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Terms and Conditions

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Terms and Conditions

Last Updated: 02 March 2021

Welcome to www.esmiskin.com (this Website). These Terms and Conditions apply to (a) your use or access to this Website; (b) the supply of our Products ordered by you; and (c) the provision of our Services to you via this Website or other methods or platforms (e.g. via text message, email or social accounts) (“Services”).

YOUR USE OF THIS WEBSITE, OR THE SERVICES, CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND THE TERMS OF OUR PRIVACY POLICY.

Please review these Terms and Conditions carefully before you start to use the Website. If you do not agree to these Terms and Conditions, please do not use the Website, place any Orders or request our Services via this Website.

We offer a wide range of goods and services, and sometimes additional terms may apply. These are posted on the Website. When you purchase Products or request our Services where additional terms apply, you will be subject to those terms in addition to these Terms and Conditions, as applicable.

This Website is offered and available to users who are 18 years of age or older. By using this Website you represent and warrant that you meet all of these eligibility requirements. If not do not meet these requirements you must not access the Website.

 

  • DEFINITIONS
    • In these Terms and Conditions, unless the contrary intention appears:

      Accepted Order means an Order accepted by us and for which payment has been received by us and an order confirmation notice is provided to you for such Order.

      Business Day means a day that is not a Saturday, Sunday or public holiday in California or in Queensland, Australia or, for deliveries of Products, at the place of delivery.

      Contract means a contract of sale referred to in clause 2.4.

      Order means an order for the Products placed by you.

      Price means the price of the Products, exclusive of taxes, listed on the Website.

      Privacy Policy means our Privacy Policy, as amended from time to time, available at https://www.esmiskin.com/privacy-policy

      Product means the goods listed on the Website, or the goods purchased or to be purchased by you which are the subject of a Contract.

      Returns Policy means the returns policy for the Products purchased from us, as amended from time to time, and available at www.esmiskin.com/customer-care-returns

      Service means the services offered by us, including the “Skin Advice Service” offered on the Website or via other methods of platforms (e.g. via a text message, email or social account) referred to in clause 7 below.

      Terms and Conditions means these terms and conditions governing the use of the Website, the supply of Products or the provision of Services by us, and includes our Privacy Policy, our Product Warranty and our Returns Policy (where applicable).

      We, us or our means Makeup Cartel Pty Ltd (ABN 48 165 704 932) and its associated entities as defined in the Corporations Act 2001 (Cth).

  • ORDERS
    • You may place an Order for our Products by completing and submitting an online order and completing the checkout procedures on the Website. You must not order Products from us if you are under eighteen (18) years of age. We may, at our discretion, treat any order by a person under eighteen (18) years old as void.
    • Acceptance of all Orders is subject to our discretion. This Website and the information on it constitute an invitation to treat, and not an offer by us to supply any Products. Your Order represents an offer from you to purchase the Product in accordance with these Terms and Conditions. Our acceptance of a particular Order will not imply that we will accept any of your future Orders
    • Orders placed on a weekend or public holiday will not be processed until the next Business Day. If we accept your Order, we will acknowledge and accept your Order by providing you with an order confirmation number via email once your payment for the Products in your Order has been validated. If we do not accept your Order, we will provide a full refund of the amount paid by you and received by us for that Order.
    • Once your Order is accepted by us, a binding contract will come into existence between you and us in relation to the ordered Products. The Contract will comprise the Accepted Order and these Terms and Conditions. If there are any inconsistencies between these Terms and Conditions and another provision in the Contract, the provision in these Terms and Conditions will prevail to the extent of inconsistency. No other terms or conditions (including any terms or conditions printed on or referred to in your Order) will be binding on us unless we agree in writing.
  • ORDER ACCEPTANCE AND CANCELLATION
    • You may cancel an Order any time prior to the time we send out the order confirmation notice to you. You may not cancel any Accepted Orders unless we agree to your cancellation, in which case you will be required to pay a cancellation fee of USD$9.00.
    • You acknowledge and agree that we may not accept your Order, or we may cancel any Accepted Orders due to any of the following:

      (a) the Products you order are not, or no longer available;

      (b) we are not able to receive payment for the Products, or any payment was subsequently revoked; or

      (c) where a Product has been listed or advertised with an incorrect price or inaccurate information by mistake,

      in which case, we are under no obligation to sell you any Products. If you have made a payment and submitted your Order which is cancelled or rejected by us, or if we cancel your Accepted Order, we will provide you with a full refund for the amount you have paid and received by us for that Order or Accepted Order.

  • PRICE AND PAYMENT
    • Subject to clause 3, the price payable by you for the Products in an Accepted Order will be the Price for the Products as published on the Website at the time your Order is submitted. We may update or vary the Price from time to time without notice to you. Any changes will be effective once they are published on the Website.
    • Prices do not include sales tax, or any other tax, tariff, duty or insurance unless expressly stated otherwise. You are required to pay (where applicable) these charges in addition to, and at the same time as, payment of the Price for the Products. If we are required to pay any additional tax, tariff, duty, fee or charge (in addition to GST), you must reimburse us with the amount paid. We reserve the right to change the amount or basis or determining any charges or fees and institute new charges or fees, such new charges or fees will only be instituted with prior notice to you.
    • We accept payment for any Accepted Orders by PayPal, Afterpay or credit or debit card only. We will not be responsible for any loss or damage (whether direct or indirect) suffered by you if your PayPal, Afterpay, credit or debit card is fraudulently used or used in an unauthorised manner by a third party.
    • Unless expressly stated to the contrary, all payments must be made in the currency specified in the Price on the Website for your transaction. Where conversion from foreign currency is required, such currency conversion will be performed by PayPal, AfterPay, Brain Tree or the debit card company and may be subject to a fee charged by them, you will be responsible for payment of any such fee.
    • We will process PayPal, credit and debit card payments as soon as you submit your Order.
    • If your payment is declined or reversed for any reason, we reserve the right to reject your Order or cancel any Accepted Orders. We reserve the right to keep or sell the Products.
    • Your tax invoice will be sent to you when the Products are delivered. Please retain your tax invoice as it is your proof of purchase.
  • DELIVERY, DUTIES AND TAXES
    • There will be no delivery charges for standard shipping or for orders over US$50 in value for express post of each Accepted Order within the United States. Delivery charges will apply to all other shipping options (for example, express post within the United States for orders of less than US$50, shipping or express courier for international deliveries). For all delivery options, (including standard shipping within the United States) whether provided to you with or without charges, you will continue to be liable for any insurance, tax, tariff or duty (where applicable).
    • We will deliver the Products once full payment of the Price and all applicable charges (including charges for delivery, insurance or any other tax, tariff or duty) have been received. Any timeframes quoted by us for delivery of the Products are estimates only and will not be of the essence of the Contract; or otherwise confer any right of cancellation of an Accepted Order on you. We will not be liable for any loss or damages (directly or indirectly) sustained by you as a result of our failure to deliver by a particular delivery date.
    • We deliver Products within the United States and internationally. All Products will be delivered by a postal service or courier selected by you at the time your Order is submitted. If you provide specific delivery instructions (including to the postal service or courier), for example, for your Product to be to be left at your nominated address without acknowledgment of receipt, we will not be liable or responsible for any loss or damage to your Products once the delivery is made in accordance with your instructions. We are also not liable or responsible for any loss or damage to your Products that occurs as a result of the handling of Products by the postal service or courier in the process of delivering such products to you.
    • If the Products are to be delivered outside of the United States, you must comply with all laws and regulations of the country where the Products of your Accepted Order is shipped. You will be listed as the “importer” of the Product. All taxes, duties and tariffs will be your sole responsibility. We have no control over such taxes, duties and tariffs and do not have any obligation to ensure any Accepted Order will clear customs. You should contact relevant customs authority to determine if your Products under an Accepted Order will be charged any taxes, duties and tariffs or subject to any laws and regulations.
    • We do not take any responsibility where the Products of your Accepted Order are opened for inspection by customs authorities. In order to facilitate customs clearance and comply with local laws, we may disclose personal information, such as your name and address and other information such as the Price and description of the Products and shipment and carrier information.
    • You acknowledge that any delays caused by custom clearance are beyond our control. Our original estimated delivery timeframes do not take into account custom clearance. We are not liable for any loss or damage you suffer due to custom clearance delays.
    • Unless otherwise agreed, the Products are not insured by us and you will bear any risk of loss or damage to the Products when delivered to you.
  • INTELLECTUAL PROPERTY
    • All intellectual property rights in and to this Website, and all information, contents and photographs published on this Website, whether in relation to our Products or otherwise, belongs or is otherwise licensed to us and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or property right laws. You acquire no right, title or interest in or to our intellectual property by virtue of these Terms and Conditions. Nothing on the Website should be construed as granting any licence to use any intellectual property right, including any trade mark, without our permission. These Terms and Conditions permit you to use the Website for your personal non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download store or transmit any of the material on the Website except as follows:

      (a) your computer may temporarily store copies of such materials in RAM incidental to you accessing and viewing them;

      (b) you may store files that are automatically cashed by your Web browser for display enhancement purposes;

      (c) you may print or download one copy of a reasonable number of pages from the Website for your own personal non-commercial use and not for further reproduction, publication or distribution;

      (d) if we provide applications for download, you may download a single copy to your computer or mobile device solely for your own personal non-commercial use, provided you agree to be bound by our end user licence agreement for such applications; and

      (d) if we provide social media features you may take such action as are enabled by such features.

    • In particular, you must not:

      6.2.1.1 use any trade marks appearing on or in relation to the Products, our photographs of the Products, or any information or contents published on this Website in relation to the Products:

           - i. to promote or market the Products in any way;

           - ii. in connection with goods or services that do not belong to us;

           - iii. in a manner that may be confusing, misleading or deceptive; or

           - iv. in a manner that disparages us, our Products, Services or the Website.

      6.2.1.2 Modify copies of any material from this Website

      6.2.1.3 Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this Website.

  • SERVICES
    • We may provide advice or give recommendations to you with respect to skin care and cosmetic products if you use the “Skin Advice Service” on the Website or via other methods or platforms (e.g. via a text message, email or on social accounts). The “Skin Advice Service” and any other information on the Website is provided strictly for general information purposes and should not be construed as specific or medical advice to your particular need.
    • The advice and recommendations given via the “Skin Advice Service” are suggestions only based on our experience and understanding of the Products and, where applicable, on the information provided by you. Our advice and recommendations, including with respect to Products, do not come with any guarantee or warranty of success or suitability.
    • Our “Skin Advice Service” in not intended to be professional medical advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health professional with any question or issue you may have regarding the condition of your skin, or other medical condition. Do not disregard professional medical advice or delay in seeking it because of something you have read on this Website, or pursuant to using our “Skin Advice Service”.
  • GIFT CARDS
    • Gift Cards may be used online only at www.esmiskin.com.
    • Gift Cards are non-refundable and may not be redeemed for cash.
    • Gift Cards are valid for a period of 3 years from date of purchase.
    • Lost or stolen gift cards will only be replaced if the customer can provide proof of purchase and ID.
  • YOUR ACCOUNT AND PRIVACY
    • You may create a customer account with us by completing and submitting to us a completed online form on the Website.
    • By registering a customer account with us, or submitting an Order for our Products, we may require you to provide your personal information, including your name, your email address, phone number, billing and delivery address. You warrant that all information submitted to us is true, accurate and up-to-date.
    • Our Privacy Policy governs how we collect, use, handle and disclose any personal information you provide or disclose to us and forms part of these Terms and Conditions. You agree to be bound by the terms of our Privacy Policy and should carefully read and review our Privacy Policy and these Terms and Conditions with respect to the collection, use, handling and disclosure of personal information.
    • If you register a customer account with us, we will require you to create a password for your customer account. You are must ensure that your username and password are kept secure and confidential. You must not allow your username or password to be used by any third party, or otherwise permit any third party to access your account at any time. You will be solely responsible for any misuse or abuse of your username, password or person details for anything that results from the use of your customer account (including any Orders placed under the account). You agree to indemnify us against any loss or claims arising from the unauthorised use of your username and password.
    • You will immediately notify us through our website’s “Contact Us” section of any suspected or actual unauthorised use of your account, disclosure of your username and password or any other security breaches.
    • Your account registrations are subject to our acceptance. We reserve the right to deny, restrict, suspend or close any customer accounts at our discretion.
    • You agree and consent to us contacting you for direct marketing purposes subject to our Privacy Policy, such as to inform you about products and services that may be of interest to you. This consent is not limited in time unless you choose to opt out by notifying us in writing via the “Contact Us” section of this Website, or by utilising an “unsubscribe” facility on a communication we send to you, in which case, we will take steps to ensure you do not receive any such direct marketing information in the future.
    • Cookies refer to small pieces of data which are stored on your computer. Cookies may be used to control the display of an advertisement, track your browsing patterns, to personalise information and record registration. You acknowledge that we may store one or more cookies in your browser or request your browser to transmit the data to the web server. Subject to our Privacy Policy, we reserve the right to use anonymous data acquired through cookies about our users for any business purposes.
  • OUR WEBSITE AND YOUR USE
    • We have made reasonable endeavours to ensure that the information and content provided on this Website are accurate and current at the date of publication, and that the photographs of the Products listed on this Website are represented accurately (including the size, colour, texture and overall appearance of the Product and the colour and shades offered by the Products). However, you acknowledge and agree that:

      (a) the effect and texture of the Products may appear different in real life in comparison to the images displayed on the Website due to the effect of the Products on different skin tones and the texture of different types of skin on which the Products are applied;

      (b) the size of the Products may appear different in real life in comparison to the images displayed on the Website, for example, the Product may appear smaller or bigger than their actual size;

      (c) the fill level of the Product may appear higher or lower than the fill level of the Product displayed on the Website (where applicable);

      (d) information to certain Products may have been inaccurately described by our suppliers which we have relied upon and undertaken reasonable inspections, which would normally be expected in the course of business to verify the information; and

      (e) subject to clause 14 and to the extent permitted by law, we provide no warranties, representations, or guarantees of any kind (whether implied, expressed or otherwise) in relation to information, content and photographs on this Website.

    • We have used commercially reasonable efforts to provide you with access to this Website via the internet. You acknowledge and agree that access to and use of this Website may be temporarily suspended for scheduled or urgent server maintenance work or for other reasons beyond our reasonable control.
    • The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is at your own risk.
    • Subject to clause 14 and to the extent permitted by law and, except as provided by these Terms and Conditions, we will not be liable for any losses (including through negligence), damage (directly or indirectly), costs or expenses suffered by you or claims made against you in connection with:

      (a) your reliance on any information, contents or photographs on this Website, including any errors, omissions, inaccuracies in the information, content and photographs of this Website; and

      (b) your use of or inability to use the Website or any defects on the Website.

    • To the extent permitted by law, where you believe a Product you have purchased from this Website does not meet your expectations or the description of the Website, your sole remedy is to exercise your rights under clauses 14, 15 or 17.
    • We may include links providing access to other websites or content provided by third parties. You acknowledge that we are not responsible for the accuracy of the information contained in these third party websites or third party content and we do not endorse any features, content, advertising, products or any other materials, and such information does not form part of our content. All statements and/or opinions expressed in these websites and third party content are solely the opinions and the responsibility of the person or entity providing those materials and do not necessarily reflect our opinion. You should review any applicable terms and the privacy policy of a third party website before using that website or providing any information. You agree and acknowledge that you access and use third party websites and content entirely at your own risk and that we are not responsible or liable to your or any third party for the content or accuracy of any materials provided by third parties.
    • You agree at all times to access and use the Website in accordance with these Terms and Conditions (including our Privacy Policy) and all applicable laws. You must not:

      (a) copy, collect, use, duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rent, lease, loan, trade, rebrand, or otherwise transfer any content, information and photographs found on this Website, except expressly authorised by us;

      (b) utilise any content you view on or obtain from this Website or any part of this Website to provide any commercial service including any service that is competitive with us;

      (c) remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of this Website;

      (d) remove, obliterate, or obscure from view any copyright, trade mark or confidentiality notice or legend appearing on or within this Website;

      (e) create a deep-link to this Website for any purpose unless expressly authorised in writing by us;

      (f) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in this Website, and must not use such processes to download or access our contact information or any other user of this Website;

      (g) engage in “framing,” “mirroring” or otherwise simulating the appearance or the function of this Website, unless expressly authorised in writing by us;

      (h) attempt to or actually access this Website by any means other than through the interfaces provided by this Website;

      (i) remove, cover or otherwise obscure any form of advertisement included on this Website;

      (j) interfere with or disrupt the availability of this Website, including but not limited to any servers or networks connected with this Website;

      (k) use this Website in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation regarding the export of data or software to and from the US or other countries);

      (l) use this Website for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

      (m) to transmit or procure the sending of advertising or promotional material without our consent including “junk mail”, “spam” or “chain letters”;

      (n)  use the Website in any manner that could disable, overburden, damage or impair the site or interfere with any other party’s use of the Website;

      (o) introduce any viruses, Trojan horses, works, logic bombs or other material that is malicious or technologically harmful; or

      (p) attempt to gain unauthorised access to, interfere with or disrupt any parts of the Website, server on which the Website is stored or any server, computer or database connected to the Website or otherwise attempt to interfere with the proper working of the Website.

  • USER CONTRIBUTIONS

    • The Website may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.
    • All User Contributions must comply with the Content Standards set out in these Terms and Conditions.
    • Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
    • You represent and warrant that:

      (a) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.

      (b) All of your User Contributions do and will comply with these Terms and Conditions.

    • You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

      (a)We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

      (b) We have the right to:

           - i. Remove or refuse to post any User Contributions for any or no reason in our sole discretion.

           - ii.Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms and Conditions, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for us.

           - iii.Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

           - iv. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.

           - v.Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

      (c) Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

      (d) However, we do not undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.

  • CONTENT STANDARDS
    • These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state and local laws and regulations. Without limiting the foregoing, User Contributions must not:

      (a) Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.

      (b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

      (c) Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.

      (d)  Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and Conditions and our Privacy Policy.

      (e) Be likely to deceive any person.

      (f) Promote any illegal activity, or advocate, promote, or assist any unlawful act.

      (g) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person..

      (h) Impersonate any person, or misrepresent your identity or affiliation with any person or organization.

      (i) Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.

      (j) Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

  • COPYRIGHT INFRINGEMENT
    • If you believe that any User Contributions violate your copyright, please send us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
    • The Digital Millennium Copyright Act of 1998 ("DMCA”). The DMCA provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by us infringe your copyright, you may provide our Copyright Agent:

      Copyright Agent

      Name: Evette Hess
      Phone: (+61) 414 964 907
      Email: hello@esmiskin.com
      Address: 17 Strathaird Road, Bundall, QLD 4217, Australia

      with a written notice pursuant to the DMCA requesting that we remove the material or block access to it. The notice must include the following information:

      13.2.1 Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

      13.2.2 Identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Services are covered by a single notification, a representative list of such works);

      13.2.3 Identification of the material that is claimed to be infringing or the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to allow us to locate the material on the Services;

      13.2.4 Your name, address, telephone number, and email address;

      13.2.5 A statement 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; and

      13.2.6 A statement that the information in the notification is accurate and under penalty of perjury, you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    • If you believe in good faith that your User Generated Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Generated Content, the DMCA permits you to send a counter-notice to our Copyright Agent containing the following information:

      (a) Your physical or electronic signature;

      (b) Identification 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 disabled;

      (c) A statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and

      (d) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the State of California, and a statement that you will accept service of process from the person who provided the original DMCA notification of the alleged infringement or an agent of such person.

    • If a counter-notice is received by our designated Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Generated Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user who provided the User Generated Content, the removed User Generated Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
    • Notices and counter-notices must meet current statutory requirements imposed by the DMCA; see 17 U.S.C. 512(c)(3) for details. Notices and counter-notices under the DMCA, as well as all other communications addressed to us relating to these Terms of Use, should be sent to our designated Copyright Agent.
    • You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
    • We recommend that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that penalties may apply for false claims under the DMCA.
  • WARRANTIES
    • You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
    • TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
    • YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
    • TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
    • THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  • LIMITATION OF LIABILITIES

    • TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL MAKEUP CARTEL PTY LTD, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITE LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
    • TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABLITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR THESE TERMS AND CONDITIONS, HOWEVER ARISING, INCLUDING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) IN EQUITY, UNDER STATUTE OR OTHERWISE WILL NOT EXCEED THE PRICE PAID BY YOU FOR THE PURCHASE OF THE PRODUCTS UNDER THESE TERMS AND CONDITIONS.
    • THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  • INDEMNITY

    • You agree to defend, indemnify, and hold harmless Makeup Cartel Pty Ltd, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms and Conditions or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms and Conditions, or your use of any information obtained from the Website.
  • RETURNS AND REFUNDS

    • We offer store credits as refunds for certain Products in accordance with our Returns Policy, available at www.esmiskin.com/customer-care-returns. Our Returns Policy sets out our policies and procedures in relation to “change of mind” purchases of certain of our Products ordered by you.
    • You must follow the instructions set out in our Returns Policy to return a Product for a refund in the form of a store credit. All Products must be returned to us in the same condition as when they were delivered. Subject to clauses 14 and 17, we will not accept “change of mind” returns of:

      (a) any Products that have been altered or customised (including with respect to their packaging and/or labels displayed on such Products);

      (b) any Product that has been opened or used; and

      (c) any Products on sale, as advertised on our Website.

    • If you are entitled to a store credit as a refund under our Returns Policy, we will only give you the store credit once we have received the Product and inspected it and assessed whether it is eligible for a refund under these Terms and Conditions. Any store credit we make will be valid for thirty (30) days and may only be used for purchases via the Website.
  • GENERAL

    • These Terms and Conditions are governed by the laws of the State of California, without regard to conflicts of law principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. Any and all claims and controversies arising out of and related to the Privacy Policy and these Terms and Conditions shall be settled in the courts of competent jurisdiction in California. The foregoing shall not preclude us from seeking any injunctive relief in courts of competent jurisdiction located in other countries and jurisdictions for protection of our intellectual property rights.
    • ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
    • While we invite visitors from all parts of the world to visit the Website, visitors acknowledge that the Website, and all activities available on and through the Website, are governed by the laws of the United States of America. We do not represent that materials on the Website are appropriate or available for use in other locations. Persons who choose to access the Website from other locations do so on their own initiative, and are responsible for compliance with local laws.
    • We may change any provision in these Terms and Conditions from time to time without notice. Any updated Terms and Conditions will be published on the Website, are effective immediately, and will apply to all access to, orders placed and all other use of the Website after they are published. Your continued use of the Website following the publication of updated Terms and Conditions means that you accept and agree to the changes. You are expected to check this page from time to time to ensure that you are aware of any changes.
    • Website content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
    • You must not assign any rights and obligations under these Terms and Conditions whether in whole or in part without our prior written consent.
    • Any notice in connection with these Terms and Conditions will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
    • If any provision of these Terms and Conditions is invalid, illegal or unenforceable, these Terms and Conditions Sale take effect (where possible) as if they did not include that provision.
    • The Terms and Conditions and our Privacy Policy constitute the sole and entire agreement between you and us regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.
    • Any failure by us to insist upon strict performance of any provision in these Terms and Conditions will not be taken to be a waiver of any existing or future rights in relation to the provision.
    • If a dispute arises under these Terms and Conditions, neither you nor us may bring court action against the other (other than proceedings seeking urgent interlocutory relief) without first attempting to resolve the dispute by negotiation for a period of at least 14 days.
  • CONTACT US

    • If you need to contact us for any reason, please do so using the contact form on our Website at www.esmiskin.com/contact/.

      All notices of copyright infringement claims should be sent to the Copyright Agent in the manner and by the means set out herein.

      Copyright Agent

      Name: Evette Hess
      Phone: (+61) 414 964 907
      Email: hello@esmiskin.com
      Address: 17 Strathaird Road, Bundall, QLD 4217, Australia


      This Website is maintained by Makeup Cartel Pty Ltd.