Terms of Service
Last updated: 12/5/18
Zephyr may revise these Terms at any time. Your continued usage of the Zephyr Services will mean you accept those changes, and you agree to comply with all applicable laws and regulations. The materials provided on the Zephyr Services are protected by law, including, but not limited to, United States copyright laws and international treaties.
The terms “you,” “your,” “user,” and “users,” as used herein, refer to all individuals and/or entities accessing the Zephyr Services for any reason.
PLEASE NOTE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECT HOW DISPUTES WITH ZEPHYR ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THE ARBITRATION PROVISION (SECTION 12). PLEASE READ IT CAREFULLY.
You must be 18 years of age or older to visit or use the Zephyr Services in any manner. By visiting the Zephyr Services or accepting the Terms, you represent and warrant to the Company that you are 18 years of age or older, and that you have the right, authority, and capacity to agree to and abide by these Terms. You also represent and warrant to the Company that you will use the Zephyr Services in a manner consistent with any and all applicable laws and regulations.
2. USE OF THE ZEPHYR SERVICES
2.1 Use Restrictions
The content on the Zephyr Services, such as information, text, images, graphics, interfaces, photographs, illustrations, audio and video clips, trademarks, trade names, service marks, logos, information obtained from Zephyr’s licensors, and any other materials displayed through the Zephyr Services (collectively, the “Contents”) is protected by copyright under both United States and foreign laws. Title to the Contents remains with Zephyr. Any use of the Contents not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. Except as stated herein, none of the Contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of Zephyr or its licensors.
Zephyr authorizes you to view and download and print a single copy of the Contents solely for your own lawful, personal, non-commercial use if you include the following copyright notice: “Copyright © 2018, Zephyr, Inc. All rights reserved” and retain other copyright and proprietary rights notices which were contained in the Contents. Any special rules for the use of other items provided on the Zephyr Services may be included elsewhere within the Zephyr Services and are incorporated into these Terms by reference. The use of the Contents on any other site or in a networked computer environment for any purpose is prohibited. All rights not expressly granted herein are reserved to Zephyr and its licensors. If you violate any of these Terms, your permission to use the Contents automatically terminates and you must immediately destroy any copies you have made of any portion of the Contents.
So long as you are in compliance with these Terms, the Company grants a non-exclusive limited, non-transferable license to use the Zephyr Services. You may not distribute or make the Zephyr Services available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Services. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof. Any attempt to do so is a violation of these Terms. If you breach this restriction, you may be subject to prosecution and damages. These Terms will govern any upgrades provided by the Company that replace and/or supplement the original Zephyr Services, unless such upgrade is accompanied by separate or updated Terms of Service. If you violate any of these Terms, your permission to use the Contents automatically terminates and you must immediately destroy any copies you have made of any portion of the Contents.
You may not, without Zephyr’s written permission, “mirror” any Contents contained in the Zephyr Services or any other server. You hereby represent and warrant that you will not, and will not induce any third party to use the Zephyr Services in any way that: (a) harasses, abuses, stalks, threatens, defames any person, or otherwise infringes or violates the rights of any person (including but not limited to rights of publicity or other proprietary rights); (b) is unlawful, fraudulent, or deceptive; (c) uses technology or other means to access unauthorized content or non-public spaces; (d) uses any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Services or Content; (e) attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (f) attempt to disable or circumvent any security mechanisms used by the Services or Content or otherwise attempt to gain unauthorized access to any portion of the Services or Content or any other systems or networks connected to the Site, or to any server of Zephyr or its third party service providers, by hacking, password “mining”, or any other illegal means; (g) attempts to gain unauthorized access to Zephyr’ user accounts; (h) encourages conduct that would constitute a criminal offense, or that gives rise to civil liability; (i) use the Services or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulation; (j) is unlawful or violates these Terms in any manner; or (k) fails to comply with applicable third-party terms and conditions or other third-party policies.
Zephyr reserves the right, in its sole discretion, to refuse, discontinue, block and/or terminate your use of, and access to, the Zephyr Services, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
2.2 User Submissions
Except as provided under Submission of Ideas (Section 2.3 below), Zephyr does not claim ownership of any information or material a user provides to Zephyr or posts, uploads, input, submits, or transmits to the Zephyr Services (“Submission”). You agree that you will not make any Submission that is, in whole or in part, libelous; scandalous; inflammatory; discriminatory; defamatory; false; threatening; vulgar; obscene; pornographic; profane; abusive; harassing; invasive of another’s privacy; hateful or bashing; aimed at gender, race, color, sexual orientation, national origin, religious views, or disability; in violation of local, state, national, or international law; or that infringes on, or violates, any right of any party. Additionally, you agree that you will not: (a) make any Submission that is an advertisement or solicitation of business; (b) disrupt the normal flow of dialogue or make a Submission unrelated to the topic being discussed (unless it is clear the discussion is free-form); (c) post a chain letter or pyramid scheme; impersonate another person; (d) distribute viruses or other harmful computer code; (e) harvest or otherwise collects information about others, including email addresses, without their consent; (f) post the same note more than once or “spamming”; or (g) engage in any other conduct that restricts or inhibits any other person from using or enjoying the Zephyr Services, or which, in the judgment of Zephyr, exposes Zephyr or any of its licensors, partners, or customers to any liability or detriment of any type.
By making a Submission, you agree that such Submission is non-confidential, non-proprietary, and may be disseminated or used by Zephyr. If you make a Submission, you automatically grant—or warrant that the owner of such content has expressly granted—Zephyr a royalty-free, perpetual, irrevocable, worldwide non-exclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the Submission in any media or medium, or any form, format, or forum now known or hereafter developed. Notwithstanding the foregoing, Zephyr is not required to use any Submission.
You are solely responsible for your Submission, the consequences of making a Submission, and your reliance on any Submissions. Zephyr is not responsible for the consequences of any Submission. Zephyr is not responsible for screening or monitoring Submissions made to this Zephyr Services by users. If notified by a user of a Submission allegedly in violation of these Terms, Zephyr may investigate the allegation and determine in good faith and its sole discretion whether to remove such Submission. Zephyr will have no liability or responsibility to users for performance or nonperformance of such activities.
Zephyr reserves the right (but is not obligated) to: (a) record the dialogue on the Zephyr Services; (b) investigate an allegation that a Submission does not comply with these Terms and determine in its sole discretion to remove or request the removal of the Submission; (c) remove Submissions which are abusive, illegal, disruptive, or outdated, or that otherwise fail to comply with these Terms; (d) terminate a user’s access to any or all parts of the Zephyr Services upon any breach of these Terms or the law; (e) monitor, edit, or disclose any Submission; (f) edit or delete any Submission posted on the Zephyr Services, regardless of whether such Submission violates these Terms.
2.3 Submission of Ideas
Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Ideas”) in any form to Zephyr. Zephyr policy is to not accept, review, or consider unsolicited Ideas or suggestions (including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans, new artwork or other works, or new product names). The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of Zephyr’s products, services or marketing strategies might seem similar to ideas submitted to Zephyr.
Notwithstanding such policy, any Ideas that are offered or communicated to us through the Zephyr Services or otherwise shall be the property of Zephyr, and may be treated by Zephyr as non-confidential information. In such case, you agree that: (a) any Idea (including its complete contents) by you to Zephyr will automatically become the property of Zephyr, without any compensation to you; (b) Zephyr may use or redistribute any Ideas and its contents for any purpose and in any way, without any compensation to you; (c) Zephyr has no obligation to review any Idea; and (d) Zephyr has no obligation to keep any Idea confidential, and no confidential relationship may be established by or inferred from any such Idea to, or the consideration of your Ideas by, Zephyr.
2.4 Your Account
If you use the Zephyr Services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. Zephyr reserves the right to refuse service, terminate accounts or memberships, remove or edit content, or cancel orders or shipments in its sole discretion.
3. TERMS OF SALE
Zephyr sells home diffusers, essential oil blends, car diffusers, and other aromatherapy related products (the “Products”) to end-user customers who can purchase a recurring membership plan (“Members”) to have the Products shipped regularly on a schedule of the Member’s choosing only for their own personal, non-commercial use (the “Membership”). You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 Products and Product Pricing
The price that we will charge you for the Products and Membership may be based on a tiered pricing structure that depends on Membership chosen. Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on the Zephyr Services. Members may view or customize the subscription services and products by going to the “My Zephyr” page. By adding or removing Products from your “My Zephyr”, or changing your Membership, this may change the price that we will charge you for the Products Subscription Service. We reserve the right to change a Product’s price or the tiered pricing structure at any time, with appropriate notice to you. We do not provide price protection or refunds in the event of promotions or price decreases.
3.3 Memberships and Promotions
Zephyr reserves the right, in its absolute discretion, to withdraw or modify any Product, Membership, offering, or promotion at any time without prior notice and with no liability. Any and all Products, Memberships, offers, or promotions advertised on the Zephyr Services are void where prohibited, and are subject to the posting of any official rules to such offers or promotions.
3.4 Processing Orders
If any problems arise with your order, or with the shipping address or Payment Method associated with your Membership, and Zephyr is unable to resolve the problem, we may notify you via e-mail using the address associated with your Membership. It is important that you keep your information current with an accurate email address that you regularly check. If problems arise with your order that we cannot resolve, your order may be cancelled and we may not be able to process future Subscription orders until the problem has been resolved.
If you are dissatisfied with one of our Products for any reason, we will refund the amount paid for that Product in your most recent shipment received. Refund requests must be made directly to us at email@example.com within 30 days of receipt of the order from Zephyr. We are not liable for Products that are damaged or lost in transit to our facility. Customers requesting refund within the 30 day window will receive, via e-mail, a shipping label for return of goods. The product must be shipped within 30 days of receipt of the return label. Upon receipt of goods, including accessories, if the goods were shipped within the 30 day window, Zephyr will credit customer’s purchase price within 30 days of receipt of the product. Payment processing can take up to seven (7) business days depending on payment method used.
Notwithstanding the foregoing, Zephyr does not control when a specific credit card or payment method company processes a chargeback transaction. You are responsible for contacting your Payment Method company if you have questions about the status of the chargeback.
We will not provide a refund for a request that is received by Zephyr more than 30 days after the receipt of original shipment. We also do not provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use. (Trimming the Home Diffuser Vent Tube, the 5/8″ nylon tube included in the kit, is considered normal use.) We will not refund purchases if they were not shipped within 30 days of receiving return shipping label.
4. MEMBERSHIP TERMS AND CANCELLATION POLICY
4.1 Recurring Membership; Automatic Renewal
YOU ACKNOWLEDGE AND AGREE THAT EACH MEMBERSHIP AUTOMATICALLY RENEWS UNLESS YOU CANCEL IT OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TERMS.
Zephyr will automatically renew your Membership and charge your Payment Method depending on the Scent Refill Cartridge shipping frequency chosen by you and, as authorized by you by agreeing to the automatic renewal of your Membership during the Member sign-up process.
Your Payment Method will be charged at least one full business day prior to your next Scent Refill Cartridge shipping date. We will charge your Payment Method with the applicable cost for your Box, along with any sales or similar taxes that may be charged with your Membership.
To avoid being charged, you must cancel your Membership in accordance with Section 4.3. We will continue to bill your Payment Method on a recurring basis (depending on the Membership and Box shipping frequency selected) until you cancel.
4.3 Membership Cancellation
You may cancel your Membership at any time from the Account page on the Zephyr website. To cancel a Membership, click on the “My Zephyr” link at the top of the page, then select “Account” follow instructions towards cancellation. Cancellation requests submitted in this manner must be received at least one full business day prior to your next Box shipping date to avoid being charged for that Box. Cancellation requests received by Zephyr through other channels may take up to five (5) business days to process. If you have any problems, please email us at firstname.lastname@example.org.
5. LIABILITY OF Zephyr AND ITS LICENSORS AND PARTNERS
The use of the Zephyr Services and Products are at your own risk. The Contents in the Zephyr Services could include technical inaccuracies or typographical errors. Zephyr may make changes or improvements at any time.
THE CONTENTS IN THE ZEPHYR SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZEPHYR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ZEPHYR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIAL WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ZEPHYR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ZEPHYR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE CONTENTS IN THE ZEPHYR SERVICES IN RELATION TO THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT ZEPHYR) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
6. CONTACT WITH THIRD PARTIES AND THIRD PARTY WEBSITES
The Zephyr Services may contain hyperlinks to other websites and webpages (“Third-Party Pages”), as well as to text, graphics, videos, images, music, sounds, and information belonging to or originating from other third-parties (collectively, “Third-Party Applications”). The Company does not investigate, monitor, or review any Third-Party Pages or Third-Party Applications to ensure their accuracy, completeness, or appropriateness. The Company is not responsible for the Third-Party Pages or any Third-Party Applications accessed through the Zephyr Services. You agree that Zephyr shall have no liability with respect to any loss or damage of any kind incurred as a result of any dealings between you and any third party, or as a result of the presence of such third party on the Zephyr Services.
The inclusion of any hyperlinks to any Third-Party Pages or Third-Party Applications on the Zephyr Services does not indicate the Company’s approval or endorsement thereof. These links are provided solely as a convenience or benefit to users. Your interactions with a third party on the Zephyr Services, or based on such third party’s participation or presence on the Zephyr Services, are solely between you and the third party. Zephyr makes no representations or warranties with respect to the content, ownership, or legality of any such linked third party website. If you choose to leave the Zephyr Services to access any Third-Party Pages or Third-Party Applications, you do so at your own risk.
You agree to defend, indemnify, and hold Zephyr, its affiliates, licensors, suppliers, and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the “Zephyr Parties”) harmless from and against any claims, actions, demands, liabilities, and settlements including, without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Zephyr Services or Products, or your violation of these Terms. Zephyr reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.
8. MODIFICATION OR SUSPENSION OF THE Zephyr SERVICES
You agree that Zephyr may, in its sole discretion and at any time, modify, discontinue, or suspend its operation of the Zephyr Services, any part thereof or any Products, temporarily or permanently, without notice or liability to you.
Zephyr makes no claims that the Contents are appropriate or may be downloaded outside of the United States of America. Access to the Contents may not be legal by certain persons or in certain countries. If you access the Zephyr Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The following provisions survive the expiration or termination of these Terms for any reason whatsoever: Liability of Zephyr and its Licensors and Partners, Use Restrictions, User Submissions, Submission of Ideas, Indemnity, Choice of Law, Arbitration and Class Action Waiver, and Complete Agreement.
10. CHOICE OF LAW
These Terms are governed in accordance with the laws of the state of Utah, United States of America, without regard to its conflict of law provisions. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
11. MANDATORY AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS; CLASS ACTION WAIVER
Please read this Section 12 (“Arbitration Agreement”) carefully. It is part of your contract with Zephyr and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at email@example.com. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 12 govern dispute resolution between us.
Applicable to the United States:Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and the Company or the Company’s employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration, except that you or the Company may take claims to small claims court if the dispute qualifies for hearing by such a court. In addition, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU AND THE COMPANY ARE EACH WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
Arbitration shall be subject to the U.S. Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate. The JAMS Rules, including instructions for bringing arbitration, are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration. The Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/.
You and the Company must abide by these rules: (a) the arbitration shall be conducted on an individual basis and not in a class, consolidated or representative action and the arbitrator shall not award class-wide relief; (b) the Company will pay its arbitration costs as required by JAMS rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the Company will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.
With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in the paragraph above is found invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or U.S. federal court in Utah.
Applicable to Canada:After any dispute arises, the parties involved in the dispute may agree to resolve the dispute using Arbitration. If the parties elect to use arbitration, disputes shall be referred to ADR Institute of Canada. For a copy of the procedure to file a Claim, or for other information about this organization, contact them as follows: www.adrcanada.ca.
12. NOTICE AND TAKE DOWN PROCEDURES OR CLAIMS OF COPYRIGHT INFORMATION
If you believe any Submission accessible on or from the Zephyr Services infringes your copyright, you should notify Zephyr of your infringement claim in accordance with the procedures below:
– Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work;
– Identification of the Submission that you believe to be infringing and its location. Please describe the Submission, and provide us with its URL or any other pertinent information that will allow us to locate the Submission;
– Your name, address, telephone number, and (if available) email address;
– A statement that you have a good faith belief that the complained of use of the work is not authorized by the copyright owner, its agent, or the law;
– A statement that the information you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or authorized representative; and
– A signature or the electronic equivalent from the copyright holder or authorized representative.
We will process each notice of alleged infringement that Zephyr receives and take appropriate action in accordance with applicable intellectual property laws. A notification of claimed copyright infringement should be emailed to Zephyr’s copyright agent at firstname.lastname@example.org (subject line: “Takedown Request”). In an effort to protect the rights of copyright owners, Zephyr maintains a policy for the termination, in appropriate circumstances, of users of the Zephyr Services who are repeat infringers.
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of Zephyr to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance.
14. COMPLETE AGREEMENT
If you have any questions or concerns please send us an email to email@example.com.