EXCEPT AS OTHERWISE DESCRIBED IN THE ARBITRATION AND DISPUTES SECTION BELOW, BY USING THE SERVICES, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. THESE TERMS ALSO CONTAIN A DISCLAIMER OF WARRANTIES AND A DISCLAIMER OF LIABILITY, AS WELL AS A RELEASE AND INDEMNIFICATION BY YOU.
PLEASE EXIT THE SERVICES IF YOU DO NOT AGREE TO THE TERMS.
- Changes to the Terms
We reserve the right, in our sole discretion, to change these Terms at any time, and will publish a revised version of these Terms on the Services. All changes are effective immediately when we post them. However, any changes to the dispute resolution provisions set out below in the Arbitration and Disputes section will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Services.
Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
- Use of the Services
We grant you permission to use the Services subject to these Terms. Your use of the Services is at your own risk, including the risk you might be exposed to User Content (as defined below) that is offensive, indecent, inaccurate, objectionable, incomplete, fails to provide adequate warning about potential risks or hazards or is otherwise inappropriate.
Your right to access and use the Services shall automatically terminate upon any violation of these Terms. These rights are non-exclusive, limited and revocable by us at any time in our sole discretion without advance notice or liability. You may not assign or transfer your right to use the Services. All rights not expressly granted to you are reserved by Exploring Colors.
We reserve the right to withdraw or amend the Services, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.
- Your Account
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You agree to maintain the security of your account information and you are responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
- Communications from Us
- Products and Services Offered
All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on the Site are subject to change at any time without notice. Certain weights, measures and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Site does not imply or warrant that these products or services will be available. We reserve the right, at any time, to modify, suspend or discontinue the sale of any product with or without notice.
We strive to display as accurately as possible the colors of the products shown on the Site; however, we cannot and do not guarantee that your monitor’s display of any color will be accurate.
BY SUBSCRIBING YOU AGREE TO PAY THE MONTHLY SUBSCRIPTION FEE FOR THE PRODUCTS THAT ARE SUPPLIED EACH MONTH. SUBSCRIPTIONS WILL RENEW FOR SUCCESSIVE PERIODS UNTIL CANCELED PURSUANT TO THESE TERMS.
- Availability, Errors and Inaccuracies
If an item is out of stock, we may, in our sole discretion and at no extra cost to you, substitute another item for the out-of-stock item if we, in our sole discretion, determine that the identical brand and product is available in a form that is of equal or greater value, for example, larger quantity, packaged with a trial sample or with updated product packaging.
Our acknowledgment of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. Despite making an effort to describe and display our products and services accurately on the Site, a small number of items on the Site may be mispriced, described inaccurately or unavailable, and we may experience delays in updating information on the Site and in our advertising on other websites. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services. We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. We apologize for any inconvenience. As part of our shipping procedures, we verify the availability and the price before an item is shipped. If an item’s correct price is higher than our stated price, if the item is no longer available or if we determine that there were inaccuracies in our product information, we will cancel you order and notify you of such cancellation by email.
- Give $10, Get $10, Gift 10
Our referral program is known as Give $10, Get $10, Gift 10 and is operated by a third party service. For each person that you refer using your own unique referral link, that person will receive $10 off their first box and you will receive $10 when they purchase a subscription. Only one payment per referral link and payments are only for the purchase of a Exploring Colors subscription and not any other merchandise we may sell. You may obtain a referral link on our website in the Give $10, Get $10, Gift 10 section or we may send you a referral link by email. In addition, for every 10 cumulative referrals that result in the purchase of a paid Exploring Colors subscription we will donate an Exploring Color box to a child in a hospital or an underserved community.
- Risk of Loss
Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Site passes to the purchaser upon delivery to the carrier.
- Payment Terms
For each product that you order on the Site, you agree to pay the price applicable for the product as of the time you submitted your order (“Product Price”), the delivery fees for the delivery service or product you select, as appropriate (“Delivery Fees”) and any applicable taxes, fees, duties, government charges and any related penalties and interest, arising from the product purchase (“Taxes”) not withheld by the Company.
- Subscription Terms/Payment
Ongoing Subscription and Fees. When you purchase a subscription, you authorize Exploring Colors to immediately bill your payment card for the initial subscription period. Please note that if your subscription includes a discounted Product Price for a promotional period, once the promotional period expires, your subscription will renew at the full Product Price. By signing up for a subscription, you authorize Exploring Colors to bill your payment card in the amounts and on the schedule specified in the confirmation email, on the applicable billing dates. We will bill you in advance for your subscription.
Your subscription will continue and automatically renew on a recurring basis corresponding to the term of your subscription unless and until you cancel your subscription or your account is otherwise suspended or terminated pursuant to these Terms.
We reserve the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of the next Billing Period following the date of the change. We will give you advance notice of these changes, but we will not be able to notify you of changes in any applicable taxes.
Payment Method. Unless otherwise indicated, you will be required to provide a credit card or other payment method accepted by Exploring Colors, as may be updated from time to time (“Payment Method”). You authorize us (and any payment processor) to charge your Payment Method for all purchases you make, including regularly for Subscriptions, which automatically renew. We accept the forms of payment stated on the Site and, for credit and debit card payments, charge your credit or debit card when your order is processed. The bank issuing your credit or debit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the Payment Method you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (a) you providing complete personal, account, transaction and any other information needed, (b) authorization of the payment by your credit or debit card company, and (c) acceptance of your payment. If you want to use a different Payment Method than the one you signed up to use during registration, you may edit your Payment Method by logging into your account
We may suspend or cancel your subscription if our third party payment service is unable to successfully charge a valid Payment Method. We also reserve the right to pursue any amounts you fail to pay in connection with your subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys' fees, and arbitration or court costs.
Billing Period. As used in these Terms, “billing” shall indicate either a charge or debit, as applicable, against your Payment Method. Our third party payment service provider will automatically bill your Payment Method on the day you start your subscription, and again on the 10th day of the last month of your applicable subscription term. Here are two examples:
- Suppose you sign up on January 8thfor a six month subscription, then your credit card is charged on January 8th and then would be charged again on June 8th which is the 10th day of the last month of your six month subscription term.
- If you signed up on January 8 for a one month subscription then your credit card would be charged on January 8th for the one month and then you would be charged on February 10th which is 10th day of the of the last month of your applicable subscription term unless you canceled your subscription.
Your “Billing Period” is the interval of time between each recurring billing date and corresponds to the term of your subscription. To see your next recurring billing date, log into your account.
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR THE SAME PERIOD OF TIME AS YOUR INTIAL SUBSCRIPTION UNLESS YOU CANCEL.
Cancellation and Refunds.
See Refund Policy.
Termination. We may terminate your subscription immediately by providing written notice to you (either by email or letter). If we terminate your subscription as a result of a material breach of these Terms, you will not be entitled to a refund of any previously paid amount.
- Product Disclaimer
WARNING: CHOKING HAZARD – SMALL PARTS. NOT FOR CHILDREN UNDER 3 YEARS. YOU ACKNOWLEDGE THAT THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE BY CHILDREN UNDER THE AGE OF THREE (3) AND MAY CONTAIN SMALL PARTS.
WARNING: SHARP EDGE WARNING- SCISSORS. YOU ACKNOWLEDGE THAT SOME PRODUCTS, SUCH AS SCISSORS, MAY HAVE FUNCTIONAL SHARP POINTS THAT MAY RESULT IN INJURY.
PRODUCTS SHOULD BE HANDLED WITH CARE AND NOT USED WITHOUT ADULT SUPERVISION. IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, IN WHOLE OR IN PART, FOR ANY CLAIMS, LIABILITY, DAMAGES, LOSS OR COSTS ARISING FROM SUCH USE.
Some of your activity on and through the Services is public, such as content you post publicly on the Services (including descriptions, text, sound, information, data, software, graphics, comments, reviews, photos, videos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users such as images of artwork or comments on blog posts) (“User Content”). Additionally, if you post a review of a product, your user profile name and the content of your message may be displayed to other users on the Services.
Responsibility for Your User Content. You alone are responsible for your User Content, and once posted to the Services, it cannot always be withdrawn. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy or reliability, and any risks associated with the personal information you disclose. You represent that you own or have the necessary permissions to use and authorize the use of your User Content as described herein. You may not imply that your User Content is in any way sponsored or endorsed by Exploring Colors.
You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading or defamatory; violates any third-party right, including any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; violates or advocates for the violation of any law; or violates these Terms.
Our Right to Use Your User Content. With respect to your User Content, you represent and warrant that you own all right, title and interest in and to, or otherwise have all necessary rights and consents to (and to allow others to) fully exploit, such User Content, including, without limitation, as it concerns all copyrights, trademark rights and rights of publicity or privacy related thereto. We may use your User Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it and allowing others to do the same in connection with their own websites and media platforms. By uploading, sharing, providing or otherwise making available any User Content, or any portion thereof, in connection with the Services, you hereby grant and will grant Exploring Colors and its affiliates, licensees and sub-licensees a nonexclusive, worldwide, royalty free, fully paid up, assignable, transferable, sub-licensable, perpetual, irrevocable license to reproduce, display, upload, perform, distribute, store, modify and otherwise use your User Content for any purpose, including in connection with the operation of the Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Without limiting the foregoing, if any User Content contains your name, image or likeness, you hereby release and hold harmless Exploring Colors and its contractors and employees, from (i) all claims for invasion of privacy, publicity or libel, (ii) any liability or other claims by virtue of any blurring, distortion, alteration, optical illusion or other use or exploitation of your name, image or likeness, and (iii) any liability for claims made by you (or any successor to any claim you might bring) in connection with your User Content, name, image or likeness. You waive any right to inspect or approve any intermediary version(s) or finished version(s) of the results of the use of your User Content (including your name, image or likeness). You irrevocably waive, and cause to be waived, against Exploring Colors and its users any claims or assertions of moral rights or attribution with respect to your User Content. Further, if any person (other than you) appears in your User Content, you represent and warrant that you have secured all necessary licenses, waivers and releases from such person(s) for the benefit of Exploring Colors in a manner fully consistent with the licenses, waivers and releases set forth above. You further acknowledge that your participation in the Services and submission of User Content is voluntary and that you will not receive financial compensation of any type associated with the licenses, waivers, and releases set forth herein (or Exploring Colors’ exploitation thereof), and that the sole consideration for subject matter of this agreement is the opportunity to use the Services.
We and our licensees may publicly display advertisements, paid content and other information nearby or in association with your User Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
Other. We do not guarantee that any User Content will be made available through the Services. User Content does not necessarily reflect the opinion of Exploring Colors and we do not approve, control or endorse any User Content. Except as required by law, we have no obligation to retain or provide you with copies of your User Content, and we do not guarantee you any confidentiality with respect to your User Content. We reserve the right to, but do not have any obligation to, remove, reject, delete, move, re-format or refuse to post any User Content, in our sole discretion, at any time, without notice or liability to you or any third party in connection with operation of the Services in an appropriate manner (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content, or if we are concerned that you may have violated these Terms).
- Intellectual Property Rights
The Services, including all materials, content and information therein (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), and all trademarks, service marks or other brands or names of Exploring Colors or other intellectual property (collectively, “Content”), are owned by the Company, our licensors or other providers of such material. All right, title and interest in and to the Content via the Services is the property of the Company or our licensors or certain other third parties and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property, proprietary and unfair competition rights and laws to the fullest extent possible.
Subject to these Terms, we hereby grant you a non-exclusive, non-assignable, non-transferable, limited license, without the right to sublicense, to access and use, the Services solely for your personal, non-commercial use only (or such other use as we expressly provide). Except for the limited license granted to you under these Terms, no other license is granted to you, whether by implication, estoppel or otherwise and all rights are explicitly reserved.
- Prohibited Uses
You may use the Services only for lawful purposes and in accordance with these Terms. You agree to fully cooperate with any request we make for evidence we deem necessary to verify your compliance with these Terms. You agree not to use the Services, and not to assist, encourage or enable others to use the Services:
- To violate our Terms.
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personal information, or otherwise.
- To violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, including conduct in support of hate, violence, harassment, discrimination, bullying, stalking or terrorism, or which, as determined by us, may harm the Company or users of the Services, or expose them to liability.
- To modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade or in any way exploit the Website or its Content (other than your User Content), except as expressly authorized by Exploring Colors.
Additionally, you agree not to:
- Use the Services in any manner, in our sole discretion, that could disable, overburden, damage or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider or other automatic device, process or means to access the Services for any purpose, retrieve, copy, scrape or index any portion of the Services, except as expressly permitted by Exploring Colors.
- Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Services.
- Reverse engineer any portion of the Services, unless applicable law prohibits this restriction, in which case you agree to provide us 30 days’ prior notice at the email address below.
- Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services.
- Record, process or mine information about users.
- Access, retrieve or index any portion of the Services for purposes of constructing or populating a searchable database of business reviews.
- Reformat or frame any portion of the Services.
- Use the Services to transmit any viruses, Trojan horses, worms, defects, logic bombs, malicious code, spyware, malware or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services; the server on which the Website is stored; or any server, computer or database connected to the Services or user accounts.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Use the Services to violate the security of any computer network, crack passwords or security encryption codes, disrupt or interfere with the security of, or otherwise cause harm to, the Services.
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of the Services or features that enforce limitations on the use of the Services.
- Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Exploring Colors’ technology infrastructure or otherwise make excessive traffic demands of the Services.
- Otherwise attempt to interfere with the proper working of the Services.
- Monitoring and Enforcement; Termination
We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
We have the right to:
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Investigate any suspected breach of the security of the Services or our information technology or other systems or to investigate any suspected breaches of these Terms or any additional applicable terms or any potential harm to our users or third parties.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
We assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
- Additional Terms
Your use of the Services is subject to any and all additional terms, policies, rules or guidelines that we may post on or link to from the Services. All such additional terms are hereby incorporated by reference into, and made a part of, these Terms.
- Suggestions and Improvements
By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain any third-party confidential or proprietary information, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, (iv) we have no obligation to review, consider or implement the Feedback, or to return to you all or part of the Feedback, and (v) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sub-licensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Exploring Colors and its users any claims and assertions of any moral rights contained in such Feedback.
- Third-Party Content and Links to Third-Party Websites
The Services may include content that originates from parties other than Exploring Colors or our users, which is made available in connection with the Services (“Third-Party Content”). The Services may also provide or facilitate links, tools, widgets or other features that allow you to access other sites, services and resources provided by third parties (each a “Third-Party Service”). This includes links contained in advertisements, including banner advertisements. Third-Party Content and links to Third-Party Services are provided for your reference and convenience only, and do not imply any endorsement, sponsorship or recommendation by Exploring Colors. All non-Exploring Colors trademarks, names and logos appearing on our Services are the property of their respective owners.
We accept no responsibility for any Third-Party Content or Third-Party Services or for any loss or damage that may arise from your use of them. Your use of and reliance on any Third-Party Content or Third-Party Services is at your own risk. You acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, events, goods or services available on or through any such Third-Party Content or Third-Party Service.
Some of the services made available through the Services and Third-Party Services may be subject to additional third-party terms of service, privacy policies, licensing terms and other terms, conditions or policies. If you decide to access any of the Third-Party Services, you do so entirely at your own risk and it is your responsibility to familiarize yourself with any such applicable third-party terms.
- Intellectual Property Rights of Others
In using the Services, you must respect the intellectual property and other rights of the Company and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications and other laws, and any such use may result in your personal liability, including potential criminal liability. Exploring Colors respects the intellectual property rights of others.
- Claims of Copyright Infringement
If you believe that your work has been reproduced in connection with the Services in a manner that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by sending a written notification to us at the address below, with the following information: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest, (ii) identification of the copyrighted work claimed to have been infringed, (iii) a description of where the material that you claim is infringing is located within the Services, (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address, (v) a signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law, and (vi) a signed statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or you are authorized to act on behalf of the owner.
Notification pursuant to the DMCA should be submitted to:
Exploring Colors, LLC
441 Central Park Avenue #638 , Hartsdale, NY 10530
- Geographic Restrictions
We provide the Services for use only by persons located in the United States. We make no claims that the Services are accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- Disclaimer of Warranties
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF EXPLORING COLORS TO YOU. THIS SUBSECTION APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. BY ACCESSING OR USING THE SERVICES YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THESE TERMS. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
YOUR USE OF THE SERVICES, ITS CONTENT AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE SERVICES, THE WEBSITE, ALL CONTENT and USER CONTENT ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND WITH THE EXPRESS UNDERSTANDING THAT EXPLORING COLORS MAY NOT MONITOR, CONTROL OR VET USER CONTENT OR THIRD-PARTY CONTENT.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ON ANY WEBSITE LINKED TO IT.
NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES, INCLUDING THE CONTENT OR USER CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT OR USER CONTENT ON THE SERVICES, YOUR RELIANCE ON THE CONTENT FOUND ON OR MADE AVAILABLE THROUGH THE SERVICES OR ANY PRODUCTS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA REPUTATIONAL HARM, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
EXPLORING COLORS’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THESE TERMS, THE SERVICES OR THE PRODUCTS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO EXPLORING COLORS IN CONNECTION WITH THE SERVICES IN THE 6 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (ii) $50.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Indemnification and Release
As permitted by applicable law, you agree to defend (if we request), indemnify and hold harmless the Company, its affiliates, any related companies, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees and court costs) arising out of or relating to (i) your access to or use of the Services, including User Content, (ii) your violation of these Terms or breach of any representations and warranties you provide under these Terms, (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes ordinances or orders of any governmental or quasi-governmental authorities in connection with you use of the Services or your activities in connection with the Services, (iv) any products or services purchased or obtained by you in connection with the Services, (v) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, or (vi) the Company’s use of your User Content (collectively, “Claims and Losses”). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, the Company retains the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, including the exclusive right to settle, compromise and pay any and all Claims and Losses. You agree not to settle any Claims and Losses without, in each instance, the prior written consent of an officer of the Company.
You agree that you bear all risk and, in consideration of the services provided by Exploring Colors, you hereby release Exploring Colors, its affiliates and their respective officers, directors, employees, contractors, shareholders, agents, representatives, licensors, licensees and suppliers from all claims, demands, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Services and your use of, or transactions with, Exploring Colors, businesses or other third parties (including any claims under any federal or state tort or consumer protection laws). You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the civil code of the state of California or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that you may lawfully waive all such rights and benefits.
- Arbitration and Dispute
ARBITRATION CLAUSE & CLASS ACTION WAIVER- IMPORTANT- PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
Arbitration; Class Action Waiver. YOU AGREE THAT ALL COVERED DISPUTES (AS DEFINED BELOW) BETWEEN YOU AND THE COMPANY AND ITS AFFILIATES AND LICENSORS AND ITS AND THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS, ACTING IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH COVERED DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION COVERED DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SERVICES AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING OUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and the Company agree that we intend this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section 25 can only be amended by mutual agreement.
Pre-Arbitration Notification. If any controversy, allegation or claim arises, between you and the Company, its affiliates or licensors, and its or their employees, contractors, agents, officers, directors, successors or assigns (collectively for purposes of this Arbitration and Disputes Section, the “Company”), arising out of or relating to the Services or any products or services obtained through the Services, including without limitation these Terms and their interpretation or the breach, termination or validity thereof, or our privacy practices related to the Services (collectively, “Covered Disputes”), or to any of our actual or alleged intellectual property rights (an “Excluded Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Covered Dispute or Excluded Dispute, along with a proposed resolution of it. We will provide such notice by e-mail to your e-mail address on file with the Company. If no such information exists or if such information is not current, then we have no notification or delay obligations under this section. If you are making a claim, you must provide such notice by e-mail to us at email@example.com. For a period of 60 days from the date of receipt of the notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Covered Dispute or Excluded Dispute, though nothing will require either you or the Company to resolve the Covered Dispute or Excluded Dispute on terms with respect to which you and the Company, in each of our sole discretion, are not comfortable.
Arbitration. If we cannot resolve a Covered Dispute as set forth above in “Pre-Arbitration Notification” (or agree to arbitration in writing with respect to an Excluded Dispute) within 60 days of receipt of the notice, then, subject to this Section 25 and as permitted by applicable law, ANY AND ALL DISPUTES ARISING BETWEEN YOU AND THE COMPANY (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE LEGAL DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE CONNECTED TO THE PROVISION OR USE OF THE SERVICE. The Federal Arbitration Act, not state law, shall govern the arbitrability of disputes between the Company and you regarding the Terms and the Services. The Company and you agree, however, that New York state law or federal law shall apply to and govern, as appropriate, any and all claims or causes of actions, remedies and damages arising between you and the Company, whether arising or stated in contract, statute, common law or any other legal theory, without regard to the State of New York’s choice of law principles that might apply other laws.
Disputes will be resolved solely by binding arbitration in accordance with the then-current Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Covered Dispute to the AAA for formal arbitration and the AAA is unwilling to arbitrate the Covered Dispute then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of the Company consent to in writing. If an in-person arbitration hearing is required, you agree that the hearing will be conducted in Westchester County, New York or the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are resident at the time the Covered Dispute is submitted to arbitration. You and we will pay the administrator and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; if applicable arbitration rules or laws require the Company to pay a greater portion of all such fees and costs in order for this Section 25 to be enforceable, then the Company will have the right to pay the fees and costs and proceed to arbitration in the city within the United States where you reside. The arbitrator will apply applicable law and the provisions of these Terms and any additional applicable terms, and will be bound by these Terms and any additional applicable terms, will determine any Covered Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide. This arbitration clause shall survive the termination of these Terms.
Injunctive Relief. The foregoing provisions of this Section 25 will not apply to any legal action taken by the Company or you to seek an injunction or other equitable relief in connection with, any potential loss, cost or damage (or any potential loss, cost or damage) relating to the Services, any Content or User Content, your breach of these Terms or the Company’s intellectual property rights (including such that the Company may claim in a dispute), the Company’s operation and/or the Company’s products or services; provided, however, your rights are subject to the conditions set out below in “Waiver of Certain Injunctive or Other Equitable Relief.”
No Class Action Matters.Covered Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or proceedings that involve any claim or controversy of any other party. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Covered Dispute, or Excluded Dispute, to be determined on a class action basis or on any basis involving Covered Disputes, or Excluded Disputes, brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in this Section 25 to arbitrate will not apply and the Covered Dispute must be brought exclusively in court pursuant to the provisions in this Section.
Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
Governing Law.Except to the extent that arbitration is required in this Section 25, and except as to the enforcement of any arbitration decision or award, to the extent permitted by applicable law, any action or proceeding relating to any Covered Dispute or Excluded Dispute may only be instituted in state or Federal Court in Westchester County, New York. Accordingly, you and the Company consent to the exclusive personal jurisdiction and venue of such courts for such matters. The court will apply to the laws of the State of New York, U.S.A., without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claims of Covered Disputes (but not Excluded Disputes) in small claims court, subject to the provisions in this Section regarding jury trials, class actions and governing law.
Limitation on Time to File Claims.ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver of Certain Injunctive or Equitable Relief
AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY THE COMPANY OR LICENSOR OF THE COMPANY.
- Waiver and Severability
No waiver by the Company of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
The Company may assign our rights and obligations under these Terms and any additional applicable terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable additional terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of the Company.
- Your Comments and Concerns
All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to firstname.lastname@example.org.