Nikalex Terms of Use
Please read these Terms of Use (the "Agreement") carefully. Your use of the Nikalex Online Properties (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Nikalex, Inc. ("Nikalex" or "we") concerning your use of (including any access to) the websites currently located at https://www.nikalexinc.com and any other websites that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor site(s) thereto, the "Sites"), and the mobile software applications and any other mobile applications that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor applications(s) thereto, the "Apps"). The Sites and Apps are referred to collectively in this Agreement as the "Nikalex Online Properties".
This Agreement hereby incorporates by this reference any additional terms and conditions posted by Nikalex through the Nikalex Online Properties, or otherwise made available to you by Nikalex. Your use of the Nikalex Online Properties is governed by this Agreement regardless of how you access the Nikalex Online Properties, including through the Internet, through Wireless Access Protocol (commonly referred to as "WAP"), through a mobile network or otherwise.
BY USING THE NIKALEX ONLINE PROPERTIES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE NIKALEX ONLINE PROPERTIES ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 18 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Changes. We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Nikalex Online Properties. Any such changes will become effective on the "Last Updated" date indicated above and such changes will not apply to any dispute between you and us arising prior to such date on which the revised Agreement incorporating such changes became effective, or otherwise notified you of such changes.
Your use of the Nikalex Online Properties following any changes to this Agreement will constitute your acceptance of such changes. The "Last Updated" legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Nikalex Online Properties (including access via any third-party links); charge, modify or waive any fees required to use the Nikalex Online Properties; or offer opportunities to some or all users.
2. Payments. Payments that we accept are;
Visa (credit and debit cards)
MasterCard (credit and debit cards)
American Express
Discover (US merchants only)
Diner's Club
JCB
Apple Pay
PayPal
3. Information Submitted Through the Nikalex Online Properties. Your submission of information through the Nikalex Online Properties is governed by Nikalex's Privacy Policy, located at https://www.nikalexinc.com/privacy-policy (the "Privacy Policy"). You represent and warrant that any information you provide in connection with the Nikalex Online Properties is and will remain accurate and complete, and that you will maintain and update such information as needed.
4. Jurisdictional Issues. The Nikalex Online Properties are controlled or operated (or both) from the United States, and are not intended to subject Nikalex to any non-U.S. jurisdiction or law. The Nikalex Online Properties may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Nikalex Online Properties is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Nikalex Online Properties' availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
5. Products. The Nikalex Online Properties may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, "Products"), as well as references and links to Products. Such Products may be made available by Nikalex or by third parties. The availability through the Nikalex Online Properties of any listing, description or image of a third-party Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product (including the validity of any coupon or discount) is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
6. Transactions. We may make available the ability to purchase or otherwise obtain certain Products through the Nikalex Online Properties or through other sales channels such as telephone orders, mail orders or our physical stores (a "Transaction"). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information ("Payment Information"). YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree to pay all charges incurred by you or on your behalf through the Nikalex Online Properties, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
We and our third party payment service providers may request, and may receive from any of your payment card issuers or any payment card network, updated payment card information, such as cancellation of any payment card account, or updated payment card numbers or expiration dates. If such updated information is provided to us and/or any of our third party payment service providers, we may use that information to process any payment that you have authorized us to charge to such payment card, including payment for any outstanding balances owed by you on any purchase. By using the Nikalex Online Properties and accepting this Agreement, you hereby authorize Nikalex and its third party payment service providers to update your payment card information and charge your payment card using any such updated payment card information. Your payment card issuer may allow you to opt out of providing updated card information. For more information, please contact your payment card issuer.
7. Restrictions. Nikalex reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; to cancel any Transaction even after it has been placed on line through the Nikalex Online Properties, via customer service, in a Gallery, and/or in an Outlet, and to refuse to provide any user with any Product. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. You agree that you will not resell any products or services obtained through a Transaction, unless we have provided our express prior written consent for you to do so.
8. Consent Agreement for Storing Payment Information. You agree that we may store your Payment Information following your completion of a Transaction. We will only use Payment Information to finalize complete payment for any Product purchased online though the Nikalex Online Properties, via customer service, in a Store, and/or to facilitate future Transactions you may initiate through the Nikalex Online Properties. You may withdraw your consent permitting Nikalex to store your Payment Information by contacting us at info@nikalexinc.com. Any changes to the terms of this consent permitting Nikalex to store your Payment Information will be communicated to you as described in Section 1 of this Agreement.
9. Refunds & Exchanges. Refunds and exchanges will be subject to Nikalex's applicable refund and exchange policies. The refund and exchange policy for Transactions made through nikalexinc.com is available at https://www.nikalexinc.com/returns-and-exchanges.
In the event that you have received a refund, an exchange and/or a temporary replacement Product for Product purchased through Nikalex Site, via customer service, in a Store, and you have not returned that Product and/or the temporary replacement Product to us within ten (10) business days after you have received a refund, or you received a refund that was greater than the amount you paid, then you agree that we can hold and not process any pending and/or any future orders from you until we have received the Product or full payment from you. You also agree that if a Product for which you received a refund or exchange, or a temporary replacement Product is not returned to us within ten (10) business days after you are issued a refund, then we may utilize your current or future Payment Information to re-charge you for that Product at any time.
10. Shipping. Nikalex offers shipping services subject to Nikalex's applicable shipping policies. The shipping policy for Transactions made through nikalexinc.com is available at https://www.nikalexinc.com/shipping-delivery.
To the extent of any conflict between the terms and conditions of this Agreement and those of the Trade Terms & Conditions or the Contract Terms & Conditions, those of the Trade Terms & Conditions and the Contract Terms & Conditions will govern.
11. Sign Up, Registration; User Names and Passwords. You may need to register or sign up to use all or part of any Nikalex Online Property. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Nikalex, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or account for any Nikalex Online Property.
12. Rules of Conduct. In connection with the Nikalex Online Properties, you must not:
Post, transmit or otherwise make available through or in connection with the Nikalex Online Properties any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
Post, transmit or otherwise make available through or in connection with the Nikalex Online Properties any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
Use the Nikalex Online Properties for any purpose that is fraudulent or otherwise tortious or unlawful.
Harvest or collect information about users of the Nikalex Online Properties.
Interfere with or disrupt the operation of the Nikalex Online Properties or the servers or networks used to make the Nikalex Online Properties available, including by hacking or defacing any portion of the Nikalex Online Properties, or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Nikalex Online Properties.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Nikalex Online Properties except as expressly authorized herein, without Nikalex's express prior written consent.
Reverse engineer, decompile or disassemble any portion of the Nikalex Online Properties, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Nikalex Online Properties.
Frame or mirror any portion of the Nikalex Online Properties, or otherwise incorporate any portion of the Nikalex Online Properties into any product or service, without Nikalex's express prior written consent.
Systematically download and store content of the Nikalex Online Properties.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape", "data mine" or otherwise gather content from the Nikalex Online Properties, or reproduce or circumvent the navigational structure or presentation of the Nikalex Online Properties, without Nikalex's express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Sites' root directories, Nikalex grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Nikalex reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Nikalex Online Properties.
13. Third Party Materials; Links. Certain functionality of the Nikalex Online Properties may make available access to materials made available by third parties ("Third Party Materials"), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Nikalex with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Nikalex Online Properties at any time. In addition, the availability of any Third Party Materials through the Nikalex Online Properties does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
14. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE NIKALEX ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) NIKALEX DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE NIKALEX ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. THIS SECTION 10 DOES NOT AFFECT ANY EXPRESS WARRANTIES THAT WE MAY PROVIDE DIRECTLY TO YOU IN WRITING WITH RESPECT TO PRODUCTS PURCHASED THROUGH THE NIKALEX ONLINE PROPERTIES.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NIKALEX AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE "AFFILIATED ENTITIES").
While we try to maintain the timeliness, integrity and security of the Nikalex Online Properties, we do not guarantee that the Nikalex Online Properties are or will remain updated, complete, correct or secure, or that access to the Nikalex Online Properties will be uninterrupted. The Nikalex Online Properties may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Nikalex Online Properties. If you become aware of any such alteration, please contact us by visiting https://www.nikalexinc.com/contact-us and providing a description of such alteration and its location.
15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: NIKALEX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION TRANSMITTED VIA THE NIKALEX ONLINE PROPERTIES (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF SUCH INFORMATION), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) NIKALEX WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE NIKALEX ONLINE PROPERTIES OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS; (B) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE NIKALEX ONLINE PROPERTIES OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE NIKALEX ONLINE PROPERTIES; AND (C) THE MAXIMUM AGGREGATE LIABILITY OF NIKALEX FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF: (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO NIKALEX TO USE THE NIKALEX ONLINE PROPERTIES; AND (2) TEN U.S. DOLLARS ($10).
ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NIKALEX AND THE AFFILIATED ENTITIES.
16. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Nikalex and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys' fees) arising out of (a) your use of, or activities in connection with, any of the Nikalex Online Properties; and (b) any violation or alleged violation of this Agreement by you.
17. Termination. This Agreement is effective until terminated. Nikalex may terminate or suspend your use of any or all of the Nikalex Online Properties at any time and without prior notice, including if Nikalex believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Nikalex Online Properties will immediately cease, and Nikalex may, without liability to you or any third party, immediately deactivate or delete your user name, password and account(s), and all associated materials, without any obligation to provide any further access to such materials.
18. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND NIKALEX, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT NIKALEX AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
19. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Nikalex does not endorse any of the products or services listed on such site.
20. Information or Complaints. If you have a question or complaint regarding any of the Nikalex Online Properties, please contact us by visiting https://www.nikalexinc.com/contact-us .
21. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; or (b) on any of the U.S. government lists of restricted end users.
22. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Nikalex. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term "including" or variations thereof in this Agreement shall be construed as if followed by the phrase "without limitation". This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Nikalex relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Nikalex relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Nikalex Online Properties or by email (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Nikalex will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.