Terms and Conditions

Nocturnal Skincare, Inc. (Nocturnal) provides the content, services, and promotional materials available on and through the websites that Nocturnal owns or controls (today or in the future), including www.nocturnalskincare.com and www.tnocturnalskin.com (the Sites) subject to the following terms and conditions (Terms and Conditions). These Terms and Conditions also apply to the way we interact with you, and you interact with us, on third party sites where we post content or invite your feedback or participation, including, but not limited to, Twitter/X, Facebook, Instagram, YouTube, Pinterest, TikTok, and Google+ (Nocturnal Skincare Channels). By accessing or using the Sites, participating on the Nocturnal Channels, or signing up for the Mobile Program, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and Conditions, which include an ARBITRATION PROVISION, CLASS ACTION WAIVER, and our Privacy Policy.

 

additional policies
The following policies are incorporated into these Terms and Conditions. By agreeing to these Terms and Conditions, you also agree (as applicable) to:
Privacy Policy: Our Privacy Policy also governs how we collect, store, process, and share your information.

International Sales and Shipping Terms: If you purchase or request that we ship a product internationally, you agree to our International Sales and Shipping Terms.

Colorado Retail Delivery Fee: Effective July 1, 2022, Colorado Imposes a retail delivery fee on all orders shipped to a location in Colorado. This fee will be Included at customer checkout. For additional Information please visit the Colorado Department of Revenue.

mobile program terms and conditions
Nocturnal offers, or may offer in the future, various mobile messaging services (collectively, the Mobile Program). For example, you may receive a coupon for texting a short code, your email address, or other requested information to an identified number. By signing up for the Mobile Program, or by otherwise using or participating in the Mobile Program, you agree to Nocturnal’s Terms and Conditions along with these Mobile Messaging Terms and Conditions (collectively, the Terms). Furthermore, by signing up for the Mobile Program, sending a mobile message to participate in the Mobile Program, or by otherwise using or participating in the Mobile Program, you consent to the collection, use and disclosure of your personal information in accordance with Nocturnal's Privacy Policy.
These Terms may change from time to time, and we will post any updates here.

YOUR EXPRESS CONSENT TO RECEIVE AUTOMATED MARKETING CALLS AND TEXT MESSAGES FROM NOCTURNAL

By signing up for the Mobile Program, you expressly consent to receive from Nocturnal and its contractors marketing phone calls and text messages made using an automatic telephone dialing system and/or an artificial or prerecorded voice to any mobile or residential phone numbers you provide to Nocturnal as part of your enrollment in the Mobile Program. You also understand that consent is not required to make a purchase and that you may revoke your consent at any time.

By signing up for the Mobile Program, you also warrant and represent that you are either the account owner of any mobile or residential phone numbers you provide to Nocturnal, or you have the express permission of the account holder to provide such numbers.

You must be 18 or older to participate in Nocturnal's Mobile Program. Message and data rates may apply. You, not Nocturnal, will be solely responsible for any carrier charges because of text messages associated with the Mobile Program. The following carriers are currently supported by Nocturnal's Mobile Program: ACS Alaska, AT&T, Alltel, Appalachian Wireless, Bluegrass Cellular, Boost (Sprint), Cellcom, Cellular One, C Spire (formerly Cellular South), Cincinnati Bell, Cricket, Cross, Eastern Kentucky Network, Element Mobile, Epic Touch, GCI Communications, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri Cellular), Illinois Valley Cellular, Immix Wireless, Inland Cellular, iWireless, MetroPCS, Mobi PCS, Mosaic, Nex-Tech Communications, nTelos, Panhandle, Pioneer Cellular, Plateau Wireless, Revol Wireless, Simmetry Wireless, Sprint/Nextel, Syringa Wireless, T-Mobile, Thumb Cellular, U.S. Cellular, Union Wireless, United Wireless, Verizon Wireless, Virgin Mobile, West Central Wireless. Additional carriers may be added as they become supported.

You may email us at help@nocturnalskincare.com for help. When emailing for support, please be sure to include your mobile number and a detailed description of your question or support issue.

To cancel your participation in the Mobile Program and stop receiving marketing text messages from Nocturnal, text STOP to xxxxx at any time.

Alternatively, you may send an email with your mobile number and the subject "STOP" to: help@nocturnalskin.com. 

You agree not to send or otherwise make available content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, or contains hate speech. You acknowledge that Nocturnal may or may not monitor or screen mobile message content you provide, but shall have the right, without obligation and in its sole discretion, to monitor, screen, or refuse any content you make available, including content that violates these Terms. By opting in to the Mobile Program from a mobile telephone number, you are representing to Nocturnal  that the mobile number from which you have opted-in is one for which you are authorized to provide consent to receive mobile messages from Nocturnal. You agree that if and before you disconnect or transfer your mobile number, you will send all necessary short codes to Nocturnal  in order to stop future messages from being sent to that number.

Nocturnal  is not responsible for incomplete, lost, late, or misdirected messages, including, but not limited to, undelivered messages resulting from any form of filtering by your mobile carrier or service provider, and cannot guarantee that each user will receive the benefit of the Mobile Program for each mobile message sent.

Nocturnal  reserves the right, in its sole discretion, to cancel or suspend any or all of its Mobile Program, in whole or in part, for any reason, with or without notice to you.

purchase related policies; use of the sites
The products available on the Sites, or promoted on any Nocturnal  Channel, and any samples thereof we may provide to you, are for personal use only. You may not sell or resell any of the products or services, or samples that you purchase or otherwise receive from us. Customers may not purchase more than 6 units of a single item in one transaction and/or within a 24 hours window. We reserve the right, with or without notice, to cancel or reduce the quantity of any orders that we believe, in our sole discretion, may result in the violation of our Terms and Conditions.

Nocturnal  does not ship to freight forwarding companies or export agents.

We currently ship our products to the United States, Canada, and Puerto Rico in accordance with the terms of our FAQ and to other international countries in accordance with the terms of our Product Sales, Shipping, and Returns Policy, and is summarized for your convenience below.

• we do not ship international orders to P.O. Boxes;
• we provide pricing for your products and a price quote for shipping, and applicable customs fees, taxes, tariffs or duties in your local currency but all transactions are settled in U.S. dollars and are subject to exchange rate fluctuations;
• you will be the importer of record for your order;
• for US customers, you may return any order within 14 days of receipt, after which time you may be responsible for return shipping fees unless otherwise prohibited by law.
• we bill your credit card at the time your order ships, and shipping speed and delivery times depend on the shipping method you choose.

accuracy of information; cosmetic sales only
We attempt to be as accurate as possible when describing our products; however, to the extent permitted by applicable law, we do not warrant that the product descriptions, colors or other content available on the Sites are accurate, complete, reliable, current, or error-free. From time to time there may be information on the Sites that is in error, including with respect to descriptions, pricing and availability. Nocturnal reserves the right to correct those errors and to change or update information at any time without prior notice (including after you have submitted your order).

Our product descriptions and content are for educational and informational purposes only. We manufacture and sell cosmetics, so none of the statements on the Sites have been evaluated by the U.S. Food and Drug Administration or any other country's drug regulatory authorities and the results reported, if any, may not necessarily occur in all individuals. We are not offering products to diagnose, treat, cure or prevent any condition or disease. The Sites are not a substitute for medical advice from your own health care practitioner. Please test all products before use.

intellectual property
All content available on the website, including but not limited to text, graphics, logos, button icons, images, audio clips, data compilations and software, and the compilation and arrangement thereof (collectively, the Content) is the property of Nocturnal Skincare, Inc. or its licensors, and is protected by United States, Canadian and international copyright laws and treaties.

The trademarks, logos, and service marks displayed on the website owned by Nocturnal (collectively, the Trademarks) are the registered and unregistered marks of Nocturnal Skincare, Inc., our affiliates, partners or licensors, in the United States and other countries, and are protected by United States, Canadian and international trademark laws and treaties. Third party trademarks displayed on the Sites are the property of the respective third party and utilized by Nocturnal pursuant to a license.

Except as required under applicable law, neither the Content nor Trademarks nor any portion of the Sites may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose without our prior written consent. Requests for permission should be directed to our New York office via email,
help@nocturnalskin.com.

your obligations and responsibilities
In the access or use of the Sites and Nocturnal Channels, you must comply with these Terms and Conditions and the special warnings or instructions for access or use posted on the Sites. You must always act in accordance with the law and in good faith. It is strictly prohibited to use or contact the Sites to harass or disparage Nocturnal , its personnel, products or services. No unsolicited email (spam) may be directed to or through the Sites. Users may not use the Sites in order to transmit, distribute, display, store or destroy material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, patent, trademark, trade secret or other intellectual property rights of others or violate the privacy or publicity or other personal rights of others, or (c) that is libelous, obscene, threatening, abusive or hateful. If you default negligently or willfully in any of the obligations set forth in these Terms and Conditions (including our Privacy Policy), you shall be liable for all the losses and damages that this may cause to Nocturnal , our affiliates, partners or licensors.

dispute resolution
ARBITRATION PROVISION AND JURY TRIAL AND CLASS ACTION WAIVERS PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ACCESSING OR USING THE SITES, PARTICIPATING ON THE NOCTURNAL CHANNELS WITH NOCTURNAL, OR SIGNING UP FOR THE MOBILE PROGRAM, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST NOCTURNAL ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE ACTION OR PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, YOUR USE OF THE SITES, YOUR PARTICIPATION IN THE MOBILE PROGRAM, OR YOUR DEALINGS WITH NOCTURNAL SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.

THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND NOCTURNAL AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.

FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE ARBITRATOR, YOU AND NOCTURNAL MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN NEW YORK, NEW YORK. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.

THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED.

YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS AND CONDITIONS, YOUR USE OF THE SITES, YOUR PARTICIPATION IN THE MOBILE PROGRAM, OR YOUR DEALINGS WITH NOCTURNAL MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2)-YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.

YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION OR THE UNITED STATES DISTRICT COURTS LOCATED IN NEW YORK, NEW YORK, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS ON LIABILITY AND DAMAGES INCLUDED IN THESE TERMS AND CONDITIONS. THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WILL SURVIVE TERMINATION OF YOUR USE OF THE SITES OR NOCTURNAL CHANNELS, YOUR PARTICIPATION IN THE MOBILE PROGRAM, AND YOUR RELATIONSHIP WITH NOCTURNAL. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (FAA), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. IF YOU WISH TO INITIATE ARBITRATION AGAINST NOCTURNAL, YOU MUST SEND WRITTEN NOTICE TO NOCTURNAL AT

THE ADDRESS BELOW:
NOCTURNAL SKINCARE, INC.
2836 W Silver Lake Drive Los Angeles, CA 90039

With respect to any dispute regarding the Sites or your use of the Sites, all rights and obligations and all actions contemplated by these Terms and Conditions shall be governed by the laws of California, without giving effect to any principles of conflicts of laws, as if the Terms and Conditions were a contract wholly entered into and wholly performed within California.

comments, reviews and submissions
The Sites provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, reviews of our products photographs, images, video, creative works or other information, messages, transmissions or material to us, the Sites, and on Nocturnal Channels (a Post or Posts). You must be a registered user to submit a Post. Please stay and on topic and use the Posts to provide meaningful and respectful information for others. Repeating the same Post in multiple places is not permitted and links to obscene or offensive sites is also strictly prohibited.

Posts do not reflect the views of Nocturnal ; and Nocturnal  does not have any obligation to monitor, edit, or review any Post on the Sites. Nocturnal  assumes NO responsibility or liability arising from the content of any Posts nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Posts on the Sites. You are strictly prohibited from making any Posts that are unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Nocturnal  will fully cooperate with any law enforcement authorities or court order requesting or directing Nocturnal  to disclose the identity of anyone posting any such information or materials.

Nocturnal  may moderate any Posts and has the right (but not the obligation) to remove a Post that, in Nocturnal 's reasonable judgment, violates these Terms and Conditions. Nocturnal may also terminate a registered user's account or right to make Posts. Nocturnal  reserves the right to remove a Post if it contains any of the following content: Commercial solicitations or advertising for other products, offers or websites; any content or materials you do not own or which you have not secured the necessary rights; contact information of any kind including email addresses, URLs, phone numbers, and physical addresses; critical comments about other people or their Posts and discussions of medical conditions or claims of medical effectiveness.

All Posts on the Sites and Nocturnal Channels where Posts will become public. By making a Post, you grant Nocturnal the perpetual, worldwide, irrevocable right (but not the obligation) to post, edit, modify, reproduce, re-use, publish, print, distribute, display or otherwise use your Post and any other information, ideas, or links that you provide, in whole or in part, without royalty, other compensation, recognition or attribution, in all forms of media, now known or developed in the future. You also acknowledge that Nocturnal may use your Posts, and any ideas, concepts or know-how contained therein, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products.

If you have questions, comments or feedback about customer service issues (delivery, pricing, etc.), please contact our Los Angeles office via email help@nocturnalskin.com.

your account
You may choose to register on our Sites and you should review our Privacy Policy before you do so. If you do, you will have an email address/username and password for your account. You are responsible for maintaining the confidentiality of your account, username and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account, username and/or password. You agree to provide only accurate, truthful information. We reserve the right to refuse service and/or terminate accounts without prior notice if you violate these Terms and Conditions or if we decide, in our sole discretion, that it would be in Nocturnal's best interests to do so.

linking
It is strictly prohibited to link other sites with this website without Nocturnal's prior written permission. Nocturnal has no responsibility and assumes no liability for the unaffiliated sites to which it is linked, including but not limited to the content or web pages or other, products, services or materials on the site Sites linked to the Sites or posted to the Sites by anyone other than Nocturnal. We may permit some links for convenience (such as to Nocturnal Channels where we make content available), but it is not an endorsement by Nocturnal of the referenced content, product, service, supplier or Third Party Site. Please note that the rules and privacy policies of linked sites (including Nocturnal Channels) may differ from those of Nocturnal and should be reviewed by you when you use the link to access the other site.

Nocturnal may use the APIs of various third party websites, including the Nocturnal Channels. Our Sites are not verified by the Nocturnal Channels.

electronic gift cards
eGift Cards (which may also be referred to as electronic gift cards, electronic gift certificates or eGift certificates) can be redeemed only online at the Sites. Recipients of eGift Cards must have e-mail and access to the Internet in order to receive and redeem their online eGift Card.

Promotional offers and discounts cannot be applied to the purchase of eGift Cards. The value of eGift Card purchases are not used to determine promotional thresholds. Free gifts, specials, deluxe samples are not valid when purchasing an eGift Card. The use of eGift Cards is subject to these Terms and Conditions and applicable law. eGift Cards may only be used to purchase merchandise on the Sites and cannot be used to purchase other eGift Cards. Nocturnal will not honor eGift Cards sold by any other vendor or person other than Nocturnal. eGift Cards cannot be used at other retailers to purchase Nocturnal products.

When you purchase an online eGift Card from the Sites, we will automatically send the recipient an email within 24 hours, including the eGift Card code and instructions for use on the Sites. The code should be entered onto the Payment Information page during the checkout process. If the amount of the order exceeds the amount of the eGift Card, the recipient will need to use a credit card to pay for the balance of the order. If any online store credit is available to the recipient, then the store credit will automatically be applied first. Except as required by law, eGift Cards are not redeemable for cash. eGift Cards purchased by our customers do not expire and are not subject to any fees or charges. If we issue promotional eGift Cards or coupon codes in the future as a benefit to the members of our loyalty program, or otherwise, those promotional eGift Cards or coupon codes may be subject to an expiration date.

You can use one eGift Card towards the purchase of your order. Redemption of multiple eGift Cards for one order is not available at this time. If you misplace or delete your eGift Card, send an email to our Customer Service department and we will resend the redemption code for the eGift Card to the original recipient address. Please remember to include the recipient e-mail address and/or the order number with which it was purchased. If you sent the eGift Card to the wrong email address, please contact us at help@nocturnalskin.com. Our representatives will only be able to resend your eGift to a different recipient if it has not been redeemed. Promotional eGift Cards and coupons cannot be resent or recovered if deleted. If your eGift Card code is valid and unredeemed but not functional, our sole obligation will be to replace the eGift Card.

eGift Cards that have already been sent but have not yet been redeemed can be returned to the original purchaser's credit card. The eGift Card is automatically canceled upon the return. Please note that we cannot recall an eGift Card email after it has been sent. If the merchandise purchased with an eGift Card is returned, an online store credit will be issued to the gift recipient for the full amount of the merchandise return. Nocturnal does not offer exchanges or cash refunds for eGift Card purchases. Any funds charged to a credit card will be automatically credited to the same card. In addition to any other remedies, Nocturnal reserves the right to close your account or require an alternative form of payment if a fraudulently obtained eGift Card is presented for redemption.

disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT

1. YOUR USE OF THE SITES AND/OR PARTICIPATION IN THE MOBILE PROGRAM ARE AT YOUR SOLE RISK. THE SITES, INFORMATION AND MATERIAL IN THE SITES, AND THE MOBILE PROGRAM ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. WITH RESPECT TO THE SITES AND INFORMATION AND MATERIAL IN THE SITES, NOCTURNAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SITES WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE OR HARDWARE. YOU HEREBY ACKNOWLEDGE THAT THE SITES MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE SITES, TELECOMMUNICATIONS INFRASTRUCTURE, OR DISRUPTION, AND THEREFORE NOCTURNAL EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SITES USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE CAUSED BY SUCH FACTORS.
2. NOCTURNAL MAKES NO WARRANTY THAT (i) THE SITES AND INFORMATION AND MATERIAL THEREIN WILL MEET YOUR REQUIREMENTS, (ii) THE FUNCTIONS CONTAINED IN THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES OR INFORMATION AND MATERIALS THEREIN WILL BE ACCURATE, RELIABLE, OR AVAILABLE, (iv) ANY ERRORS IN THE SITES OR INFORMATION OR MATERIALS THEREIN WILL BE CORRECTED, AND (v) THE SITES AND ITS CONTENTS AND SERVER THAT MAKES THE SITES AVAILABLE ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS.
3. ANY MATERIAL, INFORMATION, PRODUCTS OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NOCTURNAL OR THROUGH OR FROM THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

limitation of liability
We are not responsible for timeliness, accuracy, unavailability or interruptions in availability, viruses or other defects in the Sites or its contents. We are also not responsible for any delay or failure in performance resulting directly or indirectly from acts of nature, or other forces or causes beyond our reasonable control including internet failures, computer equipment failures, telecommunication equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, explosions, acts of God, war, governmental actions, and non-performance of third parties not subject to our control.

In addition, we are not responsible for the contents of any communication, message, or information posted by you or other third parties; the content of any website not controlled, owned, or operated by us that is accessed from or linked to the Sites; or the content, services or information provided by any website purporting to be operated by Nocturnal or its affiliates, but not actually affiliated with, controlled, owned, or operated by Nocturnal.

SUBJECT ONLY TO LIMITATIONS IMPOSED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL NOCTURNAL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) RELATING TO THE SITES OR THE MOBILE PROGRAM REGARDLESS OF THE FORM OF ACTION AND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OR EVEN IF NOCTURNAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

SPECIAL NOTICE FOR NEW JERSEY USERS

BY USING THE SITES, YOU: (A) ASSUME ALL RISK OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITES; (B) IRREVOCABLY WAIVE ALL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SITES; (C) EXPRESSLY AGREE TO RELEASE AND DISCHARGE NOCTURNAL, AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITES; AND (D) YOU VOLUNTARILY WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST NOCTURNAL FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF NOCTURNAL AND ITS AGENTS AND EMPLOYEES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.

indemnification
You agree to defend, indemnify and hold harmless Nocturnal, 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 Sites, including your contributions, any use of the Sites’ content, services and products other than as expressly authorized in these Terms and Conditions or your use of any information obtained from the Sites.

fraud protection
We reserve the right to refuse to process any order due to suspected fraud or unauthorized or illegal activity. If such is the case, we may reject your order or our customer service department may call you at the phone number you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.

digital millennium copyright act ("DMCA") notice
Pursuant to 17 U.S.C. Section 512, as amended by Title II of the Digital Millennium Copyright Act (the "Act"), Nocturnal reserves the right, but not the obligation, to terminate your right to use the Sites if Nocturnal determines in its sole and absolute discretion that you are involved in any activity that may be infringing, including alleged acts of infringement, regardless of whether the material or activity is ultimately determined to be infringing. Nocturnal accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. In addition, pursuant to the Act, Nocturnal has implemented or will implement procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. You may contact the designated agent of Nocturnal to receive notification of claimed infringement at: or via mail Attn: DMCA Agent, Nocturnal Skincare, Inc., 2836 W Silver Lake Drive, Los Angeles, CA 90039.

Nocturnal respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the designated agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Sites; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

With respect to any dispute regarding the Sites, all rights and obligations and all actions contemplated by these Terms and Conditions shall be governed by the laws of New York, as if the Terms and Conditions were a contract wholly entered into and wholly performed within New York.

By using the Sites or signing up for the Mobile Program, you acknowledge and agree that these Terms and Conditions, which include our Privacy Policy constitute the complete and exclusive agreement between us concerning your use of the Sites and/or participation in the Mobile Program, and supersede and govern all prior proposals, agreements, or other communications.

We reserve the right, in our sole discretion, to change these Terms and Conditions at any time by posting the changes on the Sites. Any changes are effective immediately upon posting to the Sites. Your continued use of the Sites and/or participation in the Mobile Program constitutes your agreement to all such Terms and Conditions.If you have any questions regarding these Terms and Conditions, please contact us at help@nocturnalskin.com.