Terms of service
1. Introduction and Overview
This Terms of Service (“Terms”) create a binding agreement between you and Hue Beauty, Inc. (“Hue”) or “we,” “our” or “us”) and applies when you use the Hue website currently found at www.poweredbyhue.com and any related subdomains, mobile applications, or plugins (the “Site”). You should know that these Terms apply regardless of how you access the Site, whether via computer, mobile device or otherwise.
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Site or to a service or product offered via the Site (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS THE SITE.
Use of the Site is limited to persons who are sixteen (18) years of age or older.
The Site is not directed to persons under the age of 18 and the policy of the Company is NOT to knowingly collect any personal information from persons under the age of 18. If you are under the age of 18, you should leave the Site without providing any information about yourself. By accessing or using the Site, you represent and warrant to us that you are either a legal adult in the jurisdiction in which you reside or, if under the age of majority, have obtained proper consent from a parent or legal guardian to your use of the Site and these Terms.
You may be required to create an account and specify a password in order to use certain services or features on the Sites. To create an account, you must be at least 18 years old and you must provide truthful and accurate information about yourself. You may not impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.
In some cases, an account may be assigned to you by an administrator, such as your employer or other organization for which you provide services. If you are using or logging into an account assigned to you by an administrator, Additional Terms apply to your use of the Site. Moreover, your administrator may be able to access or disable your account without our involvement.
You may not share your account with anyone else. You agree to keep your password confidential, and you understand that your password should not be the same as passwords you use on other websites. If you believe that your account has been compromised at any time, please notify us at email@example.com
1. OUR CONTENT, OWNERSHIP, LIMITED LICENSE, AND RESERVATION OF RIGHTS
A. Our Content
The Site contains a variety of: (i) materials and other items relating to Hue and its products and services, and similar items from our licensors and other third-parties, including any and all copyrightable material (including source and object code) as well as auto parts product, inventory, pricing and fitment information provided by third-parties (including, but not limited to manufacturers, suppliers, distributors and other sources of information); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Hue (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Hue Content”).
The Site (including past, present, and future versions) and the Hue Content are owned or controlled by Hue, our licensors and/or certain other third-parties. All right, title, and interest in and to the Hue Content available via the Site is the property of Hue, our licensors and/or certain other third-parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible.
C. Limited License.
Subject to your compliance with these Terms and any applicable Additional Terms, Hue grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Hue Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use certain Hue Content that we may from time to time make available on the Site explicitly for you for use as part of your User Content (“Hue Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Hue Licensed Elements are made available on the Site; but we and our licensors and certain other third-parties, as the case may be, retain ownership of such Hue Licensed Elements. The foregoing limited license (x) does not give you any ownership of, or any other intellectual property interest in, any Hue Content, and (y) may be immediately suspended or terminated for any reason, in Hue’s sole discretion, and without advance notice or liability. Any use of the Hue Content other than as set forth herein shall require a separate agreement between Hue and you.
2. YOUR CONTENT; OWNERSHIP; LIMITED LICENSE
A. Your Content
The Site may allow you to submit, post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“User Content”). You are responsible for the User Content that you post on or through the Service, including its accuracy, completeness, legality, reliability, and appropriateness.
By posting User Content on or through the Site, You represent and warrant that: (i) the User Content is yours (you own it and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms), (ii) the posting of your User Content on or through the Site does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity, (iii) you have fully complied with any third party license terms relating to User Content that you upload or post using the Site and have satisfied all terms and conditions to pass through to end users the right to use User Content; and (iv) User Content does not contain or will not install any viruses, worms, malware, Trojan horses, or other harmful or destructive programming. We reserve the right to terminate the account of anyone found to be infringing on a copyright.
Except where otherwise stated, Hue has the right but not the obligation to monitor all User Content provided by users.
You retain any and all of your rights to any User Content you submit, post or display on or through the Site and you are responsible for protecting those rights. We take no responsibility and assume no liability for User Content you or any third-party posts on or through the Site. However, by posting User Content using the Site you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content on and through the Site for the sole purpose of providing the Site to you and any users of the User Content and Site who you authorize.
In addition, other User Content not owned by you found on or through this Site are the property of Hue or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said User Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
C. Limited License.
Except as otherwise described in any applicable Additional Terms, you hereby grant to Hue, and you agree to grant to Hue, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content. You acknowledge and agree that Hue has the right to share User Content with third party developers and licensees using the application programming interface (API) provided and licensed in connection with the Site, however, that this will only occur if you authorize access to any of User Content by any other licensees or other users of the Site. Please see your account for details of access authorization.
3. SITE AND CONTENT USE RESTRICTIONS
A. Site Use Restrictions
You agree that you will not: (i) aside from your purchase of goods or services offered for sale by Hue or its affiliates, use the Site for any commercial purpose; (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, or otherwise objectionable to Hue or its users; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Hue source or object code or any software or other products, services, or processes accessible through any portion of the Site; (v) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Hue, or other users of the Site; (vi) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Hue Content, or the User Content; or (vii) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions
You also agree that, in using the Site: (i) you will not monitor, gather, copy, or distribute the Hue Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Hue Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Hue Content; (iv) you will not use such Hue Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Hue Content (other than to the extent of your permitted use of the Hue Licensed Elements, if applicable); (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third-party or on any third-party application or website, or otherwise use or exploit such Hue Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Hue or, in the case of Hue Content from a licensor, the owner of the Hue Content; and (vii) you will not insert any code or product to manipulate such Hue Content in any way that adversely affects any user experience.
C. Availability of the Site and Content
Hue reserves the right, in its sole discretion, at any time, to modify, suspend, terminate or discontinue, temporarily or permanently, the availability of the Site and Hue Content (or any elements and features of them) for any reason, with or without advance notice. You agree that Hue shall not be liable to you or to any third-party for any modification, suspension or discontinuance of the Site.
4. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT
A. DMCA Notice
Hue asks our users to respect the intellectual property of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Hue’s sole discretion, Hue may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Hue has adopted a policy of terminating, in appropriate circumstances and at Hue’s sole discretion, users who are deemed to be repeat infringers. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following:
- a legend or subject line that says: “DMCA Copyright Infringement Notice”;
- a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears);
- your full name, address, telephone number, and e-mail address;
- a statement by you 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;
- a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
- your electronic or physical signature.
Huewill only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
c/o HueBeauty, Inc.
1 Washington Mall, #1272
Boston, MA 02108
For clarity, only DMCA Notices should go to the above e-mail address.
It is often difficult to determine if your copyright has been infringed. Hue may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Hue may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification (as described below).
Without limiting Hue’s other rights, Hue may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website owned or operated by Hue.
If access on the Site to a work that you submitted to Hue is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
- a legend or subject line that says: “DMCA Counter-Notification”;
- a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Site from which the material was removed or access to it disabled);
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- your full name, address, telephone number, e-mail address, and the username of your Account (if you have an Account);
- a statement that you consent to the jurisdiction of the United States District Court for the District of Massachusetts, and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
- your electronic or physical signature.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
5. PROCEDURE FOR ALLEGING INFRINGEMENT OF OTHER INTELLECTUAL PROPERTY
If you own intellectual property other than copyrights and believe that your intellectual property other than copyright has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice to the addresses set forth above that includes: (a) a legend or subject line that says: “Intellectual Property Infringement Notice”; and (b) all the other information required for the DMCA notice above, except describing the other intellectual property alleged to have been infringed.
We will act on such notices in our sole discretion. Any user of the Site that fails to respond satisfactorily to Hue with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
6. THIRD-PARTY CONTENT AND SITES
Some of the content, services and functionality on the Site, such as advertisements, widgets, software, applications, articles, photographs and videos, may be provided by third-parties (collectively, “Third Party Content”). Although we try to keep inappropriate third-party ads and other content off of the Site, we are not responsible for this third-party content or the third parties if you interact with them.
Users of the Site may be able to view, access and interact with Third Party Content without leaving the Site, including viewing, accessing or interacting with Third Party Content that is imported or “framed” within the Site. The Site may also contain links to third-party websites that are not owned, controlled or operated by Hue, and the Site may include links to third-party ads on the Site or otherwise, to or from third-party websites (collectively, “Third-Party Sites”), including websites operated by advertisers, licensors, licensees, and certain other third-parties who may have business relationships with Hue.
Hue may have no control over the content, operations, policies, terms, or other elements of Third Party Content or Third Party Sites, and Hue does not assume any obligation to review any of them. Hue does not endorse, approve, or sponsor any Third Party Sites, or any Third Party Content, advertising, information, materials, products, services, or other items. Furthermore, Hue is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Hue will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third Party Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third Party Sites, and you agree to be bound thereto. Hue disclaims all liability in connection therewith.
7. DISPUTE RESOLUTION
Certain portions of this Section 6 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Hue agree that we intend that this Section 6 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 6 can only be amended by mutual agreement. Where arbitration is not permitted by the mandatory laws in your country of residence, or where the parties have not otherwise agreed to arbitration in accordance with applicable laws, the provisions of Section 7 shall apply to all relevant disputes between you and us.
A. First Try To Resolve Disputes and Excluded Disputes
To the fullest extent permitted by applicable law, if any controversy, allegation, or claim arises out of or relates to the Site, the Content, your User-Generated Content, these Terms, or any applicable Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Hue’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 6(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 6(A). Your notice to us must be sent to: Hue Beauty, Inc., One Broadway, 14th Floor, Cambridge, MA 02142 Attention: Customer Service. For a period of sixty (60) days from the date of receipt of notice from the other party, Hue and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Hue to resolve the Dispute or Excluded Dispute on terms with respect to which you and Hue, in each of our sole discretion, are not comfortable.
B. Binding Arbitration
If we cannot resolve a Dispute as set forth in Section 6(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND HUE (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 EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SITE. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Hue and you regarding these Terms (and any Additional Terms) and the Site. Hue and you agree, however, that Massachusetts or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Hue regarding these Terms and the Site, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Massachusetts’s choice of law principles.
A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” 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 Hue consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Hue to pay a greater portion or all of such fees and costs in order for this Section 6 to be enforceable, then Hue will have the right to elect to pay the fees and costs and proceed to arbitration.
C. Limited Time to File Claims
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 6(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief
To the fullest extent permitted by applicable law, the foregoing provisions of this Section 6 will not apply to any legal action taken by Hue to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User Content and/or Hue’s intellectual property rights (including such Hue may claim that may be in dispute), Hue’s operations, and/or Hue’s products or services.
E. Small Claims Matters Are Excluded From Arbitration Requirement
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 6(G).
F. No Class Action Matters
To the fullest extent permitted by applicable law, disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 6(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 6(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 6(G).
G. Federal and State Courts in Boston, MA
Except to the extent that arbitration is required in Section 6(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Boston, MA. Accordingly, you and Hue consent to the exclusive personal jurisdiction and venue of such courts for such matters.
8. OTHER DISPUTE RESOLUTION WHERE ARBITRATION IS NOT AVAILABLE
This Section 7 applies to all users of the Site, if, and only to the extent that, the mandatory laws in your country of residence do not permit arbitration of Disputes in accordance with Section 6 or the parties have not otherwise agreed to arbitration if required by applicable law.
A. Section 7 Disputes
To the fullest extent permitted by applicable law, if any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Site, the Content, these Terms, whether heretofore or hereafter arising or to any of Hue’s actual or alleged intellectual property rights (collectively, a “Section 7 Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 7 Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 7.A. Your notice to us must be sent to: Hue Beauty, Inc., One Broadway, 14th Floor, Cambridge, MA 02142 Attention: Customer Service. Subject to applicable law, for a period of sixty (60) days from the date of receipt of notice from the other party, Hue and you will engage in a dialogue in order to attempt to resolve the Section 7 Dispute, though nothing will require either you or Hue to resolve the Section 7 Dispute on terms with respect to which you and Hue, in each of our sole discretion, are not comfortable.
The parties agree that the state or federal courts in Suffolk County, MA shall have non-exclusive jurisdiction of any Section 7 Dispute, unless otherwise required by applicable laws of your jurisdiction of residence.
C. Governing Law
To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Section 7 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions.
D. Limited Time to File Claims
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A SECTION 7 DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 7.A) WITHIN ONE (1) YEAR AFTER DISCOVERY OF THE SECTION 7 DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
E. Injunctive Relief
The foregoing provisions of this Section 7 will not apply to any legal action taken by Hue to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User Content and/or Hue’s intellectual property rights (including such Hue may claim that may be in dispute), Hue’s operations, and/or Hue’s products or services.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK.
THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Hue Beauty, Inc. and its subsidiaries, affiliated companies and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, data suppliers, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Hue Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- the Site (including the Hue Content and the User Content);
- the functions, features, or any other elements on, or made accessible through, the Site;
- any products, services, or instructions offered or referenced at or linked through the Site;
- security associated with the transmission of your User Content transmitted to Hue or via the Site;
- whether the Site or the servers that make the Site available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- whether the information (including any instructions) on the Site is accurate, complete, correct, adequate, useful, timely, or reliable;
- whether any defects to the Site will be repaired; and
- whether your use of the Site is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A HUE PARTY, HUE PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD-PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. HUE PARTIES FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO COMPLETENESS, VALIDITY, CONSISTENCY, TIMELINESS, AVAILAIBILITY AND ACCURACY OF HUE CONTENT.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
10. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY HUE PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- the Site (including the Hue Content and the User Content);
- your use of or inability to use the Site, or the performance of the Site;
- any action taken in connection with an investigation by Hue Parties or law enforcement authorities regarding your access to or use of the Site;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Site’s technical operation; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Hue Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HUE PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID HUE IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S) DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE TIME SUCH LOSSES OR DAMAGES WERE INCURRED; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY HUE OR A MANUFACTURER OF A PHYSICAL PRODUCT.
11. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS 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, HUE CONTENT, USER CONTENT AND DATA, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY HUE (INCLUDING YOUR LICENSED USER CONTENT AND DATA) OR A LICENSOR OF HUE.
12. UPDATES TO TERMS
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SITE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF ADDITIONAL TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE ADDITIONAL TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Site (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Site will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the e-mail you associated with your Account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or additional Terms by discontinuing use of the Site and related services.
13. GENERAL PROVISIONS
A. Hue’s Consent or Approval
As to any provision in these Terms or any applicable Additional Terms that grants Hue a right of consent or approval, or permits Hue to exercise a right in its “sole discretion,” Hue may exercise that right in its sole and absolute discretion. No Hue consent or approval may be deemed to have been granted by Hue without being in writing and signed by an officer of Hue.
B. Applicable Law
These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions.
You agree to, and you hereby, defend, indemnify, and hold all Hue Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Hue Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) 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 your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Hue Parties’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Hue Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Hue Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Hue Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Hue Party.
D. Operation of the Site; Availability of Products and Services; International Issues
Hue controls and operates the Site from its U.S.-based offices in the U.S.A., and Hue makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the UN Convention on Contracts for the International Sale of Goods.
E. Export Controls
Software related to or made available by the Site may be subject to export controls of the U.S.A. No software from the Site may be downloaded, exported, or re-exported to any county, or to any person, entity, or end-user subject to U.S. export controls.
F. Severability; Interpretation
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
H. Investigations; Cooperation with Law Enforcement; Termination; Survival
Hue reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms, (iii) investigate any information obtained by Hue in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any applicable Additional Terms, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any applicable Additional Terms, suspend or terminate your access to it, in whole or in part, including any user Accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third-party. Any suspension or termination will not affect your obligations to Hue under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Hue, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Hue in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
J. No Waiver
Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Hue in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
You are responsible for obtaining and maintaining all Devices and other equipment and software, and all Internet service provider, mobile service, and other services needed for your access to and use of the Site and you will be responsible for all charges related to them.
L. Notices and Questions
You agree that: (A) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Site, or in another reasonable manner; and (B)we may contact you by mail or e-mail sent to the address provided by you. Hue may give notice by means of an electronic mail to Subscriber’s e-mail address on record in Hue’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Hue’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Hue (such notice shall be deemed given when received by Hue) at any time by letter to Hue delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Hue, in either case, addressed to:
Hue Beauty, Inc. [Physical Address]
14. QUESTIONS OF ADDITIONAL INFORMATION
If you have a question regarding using the Site, you may contact Hue Customer Support by sending an e-mail to firstname.lastname@example.org. You acknowledge that the provision of customer support is at Hue’s sole discretion and that we have no obligation to provide you with customer support of any kind.