Terms and Conditions

Thank you for visiting WhoSmellsGood.com! This agreement governs your use of this website ("Site"). If you are not satisfied with or do not accept the terms contained herein, please refrain from accessing and using this Site.

By using the WhoSmellsGood website, you acknowledge having read and accepted the following Terms and agree to comply with and be bound by all applicable laws and regulations, including any applicable United States export and re-export control laws and regulations.

It is your responsibility to review these Terms periodically, as we may revise these Terms at any time without notice to you. If at any time you find these Terms unacceptable or if you do not agree to these Terms, please do not use this Site. Questions regarding these Terms should be directed to Customer Service.

 

Terminology

The following terminology applies to these Terms and Conditions:

“WhoSmellsGood.com”, “WhoSmellsGood”, "We", "us" and "our" refer to WhoSmellsGood. "User," "you" and "your" refers to you, the site visitor and/or member. "Terms" refers to these Terms and Conditions. “Agreement” refers to this Agreement. "Content" refers to any text, abstracts, metadata, software, scripts, graphics, logos, files, images, photos, sounds, music, videos, interactive features, information, documents and related components made available throughout the Site.

 

Use of the site

By using the site and registering for an account, you agree that you are at least 18 years of age or that you are visiting the site under the supervision of a parent or guardian, and you agree that you are legally able to enter into a contract.

WhoSmellsGood's Privacy Policy and Shipping and Returns Policy are incorporated by reference into this Agreement, however we encourage you to also refer to their individual policy details for further explanation. These policies may also be revised at any time without notice to you.

Subject to the Terms, WhoSmellsGood hereby grants you a limited, nonexclusive, revocable, non-transferable and non-sublicensable right to access, display, and view the Site and Content for personal, non-commercial use. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.

User shall abide by all copyright notices, information, and restrictions contained in any Content accessed through this Site.

Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer or otherwise exploit this Site or any portion of its Content unless expressly permitted by WhoSmellsGood in writing. You may not make any commercial use of the information provided on the Site use the Site for the benefit of another business unless explicitly permitted by WhoSmellsGood in advance and in writing. WhoSmellsGood reserves the right to refuse service, terminate accounts and/or memberships, and/or cancel orders at its discretion, including, without limitation, if WhoSmellsGood believes that User conduct is harmful to WhoSmellsGood's interests or violates applicable law.

Certain portions of this Site may require a password and account identification to enable your access and use. Each time you use a password or identification constitutes authorization to access and use the Site in a manner consistent with the Terms. WhoSmellsGood is not obligated to investigate the authorization or source of any such access or use of the Site.

You will be solely responsible for all access to and use of this site by anyone using the password and identification originally assigned to you, regardless of whether or not such access to and use of this site is actually authorized by you. This includes, without limitation, all communications and transmissions as well as all obligations (including without limitation financial obligations) incurred through such access or use.

You are solely responsible for protecting the security and confidentiality of your password and identification. Any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security must be immediately reported to WhoSmellsGood.

 

User submissions

The Site may permit the upload, submission, and distribution of texts, images, material, information, and communications by you and other users ("User Submissions"). You understand that WhoSmellsGood does not guarantee any confidentiality with respect to any such submissions, whether or not such User Submissions are published.

By submitting User Submission(s) to this Site or displaying, publishing, posting or otherwise making available any content on or through the Site, you hereby grant WhoSmellsGood a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submission(s) in connection with the Site and WhoSmellsGood's (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and channels. You also hereby grant each user of the Site a non-exclusive license to access the User Submission(s) through the Site, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Site. For clarity, the foregoing license grant to WhoSmellsGood does not affect your other ownership or license rights in your User Submission(s).

You shall not upload, submit, distribute, or otherwise publish through this Site any texts, images, communications, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful or malicious code or properties.

You shall not submit any "deep-link," "page-scrape," "robot," "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process to access, acquire, copy, or monitor the Site or any portion of the Content.

Content provided on this site is solely for informational purposes. User Submissions or opinions expressed on this Site are that of the individual expressing such User Submission or opinion and may not reflect the opinions of WhoSmellsGood. Product representations expressed on this Site are not made by WhoSmellsGood.

You shall be responsible for your User Submissions and the consequences of posting or publishing them. You agree that WhoSmellsGood has no liability with respect to any User Submissions. You hereby release WhoSmellsGood and its officers, directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof.

WhoSmellsGood reserves the right to decide whether a User Submission is inappropriate or violates this Agreement, including but not limited to copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. WhoSmellsGood also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by you, or to restrict, suspend or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice. Notwithstanding the foregoing, WhoSmellsGood assumes no responsibility for monitoring the Site for inappropriate content, or modifying or removing such content from the Site.

 

Ownership

This Site is owned and operated by Fragrance Ventures, LLC (“Fragrance Ventures”), doing business as WhoSmellsGood. All right, title and interest in and to the Content provided on this Site are owned either by Fragrance Ventures or by our respective third party authors, developers or vendors ("Third Party Providers"). Except as otherwise expressly provided by Fragrance Ventures or WhoSmellsGood, none of the Content may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on this Site shall be construed to confer any license under any of Fragrance Ventures’ intellectual property rights, whether by estoppel, implication or otherwise. You must contact Customer Service if you have any questions about obtaining such licenses. Fragrance Ventures does not sell, license, lease or otherwise provide any of the Content other than those specifically identified as being provided by Fragrance Ventures. Any rights not expressly granted herein are reserved by Fragrance Ventures.

 

Shipping, returns and exchanges

Your purchase will be sent according to our Shipping and Returns Policy.

Shipping, return and exchange of any merchandise ordered through the Site or in connection with your account are subject to the WhoSmellsGood Shipping and Return Policy. All items returned for a refund are subject to a $5.95 restocking fee, to be deducted from the amount refunded to the card used for purchase.

Replacement of products and store credit to your account for shipped merchandise claimed as not received are subject to our investigation, which may include, but is not limited to, postal-service notification and subsequent postal investigation. We will adjust your account at our discretion. Repeated claims of undelivered merchandise may result in the cancellation of your account.

 
 

Paying By Credit Card

For your convenience, when you make your first purchase on the Site using your account, we will save your credit or debit card information and use it for all future shipments which will automatically be charged to your saved card, unless you notify us online or through Customer Service. We accept the following credit cards at this time: American Express, VISA, MasterCard and Discover Card.

 

Using Store Credit

WhoSmellsGood store credit can be redeemed on all purchases excluding gift card orders and select promotions, and may be applied to shipping, processing fees and taxes. Unused credit will be forfeited if you choose to cancel your WhoSmellsGood account. WhoSmellsGood reserves the right to change these terms and conditions at our discretion.

 

Member Privacy

By becoming a Member of WhoSmellsGood, you agree to receive advertising, marketing materials and other communications from WhoSmellsGood.com, its third-party service providers and its affiliates. Your personal information will be held in accordance with WhoSmellsGood's Privacy Policy.

 

Additional Terms

 

By continuing your account, you accept and agree to the terms of this Agreement and any changes made by us to it. If you do not wish to be bound by this Agreement, please see above for how to cancel your account. Your edits or changes to either the online or offline versions of this Agreement or an account offer will not be effective, regardless of form.

You must provide and keep us up to date with accurate account information, including your name, address, credit card number and expiration dates. You agree that we may update your information with information your bank or credit card issuer may supply, or other information available to us. All such personal information is subject to our Privacy Policy, incorporated into this Agreement. We are not responsible for any fees or charges that your bank or credit card issuer may apply. If your credit card issuer reverses a charge to your credit card, we may bill your account directly and seek payment by another method including a mailed statement.

 

Risk of loss

The risk of loss and title for items purchased by you pass to you upon WhoSmellsGood's delivery of the items to the carrier pursuant to the WhoSmellsGood Shipping Policy.

 

Local taxes

You may be charged local sales tax, if applicable.

 

International access

This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.

 

Account cancellations

We will do everything to make your experience as satisfying as possible; however, you are free to cancel your account any time by contacting Customer Service at 1-800-560-7635, Monday-Friday from 9am - 5pm Eastern Time. We may terminate your account, without notice, for conduct that we believe violates this Agreement or our policies, is harmful to other clients or our business interests, or for an inactive account.

 

Disclaimer and limitation of liability

Except as otherwise provided in the standard terms of sale that govern the sale of each product on this site, the products offered for sale on it and the transactions conducted through it are provided by WhoSmellsGood on an "AS IS" basis. WhoSmellsGood makes no representations or warranties of any kind, express or implied, as to the operation of the site or the information, content, materials, or products included on this site except as provided herein. To the full extent permissible by applicable law, WhoSmellsGood disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, noninfringement, title, quiet enjoyment, data accuracy and system integration. This site may include inaccuracies, mistakes or typographical errors. WhoSmellsGood does not warrant that the content will be uninterrupted or error free.

To the maximum extent permitted by law, WhoSmellsGood will not be liable for any damages of any kind arising from the use of this site, including, but not limited to indirect, incidental, punitive, exemplary, special or consequential damages. to the maximum extent permitted by applicable law WhoSmellsGood's total liability to you for any damages (regardless of the foundation for the action) shall not exceed in the aggregate the amount of fees actually paid by you to WhoSmellsGood during the year immediately preceding the act allegedly giving rise to WhoSmellsGood's liability.

 

Typographical errors

In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, WhoSmellsGood shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. WhoSmellsGood shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, WhoSmellsGood shall immediately issue a credit to your credit card account in the amount of the charge.

 

Copyright complaints

All Site design, text, graphics, the selection and arrangement thereof, are Copyright © 2013-2016, Fragrance Ventures, LLC. ALL RIGHTS RESERVED. Fragrance Ventures respects the intellectual property of others. If you believe that any of our work, or any of your work has been copied in a way that constitutes copyright infringement, please contact Customer Service.

 

Trademarks

WhoSmellsGood, WhoSmellsGood.com, the flower logo, all images and text, and all page headers, custom graphics and button icons are service marks, trademarks, and/or trade dress of Fragrance Ventures, LLC. All other trademarks, product names and company names or logos cited herein are the property of their respective owners. Please contact Customer Service if you are aware of any infringement.

 

Links to third party sites

This Site may contain links to websites controlled by parties other than WhoSmellsGood (each a "Third-Party Site"). WhoSmellsGood may work with certain partners and affiliates whose sites are linked with WhoSmellsGood. WhoSmellsGood is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Site, any web site accessed from a Third Party Site or any changes or updates to such sites. WhoSmellsGood makes no guarantees about the content or quality of the products or services provided by such sites. WhoSmellsGood is not responsible for webcasting or any other form of transmission received from any Third Party Site. WhoSmellsGood is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by WhoSmellsGood of the Third Party Site. You acknowledge that you bear all risks associated with access to and use of content provided on a Third Party Site and agree that WhoSmellsGood is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third Party Site if you have any concerns regarding such links or the content located on any such Third Party Site.

 

Indemnification

You agree to indemnify, defend and hold harmless WhoSmellsGood, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) due to, arising out of or relating in any way to your use of, access to, the Site or other services. WhoSmellsGood reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WhoSmellsGood in asserting any available defenses. No right or remedy of WhoSmellsGood shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses. No instance of waiver by WhoSmellsGood of its rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.

 

Contracting Party, Choice of Law, Location for Resolving Disputes, Contact Information

This Agreement is between you and WhoSmellsGood. Communications may be directed to: WhoSmellsGood, 4025 Elmwood Avenue, Louisville, Kentucky, 40207. The laws of the state of Kentucky govern the interpretation of this Agreement and any disputes arising in connection with it, regardless of conflict of laws principles. Any claim or dispute between you and WhoSmellsGood that arises out of or relates to this Agreement shall be resolved by binding arbitration pursuant to the Standard Terms. You hereby agree to waive any right to trial by jury in any dispute. All capitalized terms not defined herein shall have the same meaning as in the Standard Terms.

 

Dispute Resolution

In order to expedite and control the cost of disputes, you and we agree that any legal or equitable claim arising out of or relating in any way to your use of the Site or related services or these Terms, and the formation, validity, enforceability, scope, or applicability of this Agreement, will be resolved as follows: We will try to resolve any every claim informally. Accordingly, neither of us may start a formal proceeding for at least 90 days after one of us notifies the other of a claim in writing. Notice of the claim will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You will send your notice by contacting WhoSmellsGood directly.

 

Statute of Limitations

Regardless of any statute or law to the contrary or the applicable dispute resolution process, an informal complaint pertaining to any claim or cause of action arising out of or related to use of the Site or related services or under the Terms must be filed with WhoSmellsGood within one (1) year after such claim or cause of action arose or be forever barred.

 

Demand for Arbitration

 

Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. WhoSmellsGood is committed to resolving all disputes in a fair, effective, and cost-efficient manner. Accordingly, our Terms and Conditions (the "Terms") provide that disputes shall be resolved informally first, and if cannot be resolved within one (1) year of notifying WhoSmellsGood, the dispute will be resolved in binding arbitration or small claims court. WhoSmellsGood's arbitration provision, which is set forth below, has been designed to make arbitration as convenient and inexpensive for our customers as possible. Among other things, it specifies that WhoSmellsGood will bear all costs of arbitration (unless a customer's claims exceed $10,000 or an arbitrator determines that the claims are frivolous), and that, under certain circumstances (explained in the arbitration provision), WhoSmellsGood will pay a premium if a customer receives an arbitration award greater than the value of WhoSmellsGood's settlement offer, and will pay the customer's reasonable attorney's fees. As part of WhoSmellsGood's commitment to a fair, effective, and cost-efficient resolution of all disputes, WhoSmellsGood has made its current arbitration provision available to all current and former customers. WhoSmellsGood will abide by the terms of its current arbitration provision in all instances. Customers whose Terms include arbitration provisions that differ from the current arbitration provision may arbitrate pursuant to the terms of either arbitration provision at their discretion. Similarly, former customers whose Terms did not include an arbitration provision may arbitrate their disputes under the current arbitration provision.

 

Dispute resolution by binding arbitration

Please read this carefully. It affects your rights.

 

Summary:

Most customer concerns can be resolved quickly and to the customer's satisfaction by contacting Customer Service. In the unlikely event that WhoSmellsGood's Customer Service is unable to resolve your complaint to your satisfaction within one (1) year of notification (or if WhoSmellsGood has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or in small claims court rather than in a court of general jurisdiction. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $10,000, WhoSmellsGood will pay all costs of the arbitration. Moreover, in arbitration you may recover attorney's fees from WhoSmellsGood to the same extent or more as you would in court. Under certain circumstances (as explained below), WhoSmellsGood will pay you more than the amount of the arbitrator's award and will pay your attorney (if any) his or her reasonable attorney's fees if the arbitrator awards you an amount greater than what WhoSmellsGood offered you to settle the dispute.

 

Arbitration Agreement:

(a) WhoSmellsGood and you agree to arbitrate all unresolved disputes and claims between us before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted. It applies, without limitation, to:

  • Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.
  • Claims that arose before these or any prior Terms (including, but not limited to, claims relating to advertising);
  • Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
  • Claims that may arise after termination of these Terms.

For the purposes of this Arbitration Agreement, references to "WhoSmellsGood "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms or any prior agreements between us.

Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into these Terms, you and WhoSmellsGood are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction or website use in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.

(b) A party who intends to seek arbitration if a dispute is still unresolved from the one (1) year anniversary from the date of notice by you to WhoSmellsGood must first send, by U.S. certified mail, a written Notice of Dispute ("Notice") to the other party. A Notice to WhoSmellsGood should be addressed to: Notice of Dispute, General Counsel, WhoSmellsGood.com, 4025 Elmwood Avenue, Louisville, Kentucky, 40207 (the "Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought ("Demand"). If WhoSmellsGood and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or WhoSmellsGood may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by WhoSmellsGood or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or WhoSmellsGood is entitled.

You may download or copy a form to initiate arbitration from the AAA website at http://www.adr.org/si.asp?id=3477. (c) After WhoSmellsGood receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $10,000. (Currently, the filing fee is $125 for claims under $10,000, but this is subject to change by the arbitration provider. If you are unable to pay this fee, WhoSmellsGood will pay it directly after receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") of the American Arbitration Association (the "AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by these Terms. Unless WhoSmellsGood and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your contact address. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If you choose to proceed either in person or by telephone, we may choose to respond only by telephone or submission. If your claim exceeds $10,000, the AAA Rules will determine whether you have a right to a hearing. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. The parties agree that any awards or findings of fact or conclusions of law made in an arbitration of their dispute or claim are made only for the purposes of that arbitration, and may not be used by any other person or entity in any later arbitration of any dispute or claim involving WhoSmellsGood. The parties agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which WhoSmellsGood was a party. Except as otherwise provided for herein, WhoSmellsGood will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse WhoSmellsGood for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $10,000 in damages, the payment of these fees will be governed by the AAA rules. An award may be entered against a party who fails to appear at a duly noticed hearing.

(d) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of WhoSmellsGood's last written settlement offer made before an arbitrator was selected, then WhoSmellsGood will:

  • pay you either the amount of the award or $2,000 ("the alternative payment"), whichever is greater; and
  • pay your attorney, if any, the amount of attorney's fees, and reimburse any expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigation, preparing, and pursuing your claim in arbitration (the "attorney's fees").

If WhoSmellsGood did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney's fees, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney's fees at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

(e) The right to attorney's fees and expenses discussed in paragraph (d) supplements any right to attorney's fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorney's fees or costs. Although under some laws WhoSmellsGood may have a right to an award of attorney's fees and expenses if it prevails in an arbitration, WhoSmellsGood will not seek such an award.

(f) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND WHOSMELLSGOOD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the parties agree that any injunctive award may be vacated or corrected on appeal by either party to a court of competent jurisdiction for any such error. Each party will bear its own costs and fees on any such appeal. The arbitrator shall not award relief in excess of what these Terms provide or award punitive damages or any other damages not measured by actual damages. Further, unless both you and WhoSmellsGood agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

(g) All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential, other than as part of an appeal to a court of competent jurisdiction.

 

General Terms

 

Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WhoSmellsGood without restriction. Subject to the foregoing, the terms in this Agreement shall be binding on the parties and their respective successors and permitted assigns.

 

Controlling Law and Severability

This Agreement is governed by the laws of the Commonwealth of Kentucky, without regard to Kentucky’s conflict or choice of law provisions. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.

 

Entire Agreement

Unless otherwise specified herein, this Agreement constitute the entire agreement between any you, and or any Users and WhoSmellsGood with respect to the Site and any related services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and or any users and WhoSmellsGood with respect to the Site and any related services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

Waiver

The failure of WhoSmellsGood or you and or any users to enforce any rights granted under Agreement or to take action against the other party in the event of any breach of this Agreement will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

 

Updated November 19, 2016