Kevyn Aucoin US – Website Terms of Use
Last Updated: May 2018
1. Terms of Website Use
These are the terms of use (Terms of Use) for your use of services or features on the site at www.kevynaucoin.com (Site) owned and controlled by Kevyn Aucoin Beauty Inc. ("KAB", "we", "us" or "our") whether you are a guest or a registered user. Use of our Site includes accessing, browsing, or registering to use our Site. You may be accessing our Site from a computer or mobile phone or other portable device and these Terms of Use govern your use of our Site and your conduct, regardless of the means of access.
This Site is not designed for and does not collect, use, or disclose personal information from children under the age of 13.
We also like to interact with you on third party sites where we post content or invite your feedback, such as Facebook, Twitter, Instagram and YouTube (Third Party Sites). We do not control these Third Party Sites, and these Terms of Use do not apply to companies that KAB does not own or control, or to the actions of people that KAB does not employ or manage. You should always check the terms of use posted on Third Party Sites.
KAB reserves the right to change or modify any of the terms and conditions contained in these Terms of Use from time to time at any time, without notice, and in its sole discretion. If we decide to change these Terms of Use, we will post a new version on the Site and update the date set forth above. Any changes or modifications to these Terms of Use will be effective upon posting of the revisions. Your continued use of the Site following posting of any changes or modifications constitutes your acceptance of such changes or modifications and if you do not agree with these changes or modifications, you must immediately cease using the Site. For this reason, you should frequently review these Terms of Use and any other applicable policies, including their dates, to understand the terms and conditions that apply to your use of the Site.
By proceeding to use our Site, you confirm that you accept these Terms of Use and our Privacy Policy and that you agree to comply with them. Please read these Terms of Use carefully before you start to use our Site. We recommend that you print a copy of this for future reference.
If you do not agree to these Terms of Use, you must not use our Site.
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.
THE SECTION BELOW ENTITLED "DISPUTES'' CONTAINS PROVISIONS WHICH WAIVE YOUR ABILITY(I) TO HAVE YOUR DISPUTE HEARD BEFORE A JURY AND (II) TO BRING A CLASS ACTION. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
2. Copyright and Ownership of Rights
All design, text, graphics, logos, button icons, images, audio and video clips, the selection and arrangement thereof, and all software on the Site is Copyright ©2018 Kevyn Aucoin ALL RIGHTS RESERVED. The compilation (meaning the collection, arrangement and assembly) of all content on the Site is the exclusive property of KAB or its affiliates and is protected by inter alia, U.S. and international copyright laws. All software used on the Site is the property of KAB or its software suppliers and is protected by U.S. and international copyright laws. Any use of this Site or its contents, including copying or storing it or them in whole or part, other than for your own personal, non-commercial use is prohibited without our prior permission in each instance. You may not modify, delete, distribute or post anything on this Site for any purpose.
3. Intellectual Property
kevynaucoin.com, other trademarks, logos and service marks as well as all page headers, custom graphics and button icons are registered and unregistered service marks, designs, trademarks, and/or trade dress ('intellectual property') of KAB our affiliates, our licensors and/or our suppliers in the United Kingdom, and the United States and may not be used in connection with any product or service that is not offered by KAB in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All intellectual property displayed on our Site are protected by trademark laws in the United Kingdom, the United States and internationally. Except in connection with placing an order for merchandise or as required by applicable law, you may not use, reproduce, duplicate, copy, sell, resell, access, modify or otherwise exploit our intellectual property or that of our suppliers without our or their prior written consent.
4. Accuracy of Content
The packaging of our products may vary from that shown. The weights and dimensions of our products are approximate only. We have made every effort to display as accurately as possible the color of the products that appear on the Site. However, as the actual colors you see will depend on your personal computer equipment, we cannot guarantee that your monitor's display of any colour will accurately reflect the colour of the merchandise on delivery. To the extent permitted by applicable law, KAB disclaims all warranties, express or implied, as to the accuracy of the information contained in any of the materials on this Site. We are not responsible for the content of any Third Party Sites. Links appearing on this Site are for your convenience only and are not an endorsement by us of the content, products, services or suppliers connected therewith. We shall not be liable to any person for any loss or damage which may arise from the use of any of the information contained in any of the materials on this Site or in Third Party Sites.
5. Damage To Your Computer
KAB makes every effort to ensure that this Site is free from viruses or defects. However, we cannot guarantee that your use of this Site or any websites accessible through it (including Third Party Sites) won't cause damage to your computer. It is your responsibility to ensure that the right equipment is available to use the Site and screen out anything that may damage it. KAB will not be liable to any person for any loss or damage which may arise to computer equipment as a result of using this Site.
6. Mobile Services
If you access the Sites via your mobile phone, we do not currently charge for this access. Please be aware that your carrier's normal rates and fees, such as text messaging fees or data charges, will still apply.
7. Limitation of Liability
The Site and its content and services are presented "AS IS". To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to our Site or any content or services, whether express or implied.
Nothing in these terms of use excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law.
We will not be liable to any user for any loss or damage, in contract, warranty or in tort (including negligence) arising under or in connection with:
We only provide our Site for domestic and private use. You agree not to use our Site for any commercial or business purposes. You may not sell or resell any products you purchase or otherwise receive from KAB. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms of Use, as determined by KAB in its sole discretion.
The preceding provisions are subject to the terms of the section entitled ‘Notice to the residents of New Jersey’.
8. Indemnification
You agree to defend, indemnify and hold harmless KAB (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages of every kind and nature, known and unknown, including reasonable legal fees, arising out of (a) your use of and access to the Site in violation of any term of these Terms of Use; (b) your violation of any law or the rights of a third party (including, without limitation, any copyright, property or privacy right); or (c) any claim that any conduct by you caused damage to a third party. This indemnification obligation will survive the termination of these Terms of Use and your use of the Site. This provision is subject to the section entitled ‘Notice to the residents of New Jersey’.
9. Prohibited uses
You may use our Site only for lawful purposes. You may not use our Site:
You also agree:
You agree to defend, indemnify and hold us harmless for any loss, damages or costs, including reasonable solicitors' fees, resulting from any third-party claim, action, or demand resulting from your unlawful use of the Site in violation of these Terms of Use. You also agree to indemnify us for any loss, damages, or costs, including reasonable attorneys' fees, resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure. This provision is subject to the section etitled ‘Notice to the residents of New Jersey’.
10. Submission of Information
We welcome your enquiries or feedback on the merchandise you use or might like to purchase. However, it is our policy to decline any unsolicited suggestions or ideas. Any inquiries, feedback, suggestions, ideas or other information you provide to us ('information') will be treated as non-confidential and non-proprietary. Subject to our Privacy Policy, by providing us with any such unsolicited information you hereby grant KAB a non-exclusive and royalty-free right to use, reproduce, modify, adapt, publish, sell, assign, translate, transfer, sub-license, create derivative works from, distribute and display the information in any form, media or technology and whether alone or as part of other works. You also agree that your information may not be returned and we may use your information and any ideas, concepts or know-how contained therein, for any purpose. Furthermore, if you send us any such information you represent and warrant that you own or otherwise are entitled to any and all rights to the information and that your information does not contain or constitute software viruses, commercial solicitation, chain letters, mass mailings or 'spam' in any form. You may not impersonate any person or entity or use any false email address or otherwise mislead KAB as to the origin of the information submitted and you agree to indemnify KAB and hold KAB harmless from and against any claims arising from your claims and/or any third party's claims to any rights in any such information. This provision is subject to the section entitled ‘Notice to the residents of New Jersey’ below.
11. User Generated Material
By submitting ideas, designs, customizations, creative concepts, or any other information ("User Generated Material") to this Site (or to our accounts on any Third Party Sites), you accept and agree that you assign and /or waive all ownership of and rights (including moral rights) in or to any intellectual property rights and other rights in the User Generated Material to KAB. To the extent such transfer is not valid, you grant KAB, by submitting the User Generated Material to this Site, a worldwide, non-exclusive, fully paid, perpetual, royalty free license to use, including but not limited to a right to copy, modify, publicly display, distribute and to sublicense (all or parts of), the User Generated Material for any purposes as it deems fit, including but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving this Site or other products or services both online and offline.
All User Generated Material shall be deemed to be non-confidential. KAB shall be entitled to use or disclose the User Generated Material in any manner whatsoever, without liability or notice to you. You acknowledge and agree that you shall have no claim against KAB or any other party should any User Generated Material created, posted or sent by you be used in the above sense by KAB or any part of its group.
You warrant that:
You agree that KAB:
Notwithstanding the foregoing, KAB reserves the right to moderate all User Generated Material, and to decline the submission of, edit the content of, or remove from this Site, any User Generated Material in its absolute discretion, for example because it infringes the intellectual property rights of a third party, because the content is inappropriate, obscene, or abusive, or for any other reason. KAB is under no obligation to inform you of the reasons for such intervention.
12. Non-waiver
No failure to exercise and no delay on the part of KAB in exercising any right, remedy, power or privilege of KAB under these terms & conditions and no course of dealing between us shall be construed or operate as a waiver, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege on the part of KAB.
13. Notice of Residents of New Jersey
Your rights are protected under the Truth-in-Consumer Contract, Warranty and Notice Act and New Jersey law generally. The following provisions in these Terms of Use do not apply to you and are not intended to vary, diminish or alter your rights under New Jersey law: specifically, nothing in these Terms of Use limits, varies, diminishes, affects, or otherwise voids or alters your rights under New Jersey law as they relate to limitations of liability or exculpation (including, but not limited to, limitations on indirect, incidental, special, exemplary, consequential or similar damages), dispute resolution, indemnification, venue or jurisdiction, statutes of limitation or repose periods for bringing claims, plain language requirements, representations and warranties of any type or nature (including, but not limited to conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quite enjoyment, and non-infringement), contract remedies, personal injury, tort and negligence claims, conditions of sale, fee-shifting provisions, waiver of attorney fees and/or costs, and copyright. Your rights regarding these specific provisions will be governed by New Jersey law. In the event of any conflict between these Terms of Use and New Jersey law, New Jersey law will govern.
14. Reservation of Rights
We reserve the right, at any time, without notice and in its sole discretion, to terminate your license to use the the Site and to block or prevent your future access to and use of the Site. KAB may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce these Terms of Use, (iii) respond to claims that any actions by you violate the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of KAB (and its employees), its users and the public.
15. Questions
If you have any questions regarding these terms of use please contact us by email at contactus@kevynaucoin.com or write to us at Customer Services, Kevyn Aucoin, 330 Broadway, New York, NY, 10001 United States.
The Site is created and controlled by KAB in the State of New York, U.S.A. As such, the laws of the State of New York will govern these Terms of Use, without giving effect to any principles of conflicts of laws. KAB reserves the right to make changes to the Site and these Terms of Use at any time.
16. Registration
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.
17. Digital Millennium Copyright Act (DMCA)
If you believe your work or content has been copied and posted to the Sites in a way that constitutes copyright infringement, please provide KAB's designated copyright agent the following written information in accordance with the DMCA:
Our DMCA designated copyright agent for notice of claims of copyright infringement on this Web site is the Managing Director of KAB, who can be reached as follows:
Kevyn Aucoin Customer Service
330 Broadway
New York
NY 10001
contactus@kevynaucoin.com
18. Fraud Protection Program
As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If such is the case, we may reject your order or our Customer Service department may call you at the phone number you provided (or use your email address) to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
19. Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, Notices) to which these Terms of Use refer from us electronically including without limitation by e-mail or by posting notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive Notices electronically, you must notify us of your withdrawal of such consent by emailing us at contactus@kevynaucoin.com and discontinue your use of this Site. In such event, all rights granted to you pursuant to these Terms of Use, including but not limited to the limited licenses set forth herein, shall automatically terminate. Unfortunately, we cannot provide the benefits of this Site to any user that cannot consent to receipt of Notices electronically.
20. General
You acknowledge and agree that these Terms of Use constitute the complete and exclusive agreement between us concerning your use of the Site, and supersede and govern all prior proposals, agreements, or other communications.
21. Disputes
Any claim or dispute between you and KAB that arises in whole or in part from the Site shall be decided exclusively before a Judge in a court of competent jurisdiction located in New York. YOU WILL NOT HAVE THE RIGHT TO ELECT THAT A JURY DECIDES YOUR CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. The preceding sentence is subject to the section entitled ‘Notice to the residents of New Jersey’.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OF REPRESENTATIVE PROCEEDING.
YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO AGREE TO THE TERMS OF THIS SECTION.
If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.
