknowledge that Apple has no obligation whatsoever to furnish  any maintenance or any support services to you with respect to the  Site. 

    5. To the maximum extent permitted by applicable law, Apple will have no  other warranty obligation whatsoever with respect to the Site. 

    6. Notwithstanding anything to the contrary herein, and subject to the  terms in these Terms, you acknowledge that, solely as between Apple  and Lush, Lush, and not Apple is responsible for addressing any claims  you may have relating to the Site, or your possession and/or use  thereof, including, but not limited, to: (i) product liability claims; (ii) any  claim that the Site fails to confirm to any applicable legal or regulatory  requirement; and (iii) claims arising under consumer protection or  similar legislation. 

    7. Further, you agree that if the Site, or your possession and use of the  Site, infringes on a third party's intellectual property rights, you will not  hold Apple responsible for the investigation, defense, settlement and  discharge of any such intellectual property infringement claims. 

    8. You acknowledge and agree that Apple, and Apple’s subsidiaries, are  third-party beneficiaries of these Terms, and that, upon your  

    acceptance of the terms and conditions of these Terms, Apple will have  the right (and will be deemed to have accepted the right) to enforce  these Terms against you as a third-party beneficiary thereof. 

    9. When using the Site, you agree to comply with any and all third-party  terms that are applicable to any platform, website, technology or  service that interacts with the Site. 

    19. Lush Buy Online, Pick Up In-Store Text Messaging Program  Terms 

    1. These Lush Buy Online, Pick Up In-Store Text Messaging Program  Terms ("BOPIS Messaging Terms") apply to your participation in the  text messaging program (the "Program") offered by Lush Internet Inc.  and its related parties and affiliates doing business as Lush or Lush  Fresh Handmade Cosmetics ("Lush") for the purpose of providing you  with updates on your online orders for which you have selected the  "pick-up in store" option and obtaining your feedback in customer  surveys. Your participation in the Program constitutes your express  consent to receive recurring automated messages (e.g., SMS) at the  phone number you provided, including messages that may be sent  using an automatic telephone dialing system. By participating in the  Program, you agree to these BOPIS Messaging Terms and the Lush  Terms of Use, which are incorporated by reference, including the  written agreement to arbitrate contained in the Dispute Resolution  section therein.  

    Program Details 

    The Program may include recurring and nonrecurring text messages  related to your online purchases for which you select the "pick-up in  store" option, soliciting feedback about your customer experience, as  well as other information related to your order. Message frequency will  vary. Lush reserves the right to alter the frequency of messages sent at  any time, so as to increase or decrease the total number of sent  messages. Lush also reserves the right to change the short code from  which messages are sent. Consent to receive automated text  messages is not a condition of any purchase. Message and data rates  may apply.  

    Not all mobile devices or handsets may be supported, and our  messages may not be deliverable in all areas. Lush, its service  providers and the mobile carriers supported by the Program are not  liable for delayed or undelivered messages.  

    T-Mobile is not liable for delayed or undelivered messages.  

    Cancellation  

    You may opt out of the Program at any time. Text the keyword STOP  to our shortcode to cancel your participation in the Program. After  texting STOP to our shortcode, you will receive one additional  message confirming that your request has been processed. You  acknowledge that our text message platform may not recognize and  respond to unsubscribe requests that do not include the STOP  keyword commands and agree that Lush and its service providers will  have no liability for failing to honor such requests. Your cancellation  request will apply only to the program linked to the shortcode to which  you text STOP. You may continue to receive text messages from Lush  through other programs you have joined until you separately  

    unsubscribe from those programs.  

    Help & Customer Care  

    Text the keyword HELP to our shortcode to receive customer care  contact information. If you are experiencing any problems, please  contact our customer care team by using the live chat on our website  or by calling 1-888-733-5874.  

    Privacy  

    For information about Lush's privacy practices, please review the Lush  Privacy Policy.  

    Contact  

    The Program is a service of Lush Fresh Handmade Cosmetics, located  at 8680 Cambie Street, Vancouver, British Columbia, Canada V6M  6P9. 

    20. Lush Pre-Order Terms  

    1. In addition to Section 4 Terms Applicable For Purchases, and to the ¬†extent that they do no conflict with Section 4, these Lush Pre-Order Terms (‚ÄúPre-Order Terms‚ÄĚ) apply to products which are offered on a pre-order ¬†basis by Lush Internet Inc., Lush Retail Ltd. and its related parties and affiliates doing business ¬†as Lush or Lush Fresh Handmade Cosmetics (‚ÄúLush‚ÄĚ). ¬†

    2. Pre-orders are made available on selected product lines. When pre-ordering  an item, an expected date of delivery will be displayed on the product page.  This date is not a guaranteed date and is subject to change. Lush will provide  notification of any delays to this date by email.  

    3. The Pre-order Product will be dispatched based upon the shipping option you  selected at checkout (which is confirmed on your initial order confirmation).  4. Payment for all pre-orders will be 1-3 days of placing your order.  5. Before the pre-order product is shipped, you may cancel the pre-order for a  credit to your credit card account by contacting Customer Care. 

    Homepage - USA Terms of Use