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BE Terms and Conditions

BE TERMS AND CONDITIONS

PLEASE BE ADVISED THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.

Welcome to BE, the bath experience!! BE (“BE” or “Company”) is the operator of the www.bebathexperience.com site (the “Site”) and the mobile applications (“Applications”). THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND BE. THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND APPLICATION OF ALL SERVICES, FEATURES, GIFT CARDS, CREDITS AND RESOURCES AVAILABLE OR ENABLED VIA THE SITE AND/OR APPLICATIONS (COLLECTIVELY, WITH THE SITE AND APPLICATIONS, THE “SERVICES”), AND YOUR PURCHASE OF THE MEMBERSHIPS AND PRODUCTS SOLD THROUGH OUR SERVICES. BY ACCESSING AND USING ANY OF THE SERVICES, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SERVICES OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, BE.

By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless BE if your child breaches or disaffirms any term or condition of this Agreement.

BE reserves the right to revise these Terms at any time by updating this posting. You are encouraged to review these Terms each time you use the Site and Applications because your use of the Site and Applications after the posting of changes will constitute your acceptance of the changes. Agreement to these Terms also constitutes your agreement to BE’s Privacy Policy (the “Privacy Policy”), which are incorporated herein.

We grant you a personal, limited, non-transferable, non-exclusive license to access and use the Site and Applications. We reserve the right, in our sole discretion and without notice to you, to revise the products and services available on the Site and Applications and to change, suspend or discontinue any aspect of the Site and Applications and we will not be liable to you or to any third-party for doing so. We may also impose rules for and limits on use of the Site and Applications or restrict your access to part, or all, of the Site and Applications without notice or penalty. Your continued use of the Site and Applications will constitute your acceptance of any such changes.

1 CHANGES TO SERVICES; PERSONAL INFORMATION/PRIVACY

1.1 Changes to the Services

BE may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.

1.2 Personal Information

Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). BE reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that BE uses a third-party payment processing service to process orders and bill fees to your credit, debit, or other Company accepted payment method (“Payment Method”).

1.3 Privacy

By using any Services and/or purchasing a Membership you consent to the collection, transfer, manipulation, storage, disclosure and other uses of your information as described in detail in our Privacy Policy. Irrespective of which country you reside in or supply information from, you authorize BE to use your information in the United States and any other country where BE operates as described herein. Accordingly, please be sure to read our Privacy Policy before using the Services or submitting information to us. If you have any questions regarding our privacy practices, please email us at: beheard@bebathexperience.com

2 PASSWORDS; USER LICENSE; CHAT SESSIONS

2.1 Passwords

You may log in to the Site and Applications by using your login credentials for an existing account on various third-party websites, which may change from time to time, including, without limitation, Twitter, Facebook and LinkedIn (“Third-party Site Login Credentials”) and, if applicable, configure your privacy settings in your third-party website account to permit your activities on this Site to be shared with your contacts in your third-party Site account (as further detailed in our Privacy Policy. Notwithstanding the foregoing, you agree that your use of any third-party website through which you log in to our Site and Applications using your Third-party Site Login Credentials is governed by the terms and conditions of such third-party website’s terms of use and privacy policy, including, without limitation, such third-party website’s password and account security policies and user-generated content posting and acceptable use policies.

You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might

jeopardize the security of your passwords. You agree to notify BE if there is any unauthorized use of your password or if you know of any other breach of security in relation to the Services.

2.2 User License

Subject to your compliance with this Agreement, BE hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Services and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed through the Services (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Services and Content automatically terminates without notice to you.

You hereby represent and warrant that you will not, and will not induce any third-party to: (a) 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 BE or its third-party service providers, by hacking, password “mining”, or any other illegal means; (b) use 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; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Services or with any other person’s use of the Services; (d) track or seek to trace any information on any other person who visits the Site or Applications, or uses our Services; (e) 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 regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site, Applications, Services, or Content.

3 TERMS OF SALE

3.1 - Sales of Products and Memberships to End Users Only

BE sells bath products (the “Product(s)”) to end-user customers who purchase bath products monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. 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 - Pricing

Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on BE’s current pricing page located on the Site. The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. BE reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.

3.3 –Promotional Trials

Your Membership may start with a promotional trial period, allowing you to receive your first monthly bath shipment at a reduced price ("Trial"). At the time of sign-up, your Payment Method will just be charged for the reduced trial price and shipping and taxes, if applicable. For combinations with other offers, restrictions may apply. BE reserves the right, in its absolute discretion, to determine your Trial eligibility.

We will begin billing your Payment Method the applicable monthly Membership at the end of the Trial unless you cancel your Membership prior to the end of the Trial. To view the specific details of your Membership, including monthly Membership price and end date of your Trial, visit our website and click the "Your Account" page. We may authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your Trial period.

You will not receive a notice from us that your promotional (reduced Trial) pricing has ended or that the standard rate portion of your Membership has begun. To avoid being charged after the expiration of your Trial, you must cancel your Membership prior to the end of the first month. We will continue to bill your Payment Method on a monthly basis for your Membership fee until you cancel. For detailed instructions on how to cancel, see Section 3.5 below.

BE reserves the right, in its absolute discretion, to withdraw or modify any Trial offerings or promotions at any time without prior notice and with no liability.

3.4 Payment Methods; Automatic Monthly Membership Renewals and Membership Cancellation Policy

BE accepts various Payment Methods. You agree to pay all fees charged to your account based on BE’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for Membership. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize BE or the third-party payment processing service provider that we engage to charge your Payment Method for any such taxes and fees. All payments shall be made by your selected Payment Method in advance prior to shipping the Products. If you do not pay on time or if your Payment Method cannot be charged for any reason, BE reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US dollars.

BE and BE's third-party payment service provider may receive updated Payment Method information from your credit card or payment method issuer. The disbursement of the updated Payment Method information is provided to BE and BE's third-party payment service provider at the election of your credit card and payment method issuer. Neither BE nor BE’s third-party payment service provider is responsible for the distribution of your credit card or payment method information. It is at the sole election of your credit card or payment method issuer. Your credit card or payment method issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card or payment method issuer with regards to your right to opt out of the update service.

IMPORTANT NOTICE TO CONSUMER:

MONTHLY MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH. BE will automatically renew your Membership on each monthly anniversary date of the Membership Term, and as authorized by you by checking the box demonstrating your consent for automatic monthly renewal of your Membership during the sign-up process, we will charge your Payment Method with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month.

MEMBERSHIP CANCELLATION. You may cancel your Membership at any time by emailing your request to beheard@bebathexperience.com no later than 12 midnight Pacific Time on the 15th of the month prior to the month you’re requesting cancellation to be effective. If notified after the 15th of the month, cancellation will not be effective until the following billing month. All cancellations must be in writing and sent via email to beheard@bebathexperience.com. Your cancellation will not be effective until you receive a confirmation email back from BE acknowledging your account has been canceled. If you have any problems, please

email beheard@bebathexperience.com.

3.5 Shipping and Product Acceptance

The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent via the U.S. Postal Service or a suitable third-party carrier. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.

3.6– Pausing and Resuming Shipping

At a certain time, BE may offer its members the ability to temporarily pause their Memberships (“Pause Period”). During the Pause Period, members will remain active members, but they will not receive any BE Products.

A Membership may be placed on a Pause Period for either a one, two, or three-month period. During the Pause Period, members will remain a member of BE, continue to receive communications from BE via email, but will not be charged any maintenance or membership fee.

Members who are in a Pause Period may resume receiving BE Products by logging into their account and Resuming shipping either immediately or on their original bill date.

4 USE OF MOBILE APPLICATIONS, SITE, AND OTHER SERVICES

4.1 BE iOS and Android Mobile Application Terms:

The Terms of this Section 4 shall apply to the Users utilization of either BE iOS Application or BE Android Application. The consideration of which terms apply is contingent on the Mobile Application downloaded and utilized by the User at the time of access to BE Sites and Services. By way of example, if the User accesses BE Services on an Android device the Android terms shall apply and if the User accesses BE Services on an Apple device the iOS terms shall apply. For purposes of this section and to the extent applicable in this Agreement, together the iOS Application and Android Application shall known as Applications.

4.2 Incorporation of Related Apple Terms:

These Terms incorporate and supplement the Apple, Inc. (“Apple”) Terms and Conditions (available at http://www.apple.com/legal/itunes/us/terms.html#service), including without limitation the Licensed Application End User Agreement therein (“Apple Terms”). In addition, these Terms also incorporate and supplement other terms, conditions, and policies of BE posted at http://www.bebathexperience.com , including without limitation the following related terms, conditions, and other policies, the location and terms of which may be changed from time-to-time, BE Privacy Policy;

Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.

i.      4.2-1 – End-User License for Apple Application: Subject to these Terms, BE grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”). Any use of the iOS Device in any other manner, including, without limitation, resale, transfer, modification or distribution of the iOS Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the iOS Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the iOS Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.

4.3 Incorporation of Related Android Terms:

These Terms incorporate and supplement the Google, Inc. Android (“Android”) Market Terms of Service (available at https://www.google.com/mobile/android/market-tos.html) and the Google Play Developer Distribution Agreement (available

at https://play.google.com/about/developer-distribution-agreement.html#showlanguages), (“Android Terms”). In addition, these Terms also incorporate and supplement other terms, conditions, and policies of BE posted at http://www.bebathexperience.com, including without limitation the following related terms, conditions, and other policies, the location and terms of which may be changed from time-to-time, BE Privacy Policy;

Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.

i.      4.3-1 – End-User License for Android Application: Subject to these Terms, BE grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Android Device owned or controlled by User as permitted by the Usage Rules contained in the Android Terms and in accordance with these Terms (“User License”). Any use of the Android Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Android Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Android Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the Android Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.

4.4 User Information:

Services and features, such as Virtual BE Credits, mobile gifting, feedback, account management, and interaction with social media sites, may use, maintain, or transmit User’s personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including Payment Method information), virtual BE Credits information, GPS location information, and information for and

from third-party social-media accounts (collectively “User Information”). By acknowledging and agreeing to this Agreement, or by using the Applications, Site, or other Services, User consents to the transmission of User Information to BE, including its agents and third-party partners, and consents to BE, including its agents and third-party partners, receiving, collecting, storing, processing, transmitting, and using User Information for Application functionality and for the purposes disclosed in one or more of BE Privacy Policies identified in this Agreement.

Users are solely responsible for taking precautionary steps to protect User Information stored on the respective Applications, including without limitation password-protecting the respective Applications and employing Apple's or Android's remote-wipe feature.

Unless attributable to BE's negligence or misconduct, users are also responsible for all payments and losses resulting from transactions and activities undertaken using Virtual BE Credits registered in their names and agree to immediately notify BE of any suspected unauthorized transactions associated with the Services or any other breach of security.

4.5 Prohibited Uses:

Users are prohibited from using the Applications, Site, or Services in any way that:

i.      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);

ii.      is unlawful, fraudulent, or deceptive;

iii.      Uses technology or other means to access unauthorized content or non-public spaces;

iv.      Uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public data;

v.      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;

vi.      Attempts to damage, disable, overburden, or impair BE servers or networks;

vii.      Attempts to gain unauthorized access to a BE computer network;

viii.      Attempts to gain unauthorized access to BE’ user accounts;

ix.      Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;

x.      Violates these Terms in any manner; or

xi.      Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).

BE reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Applications or other Services, including any Virtual BE Credits, that BE reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.

4.6 User-Generated Content:

The User may generate content, written or otherwise, while using the Services (“User-Generated Content”). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by BE (for example, in product marketing campaigns). User grants BE and its successors a worldwide; irrevocable; transferrable; sub licensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content.

4.7 Indemnification:

User agrees to indemnify and hold harmless BE, its affiliates, licensors, suppliers, and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the "BE Parties") from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) arising from or related to the User's misuse of the Services or Products, violation of these Terms, or violations of any rights of a third-party, or any allegation thereof. BE 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. This provision does not require you to indemnify any BE Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.

4.8 No Warranties:

THE SITE, APPLICATIONS, OTHER SERVICES AND CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. BE, ON BEHALF OF ITSELF AND THE OTHER BE PARTIES: (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, APPLICATION OR SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS REGARDING THE USE OF THE SITE, APPLICATION, SERVICES OR CONTENT IN

TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, APPLICATIONS, SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN DISCRETION AND RISK.

THIS LIMITATION OF WARRANTIES IS A PART OF THE BARGAIN BETWEEN YOU AND BE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BE OR ANY PERSON ON BEHALF OF BE SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.

NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT BE PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

4.9 No Liability:

IN NO EVENT SHALL BE PARTIES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATIONS, SITE, OTHER SERVICES OR CONTENT, THE INABILITY TO USE THE APPLICATIONS, SITE OR OTHER SERVICES OR CONTENT, OR DEVICE FAILURE OR MALFUNCTION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER ECONOMIC DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, OR LOST PROFITS, EVEN IF A BE PARTY HAS BEEN’ ADVISED OF THE POSSIBILITY OF SUCH ECONOMIC DAMAGES.

IF, NOTWITHSTANDING THE FOREGOING, A BE PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, APPLICATIONS OR OTHER SERVICES, THE RELEVANT BE PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID BE FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; OR (B) THE SUM OF ONE HUNDRED DOLLARS (US $100). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATION, SITE, OTHER SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.

THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE LIMITATION ON RECOVERY OF ECONOMIC DAMAGE OR LOSS, SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.

4.10 Intellectual Property:

BE, BE logo, and other BE trademarks, service marks, graphics and logos used in connection with the Applications and other Services are trademarks or registered trademarks of BE or other companies of BE (collectively “BE Marks”). Other trademarks, service marks, graphics and logos used in connection with the Applications and other Services are the trademarks of their respective owners (collectively “Third-Party Marks”). BE Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of BE or

the applicable trademark holder. The Applications and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by BE or the owner of the Content.

4.11 Severability:

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 BE to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.

4.12 Modification of this Agreement:

Subject to Section 10.1(x) of this Agreement, BE reserves the right to change or modify this Agreement or any other BE terms, conditions, or policies related to use of the Applications or other Services at any time and at its sole discretion by posting revisions on the Site (http://www.bebathexperience.com) or within the Applications. Continued use of the Applications, Site, or other Services following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of BE shall have any legal effect as a waiver by BE of any Terms of this Agreement.

4.13 Third-Party Beneficiary:

User agrees that BE’s service providers, licensors, or others involved in creating or providing the Applications or other Services are third-party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.

5 GIFT CARDS

5.1 Purchasing and Redemption:

i.      By purchasing BE Gift Cards ("Gift Cards"), you agree and represent that your use of the Gift Cards will comply with this Agreement and all applicable laws, rules, and regulations, and that you will not use the Gift Cards in any manner that is misleading, deceptive, unfair, or otherwise harmful to consumers or BE, including its investors, officers, employees, agents, servants, assignees, subsidiaries, or any other BE-related entity.

ii.      A Site account is not required in order to purchase a Gift Card. If the Gift Card is purchased for an individual other than you, the recipient of the Gift Card shall be notified via email at the email address you provide during the purchase. In the event the recipient does not have a Site account at the time of receiving the email, they will be prompted to create a Site account in order to redeem the Gift Card. A Site account is required in order to redeem a Gift Card.

iii.      You may purchase Gift Cards. The amount of the Gift Card you purchase shall be charged to you according to your selected payment option when you confirm the purchase of the Gift Card. If the purchase of a Gift Card is part of a promotional campaign wherein purchase of a Gift Card at a pre-determined dollar amount is awarded with additional BE credits (“BE Credits”), these BE Credits shall only be available for use after the total amount of Gift Cards has been exhausted. In all circumstances, BE Credits shall be used only after the exhaustion of Gift Cards.

iv.      Personal information that you provide in connection with the purchase or redemption of Gift Cards will be governed by BE Privacy Policy.

v.      Gift Cards and BE Credits may only be redeemed toward the purchase of eligible products on the Site. Redemption of Gift Cards and BE Credits on the Site is subject to change in BE’s sole discretion. Purchases are deducted from the Gift Card balance. Any unused balance will be placed in the recipient's BE account (“BE Credits Balance Display”) when redeemed. If an order exceeds the amount of the Gift Card, the balance must be paid with a Payment Method or other payment method accepted by BE.

vi.      You may be able to obtain your gift card balance by contacting BE customer service

at beheard@bebathexperience.com . The Gift Card balance relayed to you by a BE customer service agent is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase online, but there may be occasions when the updated balance is delayed for a period of time.

vii.      Gift Cards never expire.

5.2 Use and Limitations:

i.      Gift Cards may only be purchased and redeemed by persons residing in the 50 United States and the District of Columbia, and may only be used on the Site.

ii.      Gift Cards cannot be used to purchase other gift cards.

iii.      To the fullest extent of the law, Gift Cards cannot be reloaded, resold, transferred for value, or applied to any other account. Unused Gift Card balances in a Site account may not be transferred.

iv.      Gift Cards are not returnable or refundable for cash except in states where required by law. Notwithstanding the foregoing reason sentence, if a balance of less than $5 remains on a Gift Card owned by a New Jersey resident following redemption we will refund the balance in cash upon the owner's request to beheard@bebathexperience.com.

v.      Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via websites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain BE's prior written approval.

vi.      Use of BE's name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of BE Gift Cards is strictly prohibited. Furthermore, the use of BE Gift Cards in any manner that states or implies that any person, website, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, BE or any of its subsidiaries or affiliates is prohibited.

5.3 Risk of Loss:

If your Gift Card is lost or stolen, immediately contact customer service

at http://www.bebathexperience.com. Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to BE. BE and its affiliates shall have no liability to you for:

i.      For lost or stolen Gift Cards; or

ii.      Use of any Gift Cards by third parties through your Site account. You are solely responsible for keeping the username and password for your Site account safe and for any activity conducted under your account.

iii.      Notwithstanding the above, the risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. We are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission.

5.4 Fraud:

BE shall have the right to close member accounts or any related account(s) if BE suspects a Gift Card is being used in a fraudulent manner to make purchases on the Site. If a fraudulently obtained Gift Card is redeemed and/or used to make purchases on the Site or any of its affiliated websites set forth above BE shall immediately suspend the Gift Card and may recoup the amount of the Gift Card by charging the amount from the Credit or Debit Card supplied.

BE may also cancel or remove any and all BE Credits on the member accounts and/or any related account(s). BE has a zero-tolerance Fraud policy and it is the responsibility of the account holder to secure their account and Gift Card.

5.5 Limitation of Liability & Gift Cards:

IN THE EVENT A GIFT CARD CODE IS NON-FUNCTIONAL, UNLESS SUCH NON-FUNCTIONALITY IS DUE TO THE GIFT CARD BEING FULLY REDEEMED, OUR SOLE LIABILITY SHALL BE FOR THE REPLACEMENT OF SUCH GIFT CARD CODE.

5.6 Issuer:

Gift Cards are issued by BE, the bath experience




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