TERMS OF SERVICE

TINTED Terms of Service

Effective Date: May 30, 2018.

The following Terms of Service (“Terms”) between you (“you” or “your”) and Deep Beauty Inc. (“we,” “our,” “us,” or “TINTED”) describes the terms and conditions on which you may access and use the TINTED website located at livetinted.com and the Shopify site located at https://livetinted.myshopify.com (collectively, the “Site”), and related content (the “Content”) and services (together with the Site, and the Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.

We reserve the right, at our sole discretion, to change or modify portions of the Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. You may read a current, effective copy of this Agreement at any time by selecting the “Terms of Service” link on the Site. We will also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms. You should periodically visit this page to review the current Terms so you are aware of any revision to which you are bound. If you do not agree to abide by this or any future Terms, do not use or access (or continue to use or access) the Site.

By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in the Arbitration section of these Terms below.

 

1. Privacy Policy

A. Please refer to our Privacy Policy for information about how we collect, use, disclose and otherwise process information about you.

 

2. Eligibility

A. Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site and App under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any clothing or accessories (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and purchase of any Products, including all legal liability he or she may incur.

 

3. Registration

A. You may register for an account on the Site (an “Account“). To use certain portions of the Site, you are not required to sign up for an Account. However, certain features of the Site, such as using the Find Your Hue feature, require you to register for an Account. You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s Account or registration information for the Site without permission. You must notify us immediately of any change in your eligibility to use the Site, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You have the ability to delete your Account at any time, as described in our Privacy Policy.

 

4. Use of the Services

A. TINTED Content CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“TINTED Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The TINTED Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any TINTED Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the TINTED Content.

B. Updates We may update the TINTED Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to info@livetinted.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.

C. Third Party Content LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-TINTED websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and TINTED is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from TINTED, and TINTED has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that TINTED endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa. We may participate in affiliate marketing and may allow affiliate links to be encoded on some of our pages. This means that we may earn a commission if/when you click on or make purchases via affiliate links.

D. Acceptable Use Policy USE OF TINTED CONTENT. No part of the Services, including the TINTED Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that TINTED authorizes you to view, copy, download, and print TINTED Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the TINTED Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the TINTED Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the TINTED Content.

USE OF THE SERVICES. You may not use the Services to: (i) transmit any content, information or other materials that are, or which TINTED considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a TINTED representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent’s consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.

INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend TINTED and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.

E. Your Content If you post, upload or make available to TINTED or the Services, or otherwise submit to or through TINTED as part of your use of the Services, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to TINTED a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize TINTED to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.

The Site may pull content from our users who share photos and videos on Instagram using our brand hashtags, including, without limitation, #livetinted, #tintfam, collectively, the “TINTED Hashtags”), or tagging the @TINTED account (collectively, “Photos”). You acknowledge and agree that the Photos may be used in TINTED’s showroom space, retail locations and emails and on the Site, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your Account or the Services. You represent and warrant that the posting and use of your Photos, including to the extent such Photos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights.

F. Your Account Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify TINTED promptly of any unauthorized use of your account or password.

 

5. Intellectual Property

A. Ownership of the Services The Services, including the TINTED Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of TINTED and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “TINTED” and the TINTED logo are registered trademarks of Deep Beauty Inc. under the applicable laws of the United States and/or other countries. Other TINTED product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of TINTED and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. TINTED and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.

Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any TINTED Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of TINTED or such third party that may own such TINTED Content.

B. Feedback By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that TINTED may use your Feedback without restriction or obligation to you or any third party.

C. Notice and Take Down Procedures; Copyright Agent If you believe any TINTED Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting TINTED’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.

TINTED’s agent for copyright issues relating to the Services is as follows:

Copyright Agent Deep Beauty Inc. 458 N Doheny Drive. P.O. Box 69122, West Hollywood, CA 90048. E-Mail address: legal@livetinted.com

 

6. TERMINATION

A. Termination By You You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at info@livetinted.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.

B. Termination By TINTED Any violation of these Terms may result in suspension or termination of your access to the Services and/or removal of Your Content. TINTED may also terminate your account if TINTED determines that your conduct poses a risk or liability to TINTED, or for any other reason as determined by TINTED in its sole discretion.

 

7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

A. Disclaimer of Warranties THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, TINTED DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE TINTED CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY WHERE OTHERWISE PROHIBITED BY LAW.

B. Limitation of Liability UNDER NO CIRCUMSTANCES SHALL TINTED BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF TINTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(C) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO WHERE OTHERWISE PROHIBITED BY LAW.

C. Dispute Resolution, Arbitration and Class Action Waver This Section 7(C) includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.

Informal Process First

Both you and TINTED agree that in the event of any dispute between us, you and TINTED will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.

Mandatory Arbitration of Disputes

All disputes between you and TINTED will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of TINTED or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either TINTED or you pursuant to the following conditions:

(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area or at a JAMS facility in Los Angeles, CA.

(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.

(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.

(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.

(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration, with TINTED remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.

(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.

Class Action Waiver

The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and TINTED shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

 

8. MISCELLANEOUS

JURISDICTIONAL ISSUES. TINTED makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that TINTED intends to announce or make available such products or services to the general public, or in your country. Contact TINTED at info@livetinted.com to determine which products and services may be available to you.

EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the TINTED Content, or any part thereof, in any way, in violation of United States law.

GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of California, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in Los Angeles County, California, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.

ENTIRE AGREEMENT. These Terms are the entire agreement between you and TINTED relating to the subject matter herein and shall not be modified except by TINTED in accordance with these Terms, or as otherwise agreed in writing by you and TINTED. No employee, agent or other representative of TINTED has any authority to bind TINTED with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.

SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. TINTED may assign these Terms at any time without notice to you.

FORCE MAJEURE. TINTED will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond TINTED’s reasonable control.

CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to TINTED at info@livetinted.com or Deep Beauty, Inc., 458 N Doheny Drive, P.O. Box 69122, Los Angeles, CA 90048.