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Policies & Procedures

Maskcara™

POLICIES & PROCEDURES

Return Policy

If you are not completely satisfied with your Maskcara Beauty purchase, please return/exchange for a full refund or exchange if postmarked within 30 days of receipt. Return shipping and handling fees are paid by customer. All returns/exchanges must include a return/exchange form.

Please note that when sending a return, make certain to retain your tracking number.  Return/exchanges that do no arrive at our warehouse cannot be processed without a valid tracking number.

Please fill out your return/exchange form and mail returns to:

Maskcara Returns/Exchanges

1495 S Blackridge Dr Suite A150

St. George, UT 84770

___________________________

  1. Policies and Compensation Plan Incorporated into Artist Agreement; Amendments. These Policies and Procedures, in their present form and as amended at the sole discretion of Maskcara, Inc/LLC (hereafter “Maskcara” or the “Company”), are incorporated into the Maskcara Independent Artist Agreement. Throughout these Policies, when the term “Agreement” is used, it collectively refers to the Maskcara Independent Artist Agreement, the Policies and Procedures, the Maskcara Compensation Plan, and the Maskcara Business Entity Addendum (the Business Entity Addendum is only applicable to Artists who enroll as a business entity).  Independent Artists shall be referred to herein as “Artists.” The Company reserves the right to amend the Agreement at its discretion.  Amendments shall be effective 30 days after notice and publication of the amended provisions in the Artist’s Back-Office, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. 
  1. Policies and Provisions Severable. If any provision of the Agreement, in its current form or as amended, is held void or unenforceable, only the void or unenforceable portion(s) of the provision shall be severed from the Agreement and the remaining provisions shall remain in effect. The severed provision shall be reformed so that it is in compliance with the law and reflects the purpose of the original provision as closely as possible.
  1. Term and Renewal of Your Maskcara Business. The term of this Agreement is month-to-month. It automatically renews for an additional month upon the Artist’s payment of his/her Maskcara replicated website fee. A Artist’s failure to pay his/her replicated website fee will result in the suspension of his/her Maskcara business until the fee is paid.  If the replicated website fee is not paid for two consecutive months, the Artist’s Maskcara business will be permanently cancelled. Monthly renewal fees are optional in North Dakota.
  1. Compliance With the Law. Artists must not engage in any act or omission that constitutes a violation of the law. 
  1. General Conduct. Artists shall safeguard and promote the good reputation of Maskcara and its products, and must avoid all deceptive, misleading, unethical or immoral conduct or practices, and must exhibit high moral character in their personal and professional conduct. Artists shall not engage in any conduct that may damage the Company’s goodwill or reputation. While it is impossible to specify all misconduct that would be contrary to this policy, and the following list is not a limitation on the standards of conduct to which Artists must adhere pursuant to this policy, the following standards specifically apply to Artists’ activities:
  • Artists must conspicuously identify themselves as an independent Maskcara Artist in all advertising, telephone directory listings, promotional material, social media postings, websites, and other forums in which they promote Maskcara’s products, services and/or the Maskcara business. Artists are responsible for the content of all material that they produce and all of their postings on any social media site, as well as all posting on any social media site that they own, operate, or control. 
  • Deceptive conduct is always prohibited.  Artists must ensure that their statements are truthful, fair, accurate, and are not misleading in any fashion;
  • Artists may not make any social media postings, or link to or from any postings or other material that is sexually explicit, obscene, pornographic, offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), is graphically violent, is solicitous of any unlawful behavior, that engages in personal attacks on any individual, group, or entity, or is in violation of any intellectual property rights of the Company or any third party.
  • If a Artist’s Maskcara business is cancelled for any reason, the Artist must discontinue using the Maskcara name, and all other Maskcara intellectual property, and all derivatives of such intellectual property, in postings on all Social Media, websites, or other promotional material. 
  • Artists may not represent or imply that any state or federal government official, agency, or body has approved or endorses Maskcara, its program, or products.
  • Artists must not engage in any illegal, fraudulent, deceptive, or manipulative conduct in the course of their business or their personal lives that, in the Company’s sole discretion, could damage the Company’s reputation or the culture that exists within the field sales force.
  1. Social Media. In addition to meeting all other requirements specified in these Policies, should a Artist utilize any form of social media, including but not limited to blogs, Facebook, Twitter, Linkedin, YouTube, or Pinterest, the Artist agrees to each of the following:
  • No product sales or enrollments may occur on any social media site. To generate sales, a social media site must link only to the Artist’s Maskcara replicated website, Maskcara’s corporate website or an official Maskcara corporate social media page. 
  • It is each Artist’s responsibility to follow the social media site’s terms of use. If the social media site does not allow its site to be used for commercial activity, you must abide by the site’s terms of use as well as all other rules of the site.
  • Any social media site that is directly or indirectly operated or controlled by a Artist that is used to discuss or promote Maskcara’s products, or the Maskcara opportunity may not link to any website, social media site, or site of any other nature that discusses the products, services, or business of any direct selling company other than the Artist’s Maskcara replicated website.
  • During the term of this Agreement a Artist may not use any social media site on which they discuss or promote, or have discussed or promoted, the Maskcara business or Maskcara’s products to directly or indirectly solicit Maskcara Artists for another direct selling or network marketing program (collectively, “direct selling”). In furtherance of this provision, a Artist shall not take any action that may reasonably be foreseen to result in drawing an inquiry from other Artists relating to the Artist’s other direct selling business activities.
  • A Artist may post or “pin” photographs of Maskcara products on a social media site, but only photos that are provided by Maskcara and downloaded from the Artist’s Back-Office may be used. 
  • If a Artist creates a business profile page on any social media site that promotes or relates to Maskcara, its products, or opportunity, the business profile page must relate exclusively to the Artist’s Maskcara business and Maskcara products. If the Artist’s Maskcara business is cancelled for any reason or if the Artist becomes inactive, the Artist must deactivate the business profile page.
  1. Artist Created Marketing Methods, Advertising, and Promotional Material (Sales Tools). Artists must use only Maskcara approved sales aids, advertising, promotional materials, and marketing methods (collectively “Sales Tools”) when promoting the Maskcara business or Maskcara’s products or services.  These materials are available in the Document Library of Artist’s Back-Office. 

Approved Sales Tools will be posted in the Document Library section of Artists’ Back-Offices and will be made available to all Artists free of charge. The Artist who submitted the Sales Tool to the Company waives all claims to remuneration for such use and grants Maskcara an irrevocable license to use the Sales Tools as the Company deems appropriate.

  1. Trademarks and Copyrights. The name “Maskcara” and other names as may be adopted by the Company are proprietary trade names, trademarks and service marks of Maskcara. The Company grants Artists a limited license to use its trademarks and trade names in promotional media for so long as the Artist’s Agreement is in effect. Upon cancellation of a Artist’s Agreement for any reason, his or her license shall immediately expire and the Artist shall immediately discontinue all use of the Company’s trademarks and trade names. Under no circumstances may a Artist use any of Maskcara’s trademarks or trade names in any email address, website domain name, social media handle, social media name or address, or in any unapproved Sales Tools. 

Maskcara commonly puts on live and recorded events as well as webinars and telephone conference calls. During these events Company executives, Artists, and guests appear and speak. The content of such events is copyrighted material that is owned exclusively by the Company. Artists may not record any company functions for any reason, whether such event is live, a webinar, via conference call, or delivered through any other medium.

In addition, company produced Sales Tools, videos, audios, podcasts, and printed material is also copyrighted. Artists shall not copy any such materials for their personal or business use without the Company’s prior written approval.

  1. Artist Web Sites. Artists may not create their own websites to promote their Maskcara business or Maskcara’s products and services. However, official Maskcara supplied replicated websites are the only online forum through which Maskcara products may be sold and new Maskcara Artist enrollments may be transacted (prohibited online forums include, but are not limited to, Artists’ external websites, online auctions and classified listings).

Maskcara reserves the right to rescind approval for any approved external web site, and Artists waive all claims against Maskcara, its officers, directors, owners, employees, and agents for damages, expenses, costs, or remuneration of any other nature arising from or relating to such rescission.

  1. Retail Outlets. Maskcara’s business model calls for its products to be sold through person-to-person contact. In an effort to reinforce this method of selling and to help provide a standard of fairness for all Artists, Artists agree that they will not sell Maskcara products or literature, or in any other way promote the Maskcara opportunity or products in any retail, wholesale, warehouse, or discount establishment or service related establishment. Notwithstanding the foregoing, Artists may display and sell Maskcara products at professional trade shows.
  1. Change of Sponsor. The only means by which a Artist may legitimately change his/her sponsor are by:   
  1. Voluntarily canceling his/her Maskcara business in writing and remaining inactive for six (6) full calendar months. Following the six calendar month period of inactivity, the former Artist may reapply under a new sponsor. The Artist will lose all rights to his/her former downline organization upon his/her cancellation; or
  2. Submitting a written request to the company at help@masckaracosmetics.com for a change of sponsor. The Artist requesting the transfer must also submit written and signed transfer authorization forms from his/her immediate 3 upline Artists.   
  1. Waiver of Claims. In cases wherein a Artist improperly changes his/her sponsor, Maskcara reserves the sole and exclusive right to determine the final disposition of the downline organization that was developed by the Artist in his/her second line of sponsorship. ARTISTS WAIVE ANY AND ALL CLAIMS AGAINST MASKCARA, ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND AGENTS THAT RELATE TO OR ARISE FROM MASKCARA’S DECISION REGARDING THE DISPOSITION OF ANY DOWNLINE ORGANIZATION THAT DEVELOPS BELOW A ARTIST WHO HAS IMPROPERLY CHANGED HIS/HER SPONSOR.   
  1. Income Claims. When presenting or discussing the Maskcara opportunity or Compensation Plan to a prospective Artist, Artists may not make income projections, income claims, income testimonials, or disclose their Maskcara income (including, but not limited to, the showing of checks, copies of checks, bank statements, or tax records), or the income of any other Maskcara Artist.  Nor may Artists make “lifestyle” income claims. A “lifestyle” income claim is a statement or depiction that infers or states that the Artist is able to enjoy a luxurious or successful lifestyle due to the income they earn from their Maskcara business. Examples of prohibited lifestyle claims include, but are not limited to, representations (either through audio or visual medium) that a Artist was able to quit his/her job, acquire expensive or luxury material possessions, or travel to exotic or expensive destinations.
  1. Compensation Plan Claims. When presenting or discussing the Maskcara compensation plan, you must make it clear to prospects that financial success in Maskcara requires commitment, effort, and sales skill.  Conversely, you must never represent that one can be successful without diligently applying themselves. Examples of misrepresentations in this area include, but are not limited to:
  • It’s a turnkey system.
  • The system will do the work for you.
  • Just get in and your downline will build through spillover.
  • Just join and I’ll build your downline for you.
  • The company does all the work for you.
  • You don’t have to sell anything.
  • All you have to do is buy your products every month.

The above are just examples of improper representations about the compensation plan. It is important that you do not make these, or any other representations, that could lead a prospect to believe that they can be successful as a Artist without commitment, effort, and sales skill. 

  1. Media Inquiries.  Artists must not interact with the media regarding the Maskcara business or products. All inquiries from the media, including radio, television, print, online, or any other medium, shall be directed to Maskcara’s marketing department.   
  1. Nonsolicitation. Maskcara Artists are free to participate in other network marketing programs. However, during the term of this Agreement, with the exception of a Artist’s personally sponsored downline Artists, a Artist may not directly or indirectly Recruit other Maskcara Artists for any other network marketing business. The term “Recruit” means the direct or indirect, actual or attempted, sponsorship, solicitation, enrollment, encouragement, or effort to influence in any other way, another Maskcara Artist to enroll or participate in another network marketing opportunity.    

If a Artist is engaged in other non-Maskcara business or Network Marketing program, it is the responsibility of the Artist to ensure that his or her Maskcara business is operated entirely separate and apart from all other businesses and/or Network Marketing programs. To this end, the Artist must not:

  • Display Maskcara promotional material, sales aids, or products with or in the same location as, any non-Maskcara promotional material or sales aids, products or services (Pinterest and similar social media sites are exempt from this policy). 
  • Offer the Maskcara opportunity, products or services to prospective or existing customers or Artists in conjunction with any non-Maskcara program, opportunity or products.

  

  • Offer, discuss, or display any non-Maskcara opportunity, products, services or opportunity at any Maskcara-related trunk-show, meeting, seminar, convention, webinar, teleconference, or other function.

Maskcara and Artist agree that any violation of this policy shall cause Maskcara irreparable harm for which there is no adequate remedy at law, and the injury to Maskcara shall outweigh the potential injury to Artist, and therefore Maskcara shall be entitled to emergency and permanent injunctive relief to prevent further violations of this policy.

  1. Confidential Information. “Confidential Information” includes, but is not limited to, the identities, contact information, and/or sales information relating to Maskcara’s Artists and/or customers: (a) that is contained in or derived from any Artists’ respective Back-Office; (b) that is derived from any reports issued by Maskcara to Artists to assist them in operating and managing their Maskcara business; and/or (c) to which a Artist would not have access or would not have acquired but for his/her affiliation with Maskcara. Confidential Information constitutes proprietary business trade secrets belonging exclusively to Maskcara and is provided to Artists in strict confidence. Confidential Information shall not be directly or indirectly disclosed to any third party nor used for any purpose other than Artist’s use in building and managing his/her Independent Maskcara business.    

Any violation of this policy shall cause Maskcara irreparable harm for which there is no adequate remedy at law. The parties further agree that the harm to Maskcara shall outweigh any harm to Artist if injunctive relief is awarded to the Company. Maskcara shall therefore be entitled to immediate and permanent equitable relief to prevent further violations of this policy.

  1. Product Inventory & Bonus Buying.  Artists may not carry an inventory of Maskcara products for resale. All products are direct shipped from the Company to the customer. In addition, bonus buying is strictly prohibited. Bonus buying is the any mechanism or artifice to qualify for rank advancement or maintenance, incentives, prizes, commissions or bonuses that are not driven by bona fide product purchases by end user consumers for actual use.    
  1. Limitations on Artist and Household Businesses. Artists may own, operate, control, or have an interest in, only one Maskcara business, and there may be only one Maskcara business in a household. A “household” is defined as spouses or couples, and dependent children of one or both spouses or couples, living in the same home of the spouses or member of the couple, as well as dependent children of either spouse or member of the couple, while attending school away from home.
  1. Actions of Affiliated Parties and Household Members. The term “Business Entity” shall mean any corporation, partnership, limited liability company, trust or other entity that owns or operates a Maskcara independent business. The term “Affiliated Party” shall mean any individual, partnership, trust, limited liability company, or other entity that has an ownership interest in, or management responsibility for, a Business Entity.

A Business Entity and each Affiliated Party must comply with the Agreement. If a Business Entity and/or any Affiliated Party violates the Agreement, Maskcara may take disciplinary action against the Business Entity and/or against any or all of the Affiliated Parties. In addition, if a household family member of a Artist engages in conduct that would be a violation of the Agreement, the conduct of the household family member shall be imputed to the Artist.

  1. Tampering With Product Packaging.  Maskcara products must be sold in their original packaging; Artists shall not alter the original packaging or labeling.
  1. Negative Comments. Complaints and concerns about Maskcara should be directed to the customer Service Department. Artists must not disparage, demean, or make negative remarks to third parties or other Artists about Maskcara, its owners, officers, directors, management, other Maskcara Artists, the Marketing and Compensation plan, or Maskcara’s directors, officers, or employees. Disputes or disagreements between any Artist and Maskcara shall be resolved through the dispute resolution process, and the Company and Artists agree specifically not to demean, discredit, or criticize one another on the Internet or any other public forum.     
  1. Sales Receipts. Artists must provide their retail customers that purchase services or merchandise directly from the Artist with two copies of an official Maskcara sales receipt at the time of the sale and advise them of the three day right to rescind the transaction, which is set forth on the receipt. Artists must maintain all retail sales receipts for a period of two years and furnish them to Maskcara at the Company’s request. Sales receipts can be downloaded in PDF format from www.Maskcara.com/forms. Retail customers who purchase from a Artist’s Replicated Website need not be provided with a sales receipt as the receipt will automatically be sent by the Company via email at the time the order is placed.   
  1. Adjustment to Bonuses and Commissions. Compensation stemming from product sales is fully earned when the applicable return, repurchase, and chargeback periods applicable to product sales have all expired.  When a product is returned to Maskcara for a refund or is repurchased by the Company, or a chargeback occurs, the compensation attributable to the returned or repurchased product(s) will recovered by the Company. Unearned compensation will be deducted, in the month in which the refund is issued or the chargeback occurs, and continuing every pay period thereafter until the commission is recovered, from the upline Artists who received bonuses and commissions on the sales of the refunded products.

Maskcara reserves the right to withhold or reduce any Artist’s compensation as it deems necessary to comply with any garnishment or court order directing Maskcara to retain, hold, or redirect such compensation to a third party.

  1. Return of Merchandise and Sales Aids by Artists Upon Cancellation. Upon cancellation of a Artist’s Agreement, the Artist may return products and Sales Tools that he or she personally purchased from Maskcara within one year prior to the date of cancellation (the one year limitation shall not apply to residents of Maryland, Massachusetts, Wyoming and Puerto Rico) so long as the goods are in Resalable condition. Upon the Company’s receipt of returned goods and confirmation that they are in Resalable condition, the Artist will be reimbursed 90% of the net cost of the original purchase price(s). Shipping and handling charges will not be refunded. If the purchases were made through a credit card, the refund will be credited back to the same account. Goods are “Resalable” if they are unopened and unused and packaging and labeling has not been altered or damaged.  Any merchandise that is clearly identified at the time of sale as nonreturnable, closeout, discontinued, or as a seasonal item, is not Resalable. Back Office and Replicated website fees are not refundable.
  1. Order Cancellation and Satisfaction Guarantee. Artists shall notify their customers that they have three business days (5 business days for Alaska residents, 15 days for residents of North Dakota over the age of 65. Saturday is a business day, Sundays and legal holidays are not business days) within which to cancel their purchase and receive a full refund upon return of the products in substantially as good condition as when they were delivered.

In addition, Maskcara offers a money back guarantee on products returned within 30 days from the date of sale, less a 10% restocking fee. Products shipped directly to the customer by the Company must be returned to the Company and a refund will be issued to the customer by the Company.

Customers may exchange products for up to 90 days from the date of sale by returning the merchandise to the Company with a request for an exchange. The Customer’s credit card will be debited or credited for the balance of any difference in the price of the merchandise, plus additional shipping charges.

This product satisfaction guarantee does not apply to products damaged by abuse or misuse, and shipping costs are not refundable. Artists shall disclose the terms of the return and exchange policy to her customers at the time of sale.

If a Artist returns more than $2,500 for a refund in any 12 consecutive month period, the request will constitute the Artist’s voluntary cancellation of his/her Artist Agreement, and the refund will be processed as an inventory repurchase and the Artist’s Maskcara business will be cancelled.

  1. Montana Residents. A Montana resident may cancel his or her Artist Agreement within 15 days from the date of enrollment, and may return his or her Artist Kit and any Sales Tools and products he or she purchased from the Company for a full refund within such time period. 
  1. Disciplinary Sanctions. Violation of the Agreement, any illegal, fraudulent, deceptive or unethical business conduct, or any act or omission by a Artist that the Company reasonably believes may damage its reputation or goodwill, may result in the suspension or termination of the Artist’s Maskcara business, and any other disciplinary measure that Maskcara deems appropriate to address the misconduct. In situations deemed appropriate by Maskcara, the Company may institute legal proceedings for monetary and/or equitable relief. 
  1. Indemnification. Artists agree to indemnify Maskcara for any and all costs, expenses, consumer reimbursements, fines, sanctions, damages, settlements or payments of any other nature that Maskcara incurs resulting from or relating to any act or omission by Artist that is illegal, fraudulent, deceptive, negligent, unethical, or in violation of the Agreement. Maskcara may elect to exercise its indemnification rights through withholding any compensation due the Artist. This right of setoff shall not constitute Maskcara’s exclusive means of recovering or collecting funds due Maskcara pursuant to its right to indemnification.   
  1. Effect of Cancellation. A Artist whose business is cancelled for any reason will lose all Artist rights, benefits and privileges. This includes the right to represent yourself self as an Independent Maskcara Artist, to sell Maskcara products and services and the right to receive commissions, bonuses, or other income resulting from his/her own sales and the sales and other activities of the Artist and the Artist’s former downline sales organization. There is no whole or partial refund for Artist Kit fees or renewal fees if a Artist’s business is cancelled.
  1. Voluntary Cancellation. A participant in this network-marketing plan has a right to cancel at any time, regardless of reason.  Cancellation must be submitted in writing to the Company at its principal business address or by cancelling his/her business through the Back-Office. The written notice must include the Artist’s signature, printed name, address, and Artist I.D. Number. If a Artist is also on the Autoship program, the Artist’s Autoship order shall continue unless the Artist also specifically requests that his or her Autoship Agreement also be canceled. A Artist may also voluntarily cancel his/her Maskcara business by failing to renew the Agreement on its monthly/annual anniversary date, by withdrawing consent to contract electronically.
  1. Cancellation for Inactivity. If a Artist fails to generate any Personal Retail Volume for 12 consecutive months, his/her Artist Agreement and Maskcara business will be cancelled for inactivity.
  1. Business Transfers. Artists in good standing who wish to sell or transfer their business must receive Maskcara’s prior written approval before the business may be transferred. Requests to transfer a business must be submitted in writing to the Compliance Department at help@maskcaracosmetics.com. It is within Maskcara’s discretion whether to allow a business sale or transfer, but such authorization shall not be unreasonably withheld. However, no business that is on disciplinary probation, suspension, or under disciplinary investigation may be transferred unless and until the disciplinary matter is resolved. Prior to transferring a business to a third party, the Artist must offer Maskcara the right of first refusal to purchase the business on the same terms as negotiated with a third party. The Company shall have ten days to exercise its right of first refusal.
  1. Transfer Upon a Artist’s Death. A Artist may devise his/her business to his/her heirs. Because Maskcara cannot divide commissions among multiple beneficiaries or transferees, the beneficiaries or transferees must form a business entity (corporation, LLC, partnership, etc.), and Maskcara will transfer the business and issue commissions to the business entity. In the case of a business transfer via testamentary instrument, the beneficiary of the business must provide Maskcara with certified letters testamentary and written instructions of the trustee of the estate, or an order of the court, that provides direction on the proper disposition of the business. The beneficiary must also execute and submit to the Company a Maskcara Artist Agreement within 30 days from the date on which the business is transferred by the estate to the beneficiary or the business will be cancelled.
  1. Business Distribution Upon Divorce.  Maskcara is not able to divide commissions among multiple parties, nor is it able to divide a downline organization. Consequently, in divorce cases, any settlement or divorce decree must award the business in its entirety to one party. Maskcara will recognize as the owner of the business the former spouse to who is awarded the business pursuant to a legally binding settlement agreement or decree of the court. The former spouse who receives the Maskcara business must also execute and submit a Maskcara Artist Agreement within 30 days from the date on which the divorce becomes final or the business will be cancelled.
  1. Dissolution of a Business Entity. Maskcara is not able to divide commissions among multiple parties, nor is it able to divide a downline organization. Consequently, in the event that a business entity that operates a Maskcara business dissolves, the owners of the business entity must instruct the Company on the identity of the proper party who is to receive the business. The Maskcara business must be awarded to a single individual or entity that was previously recognized by the Company as an owner of the business entity; the Company cannot divide the business among multiple parties or issue separate commission payments. If the business entity wishes to sell or transfer its Maskcara business, it must do so pursuant to Policy 35. In addition, the recipient of the Maskcara business must also execute and submit a Maskcara Artist Agreement to the Company within 30 days from the date of the dissolution of the business entity or the Maskcara business will be cancelled.
  1. International Activities. Artists may not sell Maskcara products in any international market, or conduct business activities of any nature, in any foreign country that the Company has not announced is officially open for business.   
  1. Dispute Resolution. For claims seeking $10,000.00 or more that arise from or relate to the Agreement, prior to filing as set forth below, the parties shall meet in good faith and attempt to resolve such dispute through confidential non-binding mediation. One individual who is mutually acceptable to the parties shall be appointed as mediator. If the Parties cannot agree on a mediator, the complaining party shall request a mediator be appointed by the American Arbitration Association (“AAA”). The mediation shall occur within 60 days from the date on which the mediator is appointed. The mediator’s fees and costs, as well as the costs of holding and conducting the mediation, shall be divided equally between the parties. Each party shall pay its portion of the anticipated shared fees and costs at least 10 days in advance of the mediation. Each party shall pay its own attorney’s fees, costs, and individual expenses associated with conducting and attending the mediation. Mediation shall be held in California and shall last no more than two business days.   

Except as otherwise provided in the Agreement, any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled through confidential arbitration. The Parties waive rights to trial by jury or to any court. This arbitration provision applies to claims that were not successfully resolved through the foregoing mediation process as well as claims for less than $10,000.00 not subject to the mediation requirement. The arbitration shall be filed with, and administered by, the American Arbitration Association in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website at www.adr.org. Copies of the AAA’s Commercial Arbitration Rules and Mediation Procedures will also be emailed to Artists upon request to Maskcara’s customer Service Department. Notwithstanding the rules of the AAA, unless otherwise stipulated by the Parties, the following shall apply to all Arbitration actions:

  • The Federal Rules of Evidence shall apply in all cases; 
  • The Parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;
  • The Parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
  • The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of California, without regard to principles of conflicts of laws, shall govern all other matters relating to or arising from the Agreement,
  • The arbitration hearing shall commence no later than 365 days from the date on which the arbitrator is appointed, and shall last no more than five business days;
  • The Parties shall be allotted equal time to present their respective cases;
  • The arbitration shall be brought on an individual basis and not as part of a class or consolidated action.

All arbitration proceedings shall be held in Carpinteria, California. There shall be one arbitrator selected from the panel that the AAA provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court to which the Parties have consented to jurisdiction as set forth in the Agreement. This agreement to arbitrate shall survive the cancellation or termination of the Agreement. 

The parties, their respective agents and attorneys, and the arbitrator shall maintain the confidentiality of the arbitration proceedings and shall not disclose to any third party:

  • The substance of, facts underlying, or basis for, the controversy, dispute, or claim;
  • The substance or content of any settlement offer or settlement discussions or offers associated with the dispute;
  • The pleadings, the content of any pleadings, and exhibits to the pleadings, filed in any arbitration proceeding;
  • The content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in arbitration;
  • The terms or amount of any arbitration award;
  • The rulings of the arbitrator on the procedural and/or substantive issues involved in the case.

If a Party violates its confidentiality obligations under this arbitration policy, the nonbreaching party shall incur significant damages to its reputation and goodwill that shall not be readily calculable. Therefore, if a Party, its attorneys or agents breach the confidentiality provisions of this policy, the nonbreaching Party shall be entitled to liquidated damages in the amount of $25,000.00 per violation. Every disclosure of each allegation, pleading, claim or other prohibited disclosure shall constitute a separate violation. The Parties agree that this liquidated damage amount is reasonable and waive all claims and defenses that it constitutes a penalty.

Nothing in the Agreement shall prevent either party from applying to and obtaining from any court to which the Parties have consented to jurisdiction as set forth in the Agreement a temporary restraining order, preliminary or permanent injunction, or other equitable relief to safeguard and protect its intellectual property rights, trade secrets, and/or confidential information, including but not limited to enforcement of its rights under the Nonsolicitation provisions of the Agreement.   

  1. Liquidated Damages. In any case which arises from or relates to the wrongful termination of a Artist’s Agreement and/or independent business, the parties agree that damages will be extremely difficult to ascertain. Therefore, the parties stipulate that if the involuntary termination of a Artist’s Agreement and/or loss of their independent business is proven and held to be wrongful under any theory of law, Artist’s sole remedy shall be liquidated damages calculated as follows:
  • For Artists at the “Paid As” rank Consultant through Advocate, liquidated damages shall be in the amount of his/her gross compensation that he/she earned pursuant to Maskcara’s Compensation Plan in the twelve (12) months immediately preceding the termination.   
  • For Artists at the “Paid As” rank Leader through Director, liquidated damages shall be in the amount of his/her gross compensation that he/she earned pursuant to Maskcara’s Compensation Plan in the eighteen (18) months immediately preceding the termination.   
  • For Artists at the “Paid As” rank Executive through National Executive, liquidated damages shall be in the amount of his/her gross compensation that he/she earned pursuant to Maskcara’s Compensation Plan in the twenty-four (24) months immediately preceding the termination. 

Gross compensation shall include commissions and bonuses earned by the Artist pursuant to Maskcara’s Compensation Plan as well as retail profits earned by Artist for the sale of Maskcara merchandise. However, retail profits derived from the sale of merchandise that a Artist claims to have sold from her inventory must be substantiated by providing the Company with true and accurate copies of fully and properly completed retail receipts provided by Artist to customers at the time of the sale.

The Parties agree that the foregoing liquidated damage schedule is fair and reasonable. 

A Artist’s “Paid As” rank is the rank or title at which they actually qualified to earn compensation under the Maskcara Compensation Plan during a pay-period. For purposes of this Policy, the relevant pay-period to determine a Artist’s “Paid As” rank is the pay-period during which the Artist’s business is placed on suspension or terminated, whichever occurs first. The “Paid As” rank differs from the “Title Rank,” which is the highest title or rank that a Artist has ever achieved under the Maskcara Compensation Plan.

  1. Damage Waiver. In any action arising from or relating to the Agreement, the parties waive all claims for incidental and/or consequential damages, even if the other party has been apprised of the likelihood of such damage. The parties further waive all claims to exemplary and punitive damages.    
  1. Governing Law, Jurisdiction and Venue. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Santa Barbara County, State of California, or the United States District Court for the Central District of California. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of California, without regard to principals of conflicts of laws, shall govern all other matters relating to or arising from the Agreement.     
  1. Class Action Waiver. Any action brought by a Artist shall be brought on an individual basis, and not on behalf of a class or on a consolidated basis. Artists waive all rights to bring an action against Maskcara, its officers, owners, directors, employees and agents as a class or consolidated action.   
  1. Louisiana Residents. Notwithstanding the foregoing, and the arbitration provision set forth above, residents of the State of Louisiana shall be entitled to bring an action against Maskcara in their home forum and pursuant to Louisiana law.    
  1. Handling Personal Information. As a Artist, you will receive Personal Information from and about prospective Artists, customers and other individuals.  Keeping their Personal Information secure not only helps to ensure your compliance with the law, but it also helps you to maintain current customers’ and potential customers’ trust, which is an important factor in your success. Personal Information is information that identifies, or permits you to contact, an individual. It includes a customer’s, potential customers, or other individual’s name, address, email address, phone number, credit card information, and other information associated with these details, such as purchases.

When COLLECTING, USING & Disclosing PERSONAL INFORMATION

Give the customer notice.  Customers want to know why you are collecting their Personal Information and what you plan to do with it, so tell them what you are collecting, why and with whom you are going to share it. Tell them this before or at the time that you collect their Personal Information, and then be sure that you use and share Personal Information only in the ways you promised.

Collect only what you need. Collect only the Personal Information that you really need.  Review the forms that you use to collect Personal Information, and revise them to remove fields for information you do not need. Less is more. For example, don’t collect a credit or debit card number unless your customer actually makes a purchase.

Give the customer control. Give customers a choice about how you communicate with them.  For instance, find out if a customer wants to receive promotions and other marketing messages from you and, if so, whether he or she would prefer to receive them by email, phone or another method of communication. Respect the customer’s wishes. If, for example, a customer tells you that he or she doesn’t want to receive emails, then find another way to communicate with him or her.

Stay up-to-date. Keep the customers’ Personal Information up-to-date. Remind them to let you know if their Personal Information changes. Keeping your contacts current helps you to stay in touch with them.

Your Back-Office. Your Back-Office may have information relating to your downline Artist’s confidential information. You must not show this information to anyone, nor may you share your Back-Office access with anyone.

Share only if necessary.  Don’t share a customers’ Personal Information unless you have a real business reason to do so—and then share only what is necessary, and no other information, and make sure that the other person agrees to use the Personal Information only in the ways you have agreed.

Be careful.  A customer’s information is a valuable asset. Don’t communicate it to the general public or to anyone who doesn’t have a legitimate need for it. Protect it from unauthorized access or disclosure. 

Dispose of Personal Information responsibly. When you no longer need a customer’s Personal Information, stop using it.  Dispose of it in a way that makes it unreadable, such as by shredding paper documents.

Be very careful with debit and credit card numbers and other sensitive Personal Information. If sensitive Personal Information falls into the wrong hands, customers could become the victim of fraud or identity theft.  Consider these steps to help reduce that risk:

    • Pay attention to your surroundings and use good judgment whenever you need to discuss or transmit sensitive Personal Information;
    • Do not share (or ask a customer to share) sensitive Personal Information, including payment information, in an unsecure way, such as by email;
    • Keep sensitive Personal Information in a secure place, such as a locked drawer.  Do not leave it lying around where someone could see or take it; 
    • Use similar safeguards if you keep sensitive Personal Information on your computer.  For example, use passwords that are not easy to guess, install virus protections, and password protect documents that contain sensitive Personal Information;
    • Avoid storing Personal Information on your laptop or another portable device that could be lost or stolen, unless the device is encrypted; and
    • Unless you have a legitimate business need, do not keep sensitive Personal Information.  Keeping it for longer than you need it creates unnecessary risk.

 

 

Maskcara BeautyTM,

Independent Artist Replicated Website and BackOffice Terms of Use

Your use of this Maskcara Beauty (“Maskcara Beauty,” “Company,” “we,” “our,” “Our,” “We,” “us,” or “Us.”) website and/or backoffice (the “Site”) is subject to the fol lowing terms of use. If you are a visitor and are not an Maskcara Beauty Artist, and you do not agree to these terms of use, your sole recourse is to leave the Site. If you are an Maskcara Beauty Artist and you do not agree to these terms of use, your sole re course is to cancel your Maskcara Beauty Independent Artist Agreement and not to use the Site. If you are an Maskcara Beauty Artist, violation of these Terms of Use may re sult in disciplinary action against your Maskcara Beauty Business as set forth in Maskcara Beauty’s Policies and Procedures.

  1. Special terms apply to some services offered on your Site, such as subscriptionbased services, product purchases, rules for particular contests or sweepstakes or other features or activities. These terms will be posted in connection with the applicable service. Any such terms are in addition to these Terms of Use and, in the event of a conflict, prevail over these Terms of Use.
  2. The Company may amend these Terms of Use at its discretion. Amendments shall be come effective 30 days after publication of notice is posted under the Terms of Use tab to this website. Amendments shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The Company may change the Site or delete Con tent or features of the Site at any time, in any way, for any or no reason at our discretion.
  3. All information, materials, functions and other Site content (including Submissions as de fined in Paragraph 8) provided on the Site (collectively “Content”), such as text, graphics, images, etc., is our property or the property of our licensors and is protected by U.S. and international copyright laws. The collection, arrangement and assembly of all Content on the Site is the exclusive property of the Company and is protected by U.S. and interna tional copyright laws. Except as stated herein or as otherwise provided in an express au thorization from us, no material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way. Any unauthorized use of any ma terial contained in the Site is strictly prohibited.
  4. Unless otherwise noted, the trademarks, service marks, trade dress, trade names, and log os (collectively “Trademarks”) used and displayed on the Site are the Company’s regis tered and unregistered Trademarks and the Trademarks of the Company’s licensors. Use of our Trademarks, if allowed, must adhere to the Company’s Policies and Procedures re lating to Trademarks.
  5. Maskcara Beauty grants you a limited license to access and make personal use of the Site and the Content, subject to these Terms of Use. Neither the Site nor any portion of the Site or any Content may be reproduced, duplicated, copied, sold, resold or otherwise ex ploited for any commercial purpose that is not expressly permitted by the Company in

  

writing.

  1. Links from the Site to third party web sites may be provided by the Company. If so, they are provided solely as a convenience to you If you use such links, you will leave the Site. The Company has not reviewed all such third party sites (if any) and does not control, and is not responsible for, any of these web sites and their content. The Company does not endorse or make any representations about such web sites or any information or mate rials found there, or any results that may be obtained from using them. If you access any third party web sites linked from the Site, you do so at your own risk.
  2. If you place a link to the Site, the site from which you link:
    • Shall not imply, either directly or indirectly, that Maskcara Beauty is endorsing its products;
    • Shall comply with the provisions of Section 11;
    • Shall not use any of the Company’s Trademarks or the Trademarks of our licen
      sors;
    • Shall not contain content or material that could be construed as offensive, contro
      versial or distasteful and must only contain content that is appropriate for all age
      groups;
    • Shall not disparage Maskcara Beauty, its officers, agents, employees, products, or
      services in any way or otherwise negatively affect or harm its/their reputation and
      goodwill;
    • Shall not present false or misleading information about the Company or the Maskcara Beauty opportunity;
    • Shall not misrepresent any relationship with Maskcara Beauty;
    • Shall not replicate in any manner any content in the Site; and
    • Shall not create a browser or border environment around Site material.
  3. For purposes of these Terms of Use, the word “Submissions” means text, content, adver tisements, promotional material, graphics, audios, text, messages, ideas, concepts, sug gestions, artwork, photographs, drawings, videos, audiovisual works, your and/or other persons’ names, likenesses, voices, usernames, profiles, actions, appearances, perfor mances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate, advertise, or otherwise dis tribute on or through the Site.
    Maskcara Beauty is pleased to receive your comments, suggestions, and Submissions re garding the Site, our products and services, and our opportunity. If you transmit to Maskcara Beauty, post, or upload any Submissions to or through the Site, you grant the Company and its affiliates a nonexclusive, royaltyfree, perpetual and irrevocable right to use, re produce, modify, adapt, publish, translate, distribute and incorporate such Submissions and the names identified on the Submissions throughout the world in any media for any and all commercial and noncommercial purposes.
    By communicating a Submission to the Company, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct set forth in

Paragraph 11 below and all other requirements of these Terms of Use and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these Terms of Use.

  1. Some services on the Site permit or require you to create an account to participate in or to secure additional benefits. You agree to provide, maintain and update true, accurate, cur rent and complete information about yourself as prompted by our registration processes. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify the Company of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Site.
  2. “Public Forum” means an area or feature offered as part of the Site that offers the oppor tunity for users to distribute Submissions for viewing by one or more Site users, includ ing, but not limited to, a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, or email function. You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a Public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk. You are and shall remain solely responsible for the Submissions you distribute on or through the Site under your username or otherwise by you in any Public Forum and for the conse quences of submitting and posting the same. We have no duty to monitor any Public Fo rum.You should be skeptical about information provided by others, and you acknowledge that the use of any Submission posted in any Public Forum is at your own risk. Maskcara Beauty is not responsible for, and does not endorse, the opinions, advice or recommen dations posted or sent by users in any Public Forum, and the Company specifically dis claims any and all liability in connection therewith.
  3. You agree that you will not upload, post, or otherwise distribute, or link to or from the Site any Submission, Content, or material that:

• Promotes the sale of any nonMaskcara Beauty’s products or services, or directly or in directly promotes or advertises any nonMaskcara Beauty business opportunity;
• is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is profane, violent, vulgar, obscene, pornographic, or otherwise sexually explicit; (d) otherwise harms or can reasonably be expected to harm any person or entity; (e) is libelous, slan derous, defamatory, or violates the law.

• is illegal or encourages or advocates illegal activity or the discussion of illegal activi ties with the intent to commit them, including a Submission that is, or represents an at tempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in ob scene or stolen material, drug dealing and/or drug use, harassment, theft, or conspiracy to commit any criminal activity;

• infringes or violates any right of a third party including: (a) copyright, patent, trade mark, trade secret or other proprietary or contractual rights; (b) right of privacy (specifi cally, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;

• contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Site;
• does not generally pertain to the designated topic or theme of the relevant Public Fo rum or violates any specific restrictions applicable to a Public Forum; or

• is antisocial, disruptive, or destructive, including “flaming”, “spamming”, “flooding”, “trolling”, and “griefing”, as those terms are commonly understood and used on the In ternet;
• violates Maskcara Beauty’s Policies and Procedures.

We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of the Agreement, and, as between you and Po etic Xchange, you hereby assume all risk of harm or injury resulting from any such lack of compliance.

  1. Because any activities that occur under your username and/or login ID are your responsi bility it is important for you to keep your information secure. Notify the Company imme diately if you believe that someone has used your username or login ID without your au thorization.
  2. Maskcara Beauty reserves the right, but disclaims any obligation or responsibility, to (a) refuse to post, or remove, any Submission from the Site that violates these Terms of Use; and (b) identify any user to third parties; and/or (c) disclose to third parties any Submis sion or personally identifiable information when we believe in good faith that such identi fication or disclosure will either: (i) facilitate compliance with laws, including but not limited to, compliance with a court order or subpoena, or (ii) help to enforce the Agree ment and/or protect the safety or security of any person or property, including the Site. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.
  3. Maskcara Beauty may suspend or terminate your ability to use the Site, or any portion of the Site, for failure to comply with these Terms of Use, for breach of your Independent Artist Agreement, or as the Company deems necessary to protect its business or intel lectual property interests. Upon the cancellation of your Independent Maskcara Beauty business for any reason, your access to the Site shall be terminated.
  4. The Site is intended for viewing and use in the United States and countries which the Company has designated are officially open for business. You shall not use the Site to conduct business or sales in any country that the Company has not announced is officially open for business.
  5. Maskcara Beauty respects your privacy and the privacy of other visitors to the Site. To learn about our privacy practices and policies, please see our Privacy Policy.

  

17. ALL CONTENT INCLUDED IN OR AVAILABLE THROUGH THIS SITE (THE “CONTENT”) IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PUR SUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRAN TIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUR POSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATI BILITY, AND NONINFRINGEMENT. WE DO NOT WARRANT THAT THE CON TENT IS ACCURATE, ERRORFREE, RELIABLE OR CORRECT, THAT THIS SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THIS SITE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE COM PANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARD ING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HERE BY IRREVOCABLY WAIVE ANY CLAIM AGAINST THE COMPANY WITH RE SPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION). THE COMPANY MAY IMPROVE OR CHANGE THE PRODUCTS AND SERVICES DESCRIBED IN THIS SITE AT ANY TIME WITHOUT NOTICE. MASKCARA BEAUTY LLC ASSUMES NO RESPONSIBILITY, AND DISCLAIM ALL LIABILITY, FOR ANY ERRORS OR OMISSIONS IN THIS SITE OR IN OTHER DOCUMENTS WHICH ARE REFERRED TO WITHIN OR LINKED TO THIS SITE. SOME JURIS DICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

The Site may contain the opinions and views of other users. Given the interactive nature of the Site, we cannot endorse, guarantee, or be responsible for the accuracy, efficacy, or veracity of any content generated by other users.

18. Limitation of Liabilities:

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THE COM PANY, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTI TIES’ RESPECTIVE RESELLERS, CONSULTANTS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAM AGES, INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, THIS SITE OR CONTENT, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY OTHER USER OF THE SITE OR ANY OTHER PERSON OR ENTITY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAM AGES. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CON

TRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR AC CESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO THE SITE. MOREOVER, UNDER NO CIRCUMSTANCES SHALL THE COMPANY, OUR LI CENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPEC TIVE RESELLERS, CONSULTANTS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFOR MANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.

MASKCARA BEAUTY MAY TERMINATE YOUR FURTHER ACCESS TO THE SITE OR CHANGE THE SITE OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. You agree that the Site, including its code, documentation, appearance, structure and or ganization constitute trade secrets and/or copyrighted and/or proprietary material of Company and its licensors. The Site is protected by United States copyright, patent, trademark and other laws including international treaty provisions. You agree not to dis close, provide or otherwise make available such trade secrets, copyrighted or proprietary material in any form to any third party without the prior written consent of Company and/or its licensors, as applicable. Title to the Site, or any copy, modification, translation, partial copy, compilation, derivative work or merged portion of the Site, shall at all times remain with Company or its licensors, as applicable. You may not copy the written mate rials accompanying the Site. You agree to take every reasonable precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Site.
  2. Without the prior written consent of Company, you may not: (a) transfer, assign, rent, use, copy or modify the Site or the web pages created through the Site, in whole or in part, except as expressly permitted in this Agreement; (b) decompile, reverse assemble or otherwise reverse engineer the Site, except to the extent the foregoing restriction is ex pressly prohibited under applicable law; (c) reproduce, disclose, market, lease, transfer, distribute or revise the Site or the associated web pages; (d) distribute any executable ver sions of the Site to third parties or use such executables in excess of the limitations set forth above; (e) use the Site to provide facility management, service bureau or other ac cess or use of the program for the benefit of third parties; (f) You will not remove, alter or destroy any copyright notices, proprietary legends or other indicia of ownership.
  3. Company may offer features such as bulletin boards or email functions as part of the Site (referred to as “Interactive Medium”). You may not submit any material that is unlawful, harmful, harassing, threatening, abusive, hateful, libelous, defamatory, obscene, porno graphic, profane, vulgar, indecent, sexually explicit or otherwise objectionable that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applica ble law. Please do not submit any material that is protected by copyright, patent, or other

proprietary right without obtaining permission of the copyright or patent owner or licen sor.

The Interactive Medium shall not be used for any commercial purposes. You will not submit any material to solicit funds or to promote, advertise, or solicit the sale of any oth er goods, services, businesses or business opportunities. You are expressly prohibited from soliciting other guests of the Site Interactive Medium to become members of any network marketing company or business opportunity.

Any information or material submitted by you to the Company through the Interactive Medium will be deemed nonproprietary and nonconfidential, and may be used by Company without restriction. Without limiting the foregoing, by offering any information or material through the Company Site (e.g., through chat, bulletin boards, email, contests or otherwise), you grant to Company the worldwide, perpetual, royaltyfree, irrevocable, nonexclusive right and license to use, reproduce, modify, edit, publish, make derivative works from and distribute such information or materials in any and all forms and media, now or hereafter discovered. Notwithstanding the foregoing, all personal data (e.g., name, address and telephone number) provided to Company will be handled in accordance with Company’s Security and Privacy Statement.

Company reserves the right, in its sole discretion, to edit any submission, and to choose to include or not include such submission in the Interactive Medium. The Interactive Medium includes the opinions, statements and other content of third parties. We are not responsible for screening, monitoring or verifying such content, including such content’s accuracy, reliability or compliance with copyright or other laws. Any opinions, statements or other content expressed by third parties are those of such third parties and not of Company. Company does not endorse any such opinion, statement or other material post ed on or accessible through the Interactive Medium.

22. Any controversy or claim arising out of or relating to these Terms of Use, or the breach thereof, shall be settled through confidential arbitration. The Parties waive rights to trial by jury or to any court. The arbitration shall be filed with, and administered by, the American Arbitration Association in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website at www.adr.org. Copies of the AAA’s Commercial Arbitration Rules and Mediation Procedures will also be emailed to claimants upon request to Maskcara Beauty’s customer Service Department. Not withstanding the rules of the AAA, unless otherwise stipulated by the Parties, the following shall apply to all Arbitration actions:

  • The Federal Rules of Evidence shall apply in all cases;
  • The Parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil
    Procedure;
  • The Parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal
    Rules of Civil Procedure;
  • The Federal Arbitration Act shall govern all matters relating to arbitration. The law of
    the State of Utah, without regard to principles of conflicts of laws, shall govern all
    other matters relating to or arising from the Agreement,
  • The arbitration hearing shall commence no later than 365 days from the date on which

      

the arbitrator is appointed, and shall last no more than five business days;
The Parties shall be allotted equal time to present their respective cases;
The arbitration shall be brought on an individual basis and not as part of a class or con

solidated action.

All arbitration proceedings shall be held in St. George, Utah. There shall be one arbitrator selected from the panel that the AAA provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court to which the Parties have consented to jurisdiction as set forth in the Agreement. This agreement to arbitrate shall survive the cancellation or termination of the Agreement.

Any action brought by a claimant shall be brought on an individual basis, and not on behalf of a class or on a consolidated basis. Claimants waive all rights to bring an action against Maskcara Beauty, its officers, owners, directors, employees and agents as a class or consolidated action.

Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in St. George, State of Utah, or the United States District Court for the Central District of Utah. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Utah, without regard to principals of conflicts of laws, shall govern all other matters relating to or arising from the Agreement.

Users of the Site waive all claims to special, incidental, consequential, and exemplary dam ages, even if we are notified of the possibility or likelihood of such damages in advance.

  1. “Confidential Information” includes, but is not limited to, information about Independent Artists and Customers that is contained in or derived from the Site and/or any reports issued by Maskcara Beauty to Artists to assist them in operating and managing their Maskcara Beauty business which are posted or made available on the Site. Confidential  Information constitutes proprietary business trade secrets belonging exclusively to Maskcara Beauty and is provided to Independent Artists in strict confidence. Confidential Information shall not be directly or indirectly disclosed to any third party nor used for any purpose other than Independent Artist’s use in building and managing his/her In dependent Maskcara Beauty business.
  2. By using the Site, you authorize the Company to periodically send you information and updates relating to the Company’s business, products, programs, promotions, and other matters.
  3. Use of the Site is a privilege and not a right. Maskcara Beauty reserves the right to restrict or prevent access to the Site of any Artist who violates these Terms of Use, the Maskcara Beauty Artist Agreement, or the Maskcara Beauty Policies and Procedures.
  4. Maskcara Beauty does not guarantee that the Site will be free from interruption. The Site may be subject to shutdowns from time to time for maintenance, technical issues, and/or causes beyond Maskcara Beauty’s control. You agree that Maskcara Beauty shall have no liability for any loss caused by any shut down or interruption.

27. Supply of goods, services and software through the Site is subject to United States export control and economic sanctions requirements. By acquiring any such items through the Site, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through the Site if: (a) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, Unverified List or Entity List, or (b) you intend to supply the acquired goods, services or software to Cuba, Iran, North Korea, Sudan or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.