Thank you for visiting one of our websites. While we hope you enjoy the site, it is important that you carefully read these Terms of Use (“Terms”) before using the site, as they affect your legal rights and obligations and govern your use of the Sites.
Effective Date: January 2nd, 2022
INTRODUCTION
Welcome! You have arrived at a website or mobile Internet site operated by Color Me Hue (“Color Me”, “we,” “our,” or “us”). Each website or mobile Internet site shall be referenced as a “Site” or collectively, the “Sites”, however it is accessed and/or used, whether via personal computers, mobile devices, or otherwise.
Thank you for visiting one of our Sites. While we hope you enjoy the Sites, it is important that you carefully read these Terms of Use (“Terms”) before using the Sites, as they affect your legal rights and obligations and govern your use of the Sites. These Terms apply to (i) the Sites; and (ii) interactive features or downloads that are owned or controlled by Studio Lily, are available through the Sites, or that interact with the Sites and post these Terms. These Terms do not apply to any offline activities by Color Me (unless specifically stated). You agree to these Terms by accessing or using the Sites. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE SITES.
PLEASE NOTE THAT THESE TERMS REQUIRE THAT DISPUTES BE RESOLVED ONLY BY ARBITRATION (AND NOT BY COURT LITIGATION) IN THE COUNTY OF TRAVIS, IN AUSTIN, TEXAS, WAIVE ANY RIGHT BY YOU TO JURY TRIAL, AND WAIVE ANY OF YOUR RIGHTS TO BRING CLASS ACTIONS AGAINST US. Please review the Governing Law, Arbitration, and No Class Actions section of these Terms for complete details.
In some instances, both these Terms and a separate term of service setting forth additional terms and conditions may apply to a service or product offered via the Sites (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Privacy: Our collection, use, and disclosure of information, including information you submit to us or that we collect about you, is governed by our Privacy Policy, which is incorporated into and is a part of these Terms. You consent to the collection and use of your data in accordance with the Site’s Privacy Policy.
1. OWNERSHIP OF SITE MATERIALS:
(a) Materials. The Sites (including past, present, and future versions) and all materials that are included in or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; content; instructions; images; audio; videos; digital media offered by streaming (but specifically excluding Digital Media Purchases) designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Sites; the compilation, assembly and arrangement of the materials of the Sites; and all other materials related to the Sites (collectively, the “Materials”) are owned, controlled or licensed by Color Me, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity, and other laws, rules, regulations, and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by Color Me, no rights (either by implication, estoppel, or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under these Terms are hereby reserved for Color Me and/or its members, subsidiaries, affiliates, or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way Color Me’ rights to exploit fully any or all of the Materials. You agree that you will not, directly or indirectly, contest, challenge, aid, or abet in contesting or challenging the validity or ownership of the Materials or take any action whatsoever in derogation of Color Me’ rights therein, or in breach of, any terms and conditions contained in these Terms. You acknowledge and agree that you will not acquire or claim any rights in the Materials, or aid or abet anyone else in doing so.
(b) Copyright/Trademarks. The entire contents of the Sites (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Color Me owns a copyright in the selection, coordination, arrangement, and enhancement of the Materials on the Sites. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks on the Sites are the service and trademarks of Color Me or affiliated companies. Without Color Me’ prior written permission, you agree not to display or use, in any manner any such marks and all goodwill associated with any use by you thereof will inure exclusively to Color Me. The Materials may not be copied, reproduced, downloaded, or distributed in any way, in whole or in part, without the express prior written permission of Color Me, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information, or restrictions contained in any part of the Sites.
2. YOUR LICENSE TO USE MATERIALS ON OUR SITES:
(a) License. The Sites are for your personal use only. Subject to our strict compliance with these Terms, Color Me grants access and you may use it via standard web browsers to enable display on your device) on any device you use to access the Sites for your personal, non-commercial use only; provided that: (a) you keep intact all trademark, copyright, and other proprietary notices contained in the original Materials or any authorized copy you may make of the Materials; (b) you do not use the Materials in a manner that suggests an association with any of our products, services or brands; (c) you make no modifications to the Materials; (d) you do not allow or aid or abet any third party (whether or not for your benefit) to (i) copy or adapt the source or object code of either Sites’ software, HTML, JavaScript or other programming code; or (ii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Sites create to generate their web pages or any software or other products or processes accessible through the Sites; and (e) you do not insert any code or product to manipulate the Materials in any way that affects any user’s experience of the Sites.
(b) Prohibited Activities. You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (b) fail to follow the instructions provided on the Sites in a “robots.txt” file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (c) modify, frame, 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 web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these Terms or Color Me without the prior written consent of Color Me. You acknowledge that any unauthorized use of any Materials could cause irreparable harm to Color Me and agree that in the event of any such unauthorized use, we shall be entitled to an injunction in addition to any other remedies available at law or in equity.
3. INFORMATION YOU SUBMIT:
(a) User Content. The Sites in the future may provide you and others with the opportunity to participate in forums, blogs, message boards, and other communication functionality and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Color Me or the Sites, including, without limitation, photographs, writings, polls, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or other information.
(b) Terms Applicable to User Content. Except as otherwise described in our posted Privacy Policy, or other agreement on the Sites at which you provide your User Content, you agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned. You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant Color Me these licenses. Upon Color Me’s request, you will furnish Color Me with any documentation, substantiation, or releases necessary to verify your compliance with these Terms. You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of any content or other information may not be secure, and you should consider this before submitting any information to Studio Lily.
(c) Product Submissions Prohibited. Color Me does not accept unsolicited submissions for websites, products, or services. It is our intent to avoid the possibility of future misunderstandings when projects developed by or on behalf of Color Me (whether internally or by third parties) might seem to others to be similar to their own creative ideas or materials. Therefore, please do not make any such unsolicited submissions to Color Me through the Sites, including through User Forums. However, if you decide to make any such unsolicited submission, you hereby grant to Color Me the right and license as if it were User Content as specifically set forth above.
4. ACCOUNT REGISTRATION:
Certain areas of the Sites may require registration or may otherwise ask you to provide information to participate in certain features, in order to receive newsletters or updates, or to access certain Materials or post User Content. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Materials or User Content or participate in certain features of the Sites. When you provide information to the Sites, you agree to provide only true, accurate, current, and complete information, and you agree to maintain and promptly update your information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Sites (or any portion thereof).
If you register on the Sites and/or create a personal profile, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer or assign your membership or any membership rights. You are responsible for maintaining the security and confidentiality of your password if any, and your account, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password-protected portion of the Sites using your name in whole or in part. Color Me reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware.
5. USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and the best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
6. ORDERING PRODUCTS AND SERVICES
We may make certain products and services available for purchase on the Sites. If you order any products or services, you hereby represent and warrant that you are 18 years old or older. You need a valid credit card (except to the extent we permit purchases with gift cards, promotional or discount codes, or similar forms of payment), with full authority to use it, to submit an order for products or services through the Sites. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all the necessary legal authorization to do so. You may be asked to supply certain information relevant to your transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf to purchase products or services from the Sites. You understand that we will not be liable in the event that others acting with or without your permission use your credit card to make purchases on the Sites. Certain products that you purchase and/or download on or through the Sites may be subject to additional terms and conditions presented to you at the time of such purchase or download.
7. ITEMS AVAILABLE FOR DOWNLOAD
(a) If you purchase downloadable items from the Sites which constitute or are comprised of digital media content including but not limited to, permanent downloads of publications, audio, music, or video files, you are granted a limited, non-commercial, revocable, non-assignable, and non-transferable license to access, perform and otherwise use the digital media Purchases solely for your personal, non-commercial entertainment and use. All digital media Purchases are sublicensed to you and not sold, notwithstanding the use of the terms “sell,” “purchase,” “order,” or “buy” on the Sites or in these Terms. All right and title, including, but not limited to, commercial or promotional use rights, in digital media Purchases available for preview or purchase on the Sites, is reserved by who have licensed the digital media Purchases for sale by the Sites. You may not reproduce (except as otherwise noted herein), publish, transmit, distribute, display, broadcast, re-broadcast, publish, perform, rent or lend, modify, create derivative works from, reverse engineer, sell or participate in any sale of or exploit in any way, or in part, directly or indirectly, any of the digital media Purchases, or any related software used in connection with the delivery of the digital media Purchases. Unauthorized reproduction or distribution of digital media Purchases violates applicable law. You agree to obey all applicable laws and regulations that apply to the use of any intellectual property to which you may be granted a license through use of the Sites. The Sites will not provide free-of-charge copies of digital media Purchase files to restore files that you may lose due to the failure of personal storage devices, including, but not limited to, hard drives, personal computers, mobile devices, and portable media players. You are advised to make backup copies of digital media Purchases for use in case of such losses. digital media Purchases from the Sites may be available only in the United States or certain other countries or territories, and may not be available in other geographic locations. You agree not to purchase, or attempt to make digital media Purchases from the Sites from outside of the geographic territory(ies) for which they are provided. The Sites may use technologies to verify your compliance. You agree to abide by United States and other applicable export control laws not to transfer, by electronic transmission or otherwise, any content or software, including, without limitation the digital media Software subject to restrictions under such national destination or person prohibited under such laws. WITHOUT LIMITING ANY PROVISION HEREIN, WE MAKE NO WARRANTY THAT ANY PARTICULAR COMPUTER, BURNER, MOBILE OR PORTABLE DEVICE WILL BE COMPATIBLE WITH THE SITES OR THE DIGITAL MEDIA PURCHASES, OR THAT ANY DIGITAL MEDIA FILES ACQUIRED FROM THE SITES WILL FUNCTION IN ALL MEDIA PLAYERS OR ON ALL DEVICES. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR RECORDING AND PLAYBACK SYSTEM(S) AND DEVICES WILL FUNCTION CORRECTLY WITH THE DIGITAL MEDIA PURCHASES.
(b) Any items that we make available for download or use from the Sites and/or our servers, including without limitation the digital media Purchases are the copyrighted work of Studio Lily or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items (in addition to the provisions of section 7(a) above. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Sites, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
8. PROMOTIONS
The Sites may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules that describe the sweepstakes, contest or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes, contest or promotion.
9. THIRD-PARTY LINKS AND CONTENT
(a) There may be links from the Sites or communications you receive from the Sites to third-party websites or our Sites may include third-party content that we do not control, maintain or endorse. Accessing those third-party sites requires you to leave the Sites. We do not control those third-party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third-party sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE SITES, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD-PARTY. STUDIO LILY ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS, AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD-PARTY SITE THAT YOU VISIT. STUDIO LILY DISCLAIMS ANY HARM THAT MAY RESULT FROM YOUR CHOICE TO USE ANY THIRD-PARTY SERVICES, INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY SERVICES HOSTED ON THE SITE WHICH MAY ASK TO ACCESS, AND MAY RETAIN, YOUR PERSONAL INFORMATION. YOU AGREE THAT YOUR USE OF THIRD-PARTY SERVICES IS AT YOUR OWN RISK.
(b) Third-Party Advertisements, Services, and Offers. Your interactions with organizations and/or individuals that advertise on the Sites or that are found on or through the Sites, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Color Me is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or for the content of any offer, coupon, advertisement, solicitation, or other material provided by any third party on the Sites. If there is a dispute between participants on the Sites, or between any Site user and any third party, you understand and agree that Color Me is under no obligation to become involved. Please use common sense when interacting with other users of the Sites or third parties who provide advertisements or other material posted on the Sites. Be careful to verify the legitimacy of any offer or the proposed transaction. Be wary of requests to wire funds, to provide your bank account number, or to provide a cashier’s check or money order.
10. Mobile
(a) Mobile Features. The Sites may offer features and services that are available to you via your mobile phone. These features and services may include, without limitation, receiving messages from the Sites, downloading applications to your mobile phone, or accessing the Sites’ features. Standard messaging, data, and other fees may be charged by your mobile provider. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
(b) Terms of Mobile Features. You agree that the Mobile Features for which you are registered may send communications to your mobile device. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify Color Me of any changes to your mobile number and update your account on the Sites to reflect this change.
11. COPYRIGHT COMPLAINTS
(a) DMCA. Color Me respects the intellectual property of others, and we ask our users and visitors to do the same. You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (text at http://www.copyright.gov), if Color Me receives notices of copyright infringement, we’ll follow the notice and takedown procedures of the DMCA.
(b) Procedure. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Color Me the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512. Please be advised that to be effective, the Notice must include ALL of the following:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material;
(d) information reasonably sufficient to permit us to contact the complaining party;
(e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claimed copyright infringement should be directed to:
By mail:
Color Me Hue
16238 Ranch Road 620N Suite F-323 – Austin TX 78717
Legal Department
Attn: Copyright – Notice of Infringement
Color Me Hue
16238 Ranch Road FM 620N suite F-323
Austin, Texas 78717 – USA
By Email: www.colormehue.com
(For email notices, please include “Notice of Infringement” in the subject line.)
Upon receipt of notices complying with the DMCA, Color Me will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.
It is often difficult to determine if your intellectual property rights have been violated. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
(c) IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING STUDIO LILY DESIGN GROUP, LLC THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT OR SERVICE-RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ON PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
12. YOUR WARRANTIES
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms in your jurisdiction where you reside and to comply with these Terms; (ii) all information you provide to Color Me is true, accurate, complete, and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. You also agree that you will be responsible for obtaining and maintaining all modem, telecommunications equipment, computer hardware, wireless devices, and other equipment needed for access to and use of the Sites and you will be responsible for all charges related thereto.
13. DISCLAIMER OF WARRANTIES
(a) THE SITES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COLOR ME AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “COLOR ME PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITES; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM COLOR ME OR VIA THE SITES. IN ADDITION, THE COLOR ME PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. (b) THE COLOR ME PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE COLOR ME PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE, OR OTHERWISE. THE COLOR ME PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COLOR ME PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
(c) BY ACCESSING OR USING THE SITES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
14. DISCLAIMERS/LIMITATION OF LIABILITY
(a) LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE COLOR ME PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (i) THE SITES; (ii) THE MATERIALS; (iii) THE DOWNLOADABLE ITEMS; (iv) USER CONTENT; (v) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (vi) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COLOR ME PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (vii) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (viii) ANY ERRORS OR OMISSIONS IN THE SITES’ TECHNICAL OPERATION; OR (ix) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, 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, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE STUDIO LILY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITES). IN NO EVENT WILL THE COLOR ME PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE, OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. IN NO EVENT WILL THE STUDIO LILY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED: (1) THE AMOUNT PAID BY YOU TO US FOR YOUR USE OF THE SITES OR PURCHASE OF PRODUCTS VIA THE SITES; OR (2) ONE HUNDRED UNITED STATES DOLLARS ($100.00 USD), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITES OR ANY LINKS ON THE SITES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITES OR ANY LINKS ON THE SITES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE MATERIALS. (b) WAIVER OF UNKNOWN CLAIMS. BY ACCESSING THE SITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF THE CIVIL CODE OF TEXAS, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
15. INDEMNIFICATION
You agree to defend (if requested by Color Me), indemnify and hold harmless the Color Me Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your use of the Sites or activities in connection with the Sites, and/or the use of the Sites by any other person using your user account(s); (b) your breach or anticipatory breach of these Terms; (c) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (d) information or material transmitted through your computer or other device used to access the Sites, 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 defames any person; (e) any misrepresentation made by you; or (g) the Color Me Parties’ use of your information. You will cooperate as fully required by the Color Me Parties in the defense of any claim. Notwithstanding the foregoing, the Color Me Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions, or causes of action which are brought against them herein under the terms and provisions of this Section. The Color Me Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not, in any event, settle any claim without the prior written consent of a duly authorized employee of the Color Me Parties.
16. TERMINATION AND MODIFICATIONS
(a) Termination. Color Me reserves the right to terminate your access to and use of the Sites at any time, in its sole discretion, without notice and liability, including, without limitation, if Color Me, believes your conduct fails to conform with these Terms. We may also block your access to our Sites in the event that you (a) breach these Terms, (b) we are unable to verify or authenticate any information you provide to us, or (c) we believe that your actions may cause financial loss or legal liability for you, our users, or us. Color Me, also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Sites or Color Me. Any violation, or potential violation, of these Terms, may be referred to law enforcement authorities. (b) Modifications. Color Me reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials available on the Sites, without limitation, in whole or in part, including the cessation of all activities associated with the Sites, with or without notice. You agree that Color Me will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Sites or any part thereof.
(c) What happens upon Termination? Upon termination of your access to the Sites, or upon demand from Color Me, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Sites, including links to the Sites; and (b) destroy all Materials obtained from the Sites and all related documentation.
17. GOVERNING LAW, ARBITRATION, AND NO CLASS ACTIONS
(a) GOVERNING LAW. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY, WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
(b) ARBITRATION. YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISAGREEMENTS, DISPUTES, OR CONTROVERSIES BETWEEN YOU AND ANY STUDIO LILY PARTIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES, AND/OR RELATED COMPANIES ARISING OUT OF OR RELATING TO THE SITES, THE USE OR ACCESS THEREOF, OR THESE TERMS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, WHICH MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES. BECAUSE THE SITES PROVIDED TO YOU BY STUDIO LILY CONCERN INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE ARBITRABILITY OF ALL DISPUTES. HOWEVER, APPLICABLE FEDERAL OR STATE LAW MAY ALSO APPLY TO THE SUBSTANCE OF ANY DISPUTES. THE ARBITRATION SHALL TAKE PLACE IN AUSTIN, TEXAS. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH TITLE 9 OF THE US CODE (UNITED STATES ARBITRATION ACT) UNDER THE AAA’S COMMERCIAL DISPUTE RESOLUTION PROCEDURES AS SUPPLEMENTED BY THE SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES (AND AS STATED THEREIN, IF THERE IS A DIFFERENCE BETWEEN THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES, THE SUPPLEMENTARY PROCEDURES WILL BE USED). YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL. (c) NO CLASS ACTIONS. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS/CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
18. UPDATES TO TERMS
Color Me, reserves the right to modify or add to these Terms or any Additional Terms from time to time. (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the home page of the Sites, and that your use of the Sites after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms from time to time, and before using the Sites. The Updated Terms will be effective upon reasonable notice after posting, or such later date as may be specified in the Updated Terms.
19. MISCELLANEOUS
The failure of Color Me, to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Color Me’s rights with respect to such breach or any subsequent breaches. No waiver by Color Me, of any of these Terms, will be of any force or effect unless made in writing and signed by a duly authorized officer of Color Me. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. Color Me may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Studio Lily’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason is unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against Color Me by virtue of having drafted them.