Last Updated Date: 02/06/2015
1. Acceptance of the TOU
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICE OR BY UPLOADING OR POSTING ANY CONTENT (AS DEFINED BELOW) ON THE SERVICE, YOU, YOUR HEIRS, AND ASSIGNS (COLLECTIVELY, “YOU”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TOU, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SERVICE. IF YOU DO NOT AGREE TO THESE TOU, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE OR CONTENT. If you accept or agree to these TOU on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these TOU and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Certain areas of the Service, including, but not limited to, the areas of the Service through which you may purchase Kolor products, may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (“Product-Specific Terms”). If there is a conflict between these TOU and terms and conditions posted for a specific area of the Service, the Product-Specific Terms will take precedence with respect to your use of or access to that area of the Service.
The Service is intended solely for persons who are 13 or older. Any access to or use of the Service by anyone under 13 is expressly prohibited. By accessing or using the Service you represent and warrant that you are 13 or older.
3. Account Registration
In order to access or use certain features of the Service you may be required to create an account (“Account”) and become a “Registered User” of the Service. During the registration process you will be required to provide certain information and establish a username and a password. You agree to provide accurate, current and complete information during the registration process and at other times when you use the Service and to update such information to keep it accurate, current and complete. Kolor reserves the right in its sole discretion to refuse to keep Accounts for, or provide services to, any individual. Kolor reserves the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Kolor of any unauthorized use of your Account.
5. Ownership and Intellectual Property
The Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these TOU, Kolor and its licensors exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
All trademarks, service marks, logos, trade names and any other proprietary designations of Kolor used herein are trademarks or registered trademarks of Kolor. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
6. Your License to Use the Services
“Content” on the Service means any links, text, graphics, images, music, audio, video, photos, information, code, or other materials available on the Service. Subject to your compliance with these TOU, Kolor grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service, and to access, use, view and print any Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Content, except as expressly permitted in these TOU. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kolor or its licensors, except for the licenses and rights expressly granted in these TOU.
7. User Submitted Content
Notwithstanding the above, if you submit Content to Kolor for Kolor, in its sole discretion, to consider using for its own purposes, you may be asked to agree to a separate license agreement that will supersede this provision with respect to such Content. You acknowledge and agree that Kolor has no obligation to use any Content that you submit and that you have no obligation to agree to license terms other than those presented in this TOU.
You acknowledge and agree that you are solely responsible for all Content that you make available through the Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Content that you make available through the Service or you have all rights, licenses, permissions, consents and releases that are necessary to grant to Kolor the rights in such Content, as contemplated under these TOU; and (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or Kolor’s use of the Content (or any portion thereof) on, through or by means of the Service or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8. Idea or Proposal Submissions/Feedback
For any proposals or ideas that you submit to Kolor, in addition to any other representations or warranties in these TOU, you represent and warrant that you have the right to disclose such ideas or proposal to Kolor and that such disclosure does not violate the rights of any other person or party. You will indemnify and hold harmless and defend Kolor from and against any claims, losses, expenses and liabilities arising from breach by you of the foregoing representation and warranty.
By submitting your idea or proposal you acknowledge and recognize that Kolor has a number of well-established product lines and is continually busy working on new products, services and technologies, and as such, Kolor may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. Accordingly, nothing in this TOU shall be construed as a representation or inference that Kolor will not independently develop or authorize the development of products, services or ideas, for itself or for others, that may compete with or be similar to the proposals or ideas you submit. Moreover, Kolor assumes no fiduciary or confidential obligation of any kind with respect to any proposals, ideas or suggestions made by you that relate to Kolor product lines or services. You understand we cannot and do not agree to treat as confidential your ideas, proposals, products, improvements or any other information you may decide to submit or disclose to us, even if the documents are marked as confidential or you indicate the confidential nature of the information, except to the extent covered by a separate written nondisclosure agreement, if any, we may choose to enter into with you. You also understand and agree that Kolor’s willingness to review any proposals or ideas is not an admission by Kolor of novelty, priority, or originality and does not impair Kolor’s right to contest existing or future patents or copyrights claiming the ideas. You agree that Kolor assumes no liability in reviewing these proposals or ideas and agree to rely solely upon such protection as may be afforded under the Patent and Copyright Statutes of the United States of America.
If you choose to provide feedback, comments and suggestions for improvements to the Service or otherwise (in written or oral form) (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of Kolor and you hereby irrevocably assign to Kolor and agree to irrevocably assign to Kolor all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.
9. Copyright Policy
Kolor respects copyright law and expects its users to do the same. Kolor has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Kolor’s Copyright Policy here, for further information.
10. General Prohibitions
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Service, or any individual element within the Service, Kolor’s name, any Kolor trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kolor’s express written consent;
- Access, tamper with, or use non-public areas of the Service, Kolor’s computer systems, or the technical delivery systems of Kolor’s providers;
- Attempt to probe, scan, or test the vulnerability of any Kolor system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Kolor or any of Kolor’s providers or any other third party (including another user) to protect the Service or Content;
- Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Kolor or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Kolor trademark, logo URL or product name without Kolor’s express written consent;
- Use the Service or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these TOU;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Kolor will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kolor may involve and cooperate with law enforcement authorities in prosecuting users who violate these TOU. You acknowledge that Kolor has no obligation to monitor your access to or use of the Service or Content or to review or edit any Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these TOU, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Kolor reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Content, that Kolor, at its sole discretion, considers to be objectionable for any reason, in violation of these TOU or otherwise harmful to the Service.
The Service contains links to other websites and online resources and you understand that by using the Service and accessing third party links, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that Kolor is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Kolor of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
12. Sweepstakes and Contests
Kolor may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Service. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Service, as they may contain additional important information about Kolor’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these TOU, the terms and conditions of such Official Rules will control.
Kolor reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these TOU, at any time and without prior notice. If we modify these TOU, we will post the modification on the Site or via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these TOU. By continuing to access or use the Service after we have posted a modification on the Site or via the Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified TOU. You may also be asked to re-acknowledge and re-accept the TOU following any material changes. If the modified TOU are not acceptable to you, your only recourse is to cease using the Service.
14. Termination and Account Cancellation
If you breach any of these TOU, Kolor will have the right to suspend or disable your Account or terminate these TOU, at its sole discretion and without prior notice to you. Kolor is under no obligation to continue to support the Service in any way, or to provide you with updates or error corrections to Service. Your rights under these TOU will terminate immediately and automatically, with or without notice in Kolor’s sole discretion, if Kolor ceases to support the Service. Kolor reserves the right to revoke your access to and use of the Service and Content at any time, with or without cause. You may cancel your Account at any time by contacting Kolor.
THE SERVICE AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KOLOR EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KOLOR MAKES NO WARRANTY THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. KOLOR MAKES NO WARRANTY THAT KOLOR WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PARTICULAR SOFTWARE FOR ANY PARTICULAR LENGTH OF TIME AND KOLOR RESERVES THE RIGHT TO CHANGE AND UPDATE THE SERVICE AND ANY SOFTWARE WITHOUT NOTICE TO YOU. KOLOR MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KOLOR OR THROUGH THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.
You agree to defend, indemnify, and hold Kolor, its subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service or Content, or your violation of these TOU.
17. Limitation and Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT REMAINS WITH YOU. NEITHER KOLOR NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KOLOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL KOLOR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TOU OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KOLOR AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
18. Controlling Law and Jurisdiction
These TOU and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
19. Entire Agreement
These TOU constitute the entire and exclusive understanding and agreement between Kolor and you regarding the Service and Content, and these TOU supersede and replace any and all prior oral or written understandings or agreements between Kolor and you regarding the Service and Content.
You may not assign or transfer these TOU, by operation of law or otherwise, without Kolor’s prior written consent. Any attempt by you to assign or transfer these TOU, without such consent, will be null and of no effect. Kolor may assign or transfer these TOU, at its sole discretion, without restriction. Subject to the foregoing, these TOU will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these TOU, will be in writing and given by Kolor (i) via email (in each case to the address that you provide) or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
22. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
You and Kolor agree that any dispute, claim or controversy arising out of or relating to these TOU or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Kolor are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Kolor otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these TOU.
Arbitration Rules and Governing Law
. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med
or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477
and a separate form for California residents at www.adr.org/si.asp?id=3485
.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Kolor otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Kolor submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Kolor will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Kolor will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
. Notwithstanding the provisions of the “Modification” section above, if Kolor changes this “Dispute Resolution” section after the date you first accepted these TOU (or accepted any subsequent changes to these TOU), you may reject any such change by emailing contacting Kolor contact form
and communicating such rejection within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Kolor’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kolor in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these TOU (or accepted any subsequent changes to these TOU).
The failure of Kolor to enforce any right or provision of these TOU will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kolor. Except as expressly set forth in these TOU, the exercise by either party of any of its remedies under these TOU will be without prejudice to its other remedies under these TOU or otherwise. If for any reason a court of competent jurisdiction finds any provision of these TOU invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these TOU will remain in full force and effect.
24. Contacting Kolor
If you have any questions about these TOU, please contact visit kolor.com/contact.