Terms & Conditions
2. Acceptance of Terms
These terms and conditions set forth the legally binding terms for your use of the website. By using the website, you agree to be bound by these terms and conditions. This is the case regardless of whether you are merely visiting the website or whether you have registered with the website.
We may modify these terms and conditions from time to time. We will post modifications of these terms and conditions to our website. You agree to be bound to any changes to these terms and conditions when you use the website after any modifications to these terms and conditions are posted. Therefore, you should review these terms and conditions regularly. In addition, if the modifications reduce your rights or increase your responsibilities, we will provide you email notice (at the last email address of record) before such changes take effect or we will require your assent to the changes as a condition to your placing subsequent orders via the website or otherwise engaging in any substantial activity (such as registering with us or updating your registration information) on the website.
In addition to these terms and conditions for use of the website, each Pro Artist shall be subject to the Pro Artist Agreement between the Pro Artist and the Company and each Retailer shall be subject to the applicable Retail Distribution Agreement between the Retailer and the Company. In the event of any conflict or discrepancy between these terms and conditions and the Pro Artist Agreement or Retail Distribution Agreement applicable to the named Pro Artist or Retailer, the terms and conditions of the Pro Artist Agreement or Retail Distribution Agreement, as the case may be, shall prevail.
In order to request information or apply to be a Pro Artist or Retailer, you must register with the website. By registering with us, you represent that you are of a legal age to form a binding contract and are not prohibited or barred from registering with us. You also agree that you will provide true, accurate and current information about yourself and will update your registration information whenever there is a change. We reserve the right to suspend or terminate your use of the website and/or your status as a Pro Artist or Retailer if we learn (or have reason to believe) that you have provided us with false, incomplete or inaccurate information. Once you register with us, we will communicate with you primarily through the email address that you used when registering. You can communicate with us by contacting us.
You will select a username and password when you register with us. You are responsible for maintaining the confidentiality of your password and your account information. We will hold you responsible and accountable for all activity that occurs under your password or in your account. You must notify us immediately if you believe that your password has been compromised or your account is violated. We do not accept any liability for any loss or damage occurring to you if you fail to comply with the requirements of this paragraph.
Your account may not be assigned or transferred to anyone else, during your lifetime or via survivorship rights following your death. Any assignment or transfer in violation of this prohibition shall be null and void.
4. Your Conduct
When using the website, you shall, at all times, comply with these terms and conditions. Without limiting the foregoing, you expressly agree that you will not (a) violate (intentionally or unintentionally) or attempt to violate any applicable local, state, national or international law; (b) impersonate any other person or entity or misrepresent an affiliation with another person or entity; (c) engage in any activity that may (intentionally or unintentionally) harm minors in any way; or (d) upload, distribute or otherwise make available: (i) any material that contains malware, such as spyware, viruses, trojans or other computer code designed to collect information about users or to disrupt or destroy the website or any software or hardware used in connection with the website; (ii) any unsolicited promotional offers or unauthorized solicitations, such as spam and junk mail; (iii) any content that you do not have the right to distribute or otherwise make available (including any posting in violation of applicable copyright law or any proprietary or confidentiality agreement); or (iv) any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.
The prohibitions listed above are intended to protect the integrity of the website, to protect other users, to protect us, and to comply with applicable law. If you engage in any of these prohibited activities, we may suspend or terminate your access to and use of the website with or without notice. In addition, if we have reason to believe that you are violating any law, we shall have the right to notify applicable governmental authorities and to comply in all respects with the requests of these authorities.
5. Our Relationship with Third Parties
We may direct you to third party websites and to third party service providers for additional information about our products or for sales of our products (if you are a consumer) or for services in support of your operations (if you are a Pro Artist or Retailer).
Your correspondence and dealings with any third parties from whom you obtain information, purchase products or obtain services are solely between you and the third party. We make no representations or warranties regarding the products, services, policies, security or other content of third parties (or their websites) with whom you interact. We encourage you to read the terms and conditions and privacy policies of these third parties before providing information to them or conducting a session with them.
6. Ownership of Intellectual Property
Our Content and Intellectual Property
The design and content of our website, including all descriptive material, artwork, images, photographs, and text are the property of Kevyn Aucoin and/or its licensors. All rights therein (including all copyright moral right or other intellectual property interests) are reserved. Any use of our web site and its content for purposes other than personal use or, in the case of Pro Artists and Retailers, for the purpose of purchasing products from us, is prohibited without our prior written consent.
Kevyn Aucoin® and other Company graphics, logos, designs, page headers, button icons, scripts and service names are registered or unregistered trademarks or trade dress of the Company in the U.S. and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or to imply affiliation with or sponsorship of such product or service and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting via the website any materials that violate another party's intellectual property rights. When we receive proper notification of alleged copyright infringement as described below, we remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please contact us at firstname.lastname@example.org.
If we host or permit a forum, blog or discussion group on our website and you elect to participate, you may provide content to the website from time to time. You are solely responsible for any content that you provide to the website or that you share with others. You may not post or share content that you did not create or that you do not have the right to post or share. When you post content to the website or share content via the website, you represent and warrant that you have the right to provide such content to the website and to grant the license to us set forth in the paragraph below and that such content does not violate the privacy rights, publicity rights, copyrights, contract rights or other rights of any other person. We have the right (but not the obligation) to review the content that has been posted to the website and, in our sole discretion, delete or remove (without notice) any content that, in our judgment, violates these terms and conditions. You are solely responsible for making backup copies or storing any content that you provide to the website or share with others.
When you post content to the Website or share content via the Website, you automatically direct us to copy the content as necessary to archive and distribute the content via the Website. In addition, you grant to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such content for any purpose (including commercial and advertising purposes) and to prepare derivative works of, or incorporate the content into other works. You may remove your content at any time. The license granted to us expires upon your removal of the content; provided, however, that we will continue to have the right to archive copies of the content. For clarity, the expiration of such license shall apply only on a "going-forward" basis, i.e., it shall not affect any copies, publications, performances, displays, reformats, translations, excerpts, distributions or derivative works or compilations that were made or conducted prior to the expiration of the license. As between you and us, you will retain ownership and intellectual property rights in the content that you distribute and share via the Website.
7. Disruption of Service; Accuracy of Content
Access to our website may be delayed or unavailable from time to time for a variety of reasons, including hardware failures, connection failures, software failures (including viruses, bugs, configuration issues, firewall screens, etc), force majeure events (i.e., war, earthquake, natural catastrophes, etc), government or regulatory actions and similar events over which we have no control. We make no representations or warranties with respect to the availability of the website.
8. Disclaimer of Warranty
The website is provided as is. We disclaim any and all representations and warranties, whether express or implied, including implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. We cannot guarantee and do not promise any specific results from use of the website or the products displayed on the website. Access to this website and athe downloading of any content or materials from the website isat your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from accessing the website or downloading any content or materials from the website.
9. Limitation of Liability
In no event will the company or its directors, employees or agents be liable to you or any third person for any lost profits or lost data or for any indirect, consequential, exemplary, incidental, special or punitive damages arising from your inability to use the website or from your use of the website or any content or other materials made available via the website, even if the company is aware or has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever, and regardless of the form of the action, shall not exceed one hundred dollars ($100.00). The limitation of liability set forth herein shall apply even if such remedy is deemed to have failed of its essential purpose.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations set forth in the disclaimer of warranty and limitation of liability may not apply to you.
You agree to indemnify and hold the Company, its subsidiaries and its affiliates, and each of their directors, officers, agents, contractors, licensors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any content or other materials that you submit, post, share or otherwise make available on or through the website, your use of the website, your conduct in connection with the website, or any violation of these terms and conditions or of any law or the rights of any third party.
11. Other Legal Terms and Conditions
These terms and conditions (together with the Pro Artist Agreement or Retail Distribution Agreement, if applicable) constitute the entire agreement between you and Kevyn Aucoin and govern your use of the website and supersede any prior agreements with respect thereto.
These terms and conditions and the relationship between you and Kevyn Aucoin shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You agree that all claims or disputes arising under these terms and conditions or in connection with the website shall be resolved exclusively through the small-claims court within the borough of Manhattan in New York City, New York, provided, that, if the amount in controversy exceeds the statutory limit for such court, in the applicable state or federal court located within borough of Manhattan in New York City, New York.
You also agree, acknowledge and understand that, with respect to any dispute with the Company, its officers, directors, employees, agents or affiliates, arising out of or relating to your use of the website or these terms and conditions: (i) You are giving up your right to have a trial by jury; and (ii) You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute.
The Company's failure to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision; and any single waiver of a right or provision of these terms and conditions does not constitute an agreement to continue to wave such right or provision. If any provision of these terms and conditions is found by a court of competent jurisdiction to be invalid, you and we agree, nevertheless, that the court should endeavor to give effect to the intention as reflected in the provision, and that the other provisions of these terms and conditions shall remain in full force and effect.
The section titles in these terms and conditions are for convenience only and have no legal or contractual effect.