Please read this Agreement carefully, as it (among other things) requires in Section 13 that you and the Company arbitrate certain claims instead of going to court and restricts class action claims.
Please press or click ‘Accept’ if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at (https://hi.cocoon-skin.com/terms-of-service-2). Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not press ‘Accept,’ in which case you may not use the Service.
BY AGREEING TO THIS AGREEMENT AND/OR USING THE SERVICE, YOU EXPRESSLY AGREE AND ACKNOWLEDGE USE OF THE SERVICE HAS NO GUARANTEED OUTCOME OR RESULTS. DO NOT RELY ON THE SERVICE AS A MEANS TO GUARANTEE CHANGES TO YOUR PERSONAL APPEARANCE OR SKIN OR IN CONNECTION WITH PREVENTING, DIAGNOSING OR TREATING ANY DISEASE OR CONDITION. USE OF THE SERVICE IS NOT A SUBSTITUTE FOR MEDICAL ADVICE REGARDING ANY KNOWN OR SUSPECTED HEALTH CONDITION, INCLUDING WITHOUT LIMITATION, ANY DERMATOLOGICAL CONDITION. IF YOU SUSPECT THAT YOU HAVE A HEALTH OR SKIN CONDITION, SEE A MEDICAL PROVIDER IMMEDIATELY. UNDER NO CIRCUMSTANCES WILL COCOON BE HELD RESPONSIBLE FOR ANY HARM OR LIABILITY ARISING FROM OR RELATED TO THE MEDIA, YOUR USE OF THIRD-PARTY PRODUCTS, OR YOUR FAILURE TO SEEK PROMPT MEDICAL ATTENTION, REGARDLESS OF WHETHER THE FOREGOING RESULTS IN BODILY HARM, DEATH OR OTHER DAMAGE OR LIABILITY.
Note for Children. Cocoon is intended for adults suffering from problematic or chronic skin conditions and Use of the Service by anyone under the age of 14 is prohibited.
1. Other Agreements.
b. DMCA Policy.
The Company’s DMCA Policy (the DMCA Policy) sets forth processes and procedures for good faith notifications of alleged copyright infringement by Media available on the Service. The DMCA Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the terms set forth therein.
2. License to Use the Diary.
If you have downloaded and installed Cocoon’s mobile device application of the Skin Diary or are using Cocoon’s Skin Diary via the browser on a compatible mobile device that you own or control, then subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the Skin Diary for your personal, non-commercial purposes, in the manner enabled by the Company. If you are using the Skin Diary on an Apple, Inc. (Apple) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. Any use of the Skin Diary other than for private, non-commercial use is strictly prohibited.
3.Ownership; Proprietary Rights.
As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your Media, subject to the licenses granted to the Company and other Service users herein. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the software and technology used by the Company to provide Service features and functionality and all usage and other data and insights generated or collected in connection with the use thereof (the Company Materials). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, transmit, publish, publicly perform or display, copy, modify, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. If you provide Company with any ideas, insights, feedback or suggestions regarding the Service (Feedback), you hereby assign to Company all right, title and interest in and to such Feedback and acknowledge that Company shall have the right to exploit such Feedback and related information in any manner it deems appropriate on a worldwide, perpetual basis without payment of any compensation to you.
a. The Service allows you and other users to post and share Media through the Service and such other channels as may be enabled by the Company. You understand that all Media is available only on an ‘as-available’ basis and the Company does not guarantee that the availability of the Service will be uninterrupted or bug free. You agree you are responsible for all your Media and all activities that occur under your user account. Some or all your Media may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your Media may be removed if the Company determines (in its sole discretion) that its content is inappropriate or if it is the subject of flagging by other Service users.
b. You shall retain all your ownership rights in your Media. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable, and transferable license to use, sell, reproduce, distribute, prepare derivative works of, display, perform, and otherwise exploit your Media in connection with the Service and Cocoon’s (and its successor’s) business, including without limitation for purposes of developing, improving and testing Cocoon’s algorithms, products and services in any media formats and through any media channels. You also hereby grant to each user of the Service a non-exclusive license to access your Media through the Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such Media as permitted by the functionality of the Service and this Agreement. Media you submit to Third-Party Services (as defined in Section 8) through the Service is subject to the terms and conditions of the applicable Third-Party Service.
c. In connection with your Media, you further agree that you will not use, create, provide or post: (i) material that violates the community guidelines that Cocoon may adopt and post from time to time; (i) material that is subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) material that is false, unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any Media does not conform to this Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined in the Company’s DMCA Policy to request that the Company remove such content.
d. You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the Media posted by Service users and does not have any obligation to monitor such content for any purpose. You understand and agree that the Company is not a health services provider and makes no representations or warranties as to the Media or your reliance on the Media as posted by others or the suggestions derived by us from such Media, and Company shall have no liability for any claim or injury arising from or related to your reliance on the Media for any purpose.
5.No Medical Advice.
The Service will give you certain product, treatment, and behavioral recommendations for skin care based upon your Media and other information you and other Users like you have input into the Service. Additionally, you may engage with other users via the Service and receive input regarding your skin condition and beauty regimens. You agree and acknowledge that all such regimens, recommendations, input and other information on the Service are for informational purposes only and have not been evaluated or approved of by the U.S. Food and Drug Administration or any other regulatory agency. Nothing on the Service is meant to substitute for any medical advice provided by your physician, and you should not use the information contained herein for preventing, diagnosing or treating a health problem, disease or condition. Your skin care decisions are your sole responsibility, and Cocoon will not be held responsible for any negative consequences, including bodily harm, that result from recommended treatments, skin sensitivities or medical conditions. Cocoon recommendations are not medical advice. If you may have a health condition, including, without limitation, a dermatological condition, you should seek prompt medical attention. If you believe the regimen you are following is causing you harm, you should stop immediately and seek medical attention.
Use of the Service, including through the Skin Diary and electronic dialog systems, may require usage of data services provided by your internet or wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Service and Skin Diary.
7. Third-Party Products and Sites.
The Service may include recommended skin regimens and product, treatment, and behavioral recommendation and references to third-party products. The Service may also include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party products, sites and services, or products or services made available through such third-party sites and services, or your use of or interaction with such third-party sites or services.
8. Third-Party Services.
The Service may include features or functionality that interoperate with online services operated by third parties (Third-Party Services), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, Third-Party Agreements and such operators, Operators) or through application programming interfaces or other means of interoperability made generally available by the Operators (Third-Party APIs) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Service in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.
9. Prohibited Uses.
As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. In addition, you agree not to use false or misleading information in connection with your user account and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party). By using the Service, you represent and warrant that: (i) you are not located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a ‘terrorist-supporting’ country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account through the Service user interface. If you are for any reason unable to delete your account through the Service user interface, you may also send us a request for deletion of your account to hello@Cocoon-skin.com. Such requests will be honored within a reasonable time after they have been received, if you give us all reasonably necessary information and cooperation. Certain data (including your Media) may continue to be stored in our backup systems until regularly scheduled deletions occur. Deletion of your Service account may not result in the deletion of Media you have posted on Third-Party Services through use of the Service. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your use of the Service or any account you may have, or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third party for any such termination. Sections 3–16 and 18-21 will survive any termination of this Agreement.
You hereby acknowledge and agree that Apple: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the Service; (iii) is not responsible for addressing claims by you or any third party relating to the Service, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the Service or use thereof infringes any third party intellectual property rights; and (v) and its subsidiaries are each a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
12. Limitation of Liability and Damages.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED FIFTY U.S. DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
a. Agreement to Arbitrate. This Section 13 is referred to herein as the Arbitration Agreement. The parties agree that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
c. Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (AAA) rules and procedures (the AAA Rules), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 12. You may visit www.adr.org for information on the AAA and www.adr.org/fileacase for information on how to file a claim against the Company.
d. Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
e. Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of New York, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
f. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the Arbitration Fees) will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
g. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
h. Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 13.b is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 13.b is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. Changes to Agreement.
The Company may make modifications, deletions and/or additions to this Agreement (Changes) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
16. Electronic Communications.
When you communicate with the Company through the Service or send us e-mail, you are communicating with us electronically. You hereby: (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 13 shall be filed only in the state or federal courts in New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right later to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not (except as otherwise set forth in Section 13.h) affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
18. Contact Information.
The Service is provided by Cocoon Holdings, Inc. If you have any questions, complaints or claims with respect to the Service, you may contact Cocoon Holdings, Inc. at hello@Cocoon-skin.com.
19. California Residents.
Company is located at 1330 Avenue of the Americas, 14th floor, New York, NY 10019. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Effective Date: December 14, 2018