Welcome to the Take Home Color, Inc. (“Take Home Color”) website located at www.takehomecolor.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site, any products sold or used by us, as well as use of our services when you visit one of our “Color Bar” hair color salon locations. To make these Terms easier to read, the Site, our services, products, Color Bar products and services are collectively called the “Services.”
AGREEMENT TO TERMS
Certain features of our Services may be subject to additional guidelines, terms, or rules, which will be posted with those features, and are incorporated herein (“Supplemental Terms”). By using our Services, you agree to be bound by these Terms (including any Supplemental Terms and any Requirements (as defined below)). If you don’t agree to these Terms, do not use the Services. If you use any of the Services, then you will be deemed to have agreed to all the Terms.
CHANGES TO TERMS OR SERVICES
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site, and/or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site or via the App, you are evidencing to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
WHO MAY USE THE SERVICES
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Take Home Color and are not barred from using the Services under applicable law. As long as you comply with these Terms, you may view and use our Services for your personal, non-commercial purposes. No other use of our Service is authorized.
REGISTRATION AND YOUR INFORMATION
If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this via the Site or App or through your account with certain third-party services such as: Facebook, Amazon, Instagram, Pinterest and Twitter (each, a “TPS Account”). If you choose the TPS Account option we’ll create your Account by extracting from your TPS Account certain personal information such as your name and email address and other personal information that your privacy settings on the TPS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
PURCHASES AND AUTO DELIVERY
We may sell products and services via the Services, which will be posted on the Services, with the applicable price. We may change these prices at any time and reserve the right to do so. We will charge the default payment method or any other payment method we have on file for your Account (e.g., credit card) for the applicable products and/or services purchased via your Account. We will also charge you for any applicable shipping charges. If applicable, shipping charges which will be disclosed to you prior to your purchase. Title and risk of loss pass to you upon our transfer of the products to a common carrier. We will also charge you for any applicable sales, use or other taxes. All amounts are payable and charged at the time your order is placed. Our charges do not include any charges from your mobile carrier (e.g. data and messaging plans), which you are responsible for paying to your carrier. All payments made to us for products and services are nonrefundable, except at the sole discretion of Take Home Color.
You may place a recurring order for a product or service via the Services. If you do so, we will charge your Account the first time you place this order, and then at the frequency thereafter that you choose depending on the product and/or service you purchase until you cancel this recurring order. You must cancel your auto delivery before it renews to avoid the billing of the next order. You will not receive a refund for any partial month cancellation. For further information, please contact us at firstname.lastname@example.org.
If we cannot collect amounts owing to us due to credit limits on your credit card or any other reason, you will not receive the product or service ordered. In addition, we may terminate your access to and use of the Services and avail ourselves of any other available remedy.
For information on order processing and shipping, please contact us at email@example.com
ACCOUNT CREDITS & GIFT CARDS
From time to time Take Home Color may place promotional codes and/or credits in your account or send them to you via email or other means of communications. These promotional credits can be used to purchase items featured on our Site. These credits are not redeemable for cash or refunds, or for certain items on our Site that may be excluded. At Take Home Color’s sole discretion, these promotional credits may be removed or reduced for any reason. In addition, Take Home Color reserves the right to cancel a promotion at any time and for any reason. Unless otherwise stated, credits expire six months from the date they are granted.
Take Home Color offers E-Gift Cards for purchase. E-Gift Cards never expire and carry no fees. E-Gift Cards can only be used to purchase eligible goods and services on takehomecolor.com and are not returnable or exchangeable after purchase (except as required by law).
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
CONTENT AND CONTENT RIGHTS
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
CONTENT OWNERSHIP, RESPONSIBILITY AND REMOVAL
Take Home Color does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Take Home Color and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
RIGHTS IN USER CONTENT GRANTED BY YOU
By making any User Content available through Services you hereby grant to Take Home Color a non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users and also in connection with advertising our products and services.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Take Home Color on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
RIGHTS IN CONTENT GRANTED BY TAKE HOME COLOR
Subject to your compliance with these Terms, Take Home Color grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
GENERAL PROHIBITIONS AND TAKE HOME COLOR’S ENFORCEMENT RIGHTS
You agree not to do any of the following:
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Take Home Color respects copyright law and expects its users to do the same. It is Take Home Color’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. If you believe your work or content has been copied and posted to the Site in a way that constitutes copyright infringement, please provide Take Home Color’s designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Services may contain links to third-party websites or resources, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third-Party Sites & Ads are not under our control and we are not responsible for any Third-Party Sites & Ads. We provide these Third-Party Sites & Ads only as a convenience and are not responsible for the content, products or services on or available from those Third-Party Site & Ads. You acknowledge sole responsibility for and assume all risk arising from, your use of any Third-Party Sites & Ads. We may also work with advertising partners that may deliver advertisements to you on or off our Site based on your activities on the Site or within the Services.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services or any Content. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING, AS NOTED ABOVE, ANY PERSON PROVIDING COLOR TO YOU OR COLOR BAR SERVICES TO YOU.
You will indemnify, defend and hold harmless Take Home Color and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content ive and your interactions with any Take Home Color personnel, (ii) your User Content, (iii) your violation of these Terms or any applicable law.
LIMITATION OF LIABILITY
NEITHER TAKE HOME COLOR NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TAKE HOME COLOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL TAKE HOME COLOR’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO TAKE HOME COLOR FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO TAKE HOME COLOR, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TAKE HOME COLOR AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
AGREEMENT TO ARBITRATE
You and Take Home Color agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by confidential binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the New York County, New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Take Home Color are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Take Home Color otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
ARBITRATION LOCATION AND PROCEDURE
Unless you and Take Home Color otherwise agree, the arbitration will be conducted in New York County, New York. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Take Home Color submit to the arbitrator, unless you or Take Home Color request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules or as otherwise provided by applicable law.
Notwithstanding the provisions of the “Changes to Terms of Service” section above, if Take Home Color changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Take Home Color’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Take Home Color in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Take Home Color and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Take Home Color and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Take Home Color’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Take Home Color may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Take Home Color under these Terms, including those regarding modifications to these Terms, will be given: (i) by Take Home Color via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Take Home Color’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Take Home Color. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies set forth in these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact us at: firstname.lastname@example.org.