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The Company reserves the right to deny or terminate your service, for any reason or no reason, provided such denial is not in violation of applicable law
You are using the Services only to assist in the evaluation of your client's hair.
1. Changes. The Company may change this Agreement from time to time by notifying you of such changes by any reasonable means and by making available a revised Agreement through the Services. Your clicking or tapping “OK” or “Agree” (or a similar term) in connection with this Agreement or your use of the Services following any changes will constitute your acceptance of such changes. To the extent permitted by applicable law, the Company may, at any time and without liability, modify or discontinue all or part of the Services; charge, modify or waive any fees required to use the Services where reasonably necessary; or offer opportunities to some or all users. The Company will seek to notify you by reasonable means of (i) any modifications that will have a material adverse effect on the use of the Services, taken as a whole; and (ii) any material increase in the fees charged by it to use the Services.
2. Services. You may use the App and Hair Scanner solely for the use of providing advice to your customers regarding hair services (“Hair Consulting Use”):
Hair Consulting Use. The App is intended to help your experience with the Hair Scanner. Using the Hair Scanner, a smartphone, Bluetooth, and the App will provide images of your client's hair type, tone and condition. Simply create an account on the App, pair the Hair Scanner with the App, and use the Hair Scanner to scan your client's hair. After scanning your client's hair, you will get your client's unique hair assessment results and personalized tips and product recommendations to help your client achieve great looking hair. You may also opt-in to receive exclusive email offers, notifications, and other information and services as are added to the App from time to time.
3. Hair Scanner Terms. Subject to any terms you agreed to upon purchase of your Hair Scanner, the following terms shall apply:
a. Warranty. Company warrants to you that the Hair Scanner will be free from defects in materials and workmanship for a period of 1 year. If the Hair Scanner fails to conform to this Limited Warranty during the Warranty Period, Company will, at its sole discretion, either (a) repair or replace any defective Hair Scanner or component; or (b) accept the return of the Product and refund the money actually paid. Repair or replacement may be made with a new or refurbished product or components, at Company's sole discretion. If the Hair Scanner or a component incorporated within it is no longer available, Company may, at Company's sole discretion, replace the Hair Scanner with a similar product of similar function. This is your sole and exclusive remedy for breach of this Limited Warranty. Any Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired Hair Scanner or replacement Hair Scanner, or (b) the remaining Warranty Period. This Limited Warranty does not cover damage caused by improper use, damage caused by you, breakdowns caused by networks or hardware not controlled by us, including your mobile phone (unless caused by the App). Company expects, and may ask, that you will contact customer service to discuss the problem prior to making a warranty claim.
b. Returns. If you are unhappy with your Hair Scanner you may return it, in original condition, anytime within thirty days of your purchase per the return policies on PaulMitchell.com.
4. Product Terms. You acknowledge and agree that:
a. Product Accuracy. The Services may recommend via email to the client links to Products for their purchase. Such information and the availability of any Product are subject to change at any time without notice.
b. Recommendations. The Services may recommend Products to use on your client. You understand that the Product recommendations are only suggestions, based on our users' experience with the Services and available Products, and you are making and are responsible for all Product selections. You agree that the Company is not responsible to you, in any way, for any products that may be recommended via the Services. You agree that Company is not liable to you, in any way, related to any Products you may use via the Services, including for having recommended such Products. Any and all Product liability is solely between you and your client.
c. Medical Advice. The Services, including App contents, such as text, graphics, images, Hair Scanner, and information obtained from the Services, is not intended to be used or viewed as providing medical advice, or as a substitute for consultation with a healthcare provider. The information provided by the Services cannot be the basis for diagnosis of any medical condition or therapy. Individuals are advised to ALWAYS SEEK THE ADVICE OF YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION AND BEFORE STARTING ANY NEW TREATMENT. THIS APP IS NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. Individuals are further advised to never disregard professional medical advice or delay in seeking it because of something they have read or learned from the Services.
5. Information Submitted Through the Services.
6. Jurisdiction Issues. The Services may not be appropriate or available for use in some jurisdictions. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the availability of the Services at any time, in whole or in part, to any person or geographic area that we choose.
7. Rules of Conduct. You must not:
a. Use the Services for any purpose not directly and fully part of the Services. Without limiting the generality of the foregoing, you will not:
b. Post, transmit or otherwise make available through or in connection with the Services any materials that are or may be: (a) threatening, harassing, degrading, hateful, intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous or fraudulent; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
c. Remove any copyright, trademark or other proprietary rights notice from the Services or otherwise re-brand the Services, except as explicitly contemplated in an applicable B2B Agreement.
d. Post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
e. Use the Services for any purpose that is fraudulent or otherwise unlawful.
f. Use the Products according to the Product Supplier's guidelines and solely for use on your clients.
g. Not re-subscribe under a new or the same account.
h. Collect information about users of the Services, except pursuant to the terms related to Customer Use.
i. Interfere with the operation of the Services or the servers or networks used to make the Services available, including by hacking or defacing any portion of the Services, or violate any requirement or policy of such servers or networks.
j. Restrict or inhibit any other person from using the Services.
k. Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Services except as expressly authorized under this Agreement, without the Company's express prior written consent.
l. Reverse engineer, decompile or disassemble any portion of the Services, except where such restriction is expressly prohibited by applicable law.
m. Systematically download and store Services content.
n. Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of the Services, we grant to the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice.
o. You are responsible for obtaining, maintaining and paying for all hardware, telecommunications and other services needed for you to use the Services.
8. Your Account and Password.
a. You are solely responsible for maintaining the confidentiality of your password(s) and for restricting access to your mobile device, computer, and/or other means of accessing this App and for all activities that occur under your Account or password. We will not be liable for any loss that you may incur as a result of someone else using your Account or password, either with or without your knowledge. You agree to notify us immediately of any unauthorized use of your Account and/or password(s) and any other breach of security relating to the App. You agree that any information you provide to us will be current, accurate and complete and that you will keep such information up to date by notifying us of any changes.
b. We reserve the right to terminate any account at any time in our sole discretion, including without limitation for any failure to comply with this Agreement, any fraud or abuse, or any misrepresentation that you or anyone using your account may make to us.
10. Company's Proprietary Rights. We and our suppliers own the Services, which are protected by proprietary rights and laws. Our trade names, trademarks and service marks include John Paul Mitchell Systems, HAIR AI, and any associated logos. All trade names, trademarks, service marks and logos (collectively, “Marks”) on the Services not owned by us are the property of their respective owners. You may not use our Marks in connection with any product or service that is not ours or in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting any right to use any Marks without the express prior written consent of the owner.
11. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE SECURE, THAT ANY USER NAME, PASSWORD OR OTHER SECURITY MEASURE THAT YOU MAY USE OR ALLOW OTHERS TO USE IN CONNECTION WITH THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS TO YOUR SERVICES ACCOUNT OR RELATED INFORMATION, OR THAT YOUR SERVICES ACCOUNT OR RELATED INFORMATION WILL NOT BE ACCESSED OR MISUSED BY ANY THIRD PARTY.
ALL DISCLAIMERS OF ANY KIND IN THIS AGREEMENT (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “COMPANY PARTIES”).
While we take reasonable steps to try to maintain the timeliness, integrity and security of the Services, we cannot guarantee that they are or will remain updated, complete, correct or secure, or that access to them will be uninterrupted. The Services may include inaccuracies, errors and materials that conflict with this Agreement.
12. LIMITATION OF LIABILITY.
NOTHING IN THIS AGREEMENT RESTRICTS, EXCLUDES OR MODIFIES OR PURPORTS TO RESTRICT, EXCLUDE OR MODIFY ANY MANDATORY STATUTORY CONSUMER RIGHTS UNDER APPLICABLE LAW. IN RESPECT OF ANY CONDITIONS, WARRANTIES OR GUARANTEES THAT CANNOT BE EXCLUDED UNDER APPLICABLE STATUTES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR LIABILITY IS LIMITED (AT OUR OPTION) TO THE RESUPPLY OR REFUND OF THE COST OF THE RELEVANT PORTION OF THE SERVICES.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR LOSSES THAT WERE NOT FORESEEABLE TO YOU OR US AT THE TIME YOU AGREED TO THIS AGREEMENT, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, AND UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY (COLLECTIVELY, “INDIRECT LOSSES”). LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THE CONTRACT WAS MADE, BOTH YOU AND WE KNEW IT MIGHT HAPPEN.
THE COMPANY PARTIES DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS, FOR GROSS NEGLIGENCE OR WILLFUL BEHAVIOR, OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
OUR MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO USE THE SERVICES; AND (B) TEN UNITED STATES DOLLARS ($10).
ALL LIMITATIONS OF LIABILITY OF ANY KIND IN THIS AGREEMENT (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE COMPANY PARTIES.
IN RESPECT OF ANY CONDITIONS, WARRANTIES OR GUARANTEES THAT CANNOT BE EXCLUDED UNDER STATUTE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, OUR LIABILITY IS LIMITED (AT OUR OPTION) TO THE RESUPPLY OR REFUND OF THE COST OF RELEVANT SERVICES.
13. Third Party Claims. If the Company is sued by a third party as a result of your breach of this Agreement or your infringement of any third-party right, then, to the fullest extent permitted by applicable law, you will be responsible for all liabilities, damages, judgments, awards, losses, costs, expenses and fees (including reasonable attorneys' fees) incurred by the Company Parties.
14. Termination. You may stop using the Services, and thereby terminate this Agreement, at any time. The Company may terminate or suspend your use of the Services if you do not comply with this Agreement. Where reasonable under the circumstances, the Company will provide you with at least twenty-four (24) hours' prior notice of termination or suspension, provided that if it reasonably believes that you have materially breached this Agreement, it may immediately terminate or suspend you. Upon any termination or suspension, your right to use the Services will immediately cease, and the Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without obligation to provide further access to such materials. The Preamble and Sections 1, 2, 3a, 4c, 5-13 and 19 shall survive any expiration or termination of this Agreement.
15. Information, Feedback, or Complaints. If you have a question or complaint, or any Feedback regarding the Services, please contact Company's Customer Service at firstname.lastname@example.org. Such complaints may include any alleged infringement of intellectual property, misuse of data, or product quality concerns. The Company take such questions and complaints seriously, in the context of wanting to provide users valuable data, product information, and help towards beautiful hair. “Feedback” means any ideas, proposals or suggestions about the Service, which you agree is not confidential and that your provision of it is gratuitous, assigns the Company right, title and interest in the Feedback, is unsolicited and without restriction and imposes no obligations on us.
16. Export Controls. The Services may be subject to export controls restrictions. The Company will not knowingly make the Services available to you if you are, and you confirm that you are not, (a) located in, or a resident or a national of, any country subject to a U.S. or Canadian government embargo or trade sanction; or (b) on any government lists of restricted end users.
17. Other Important Terms.
a. This Agreement is governed by and shall be construed in accordance with the laws of California without regard to its principles of conflicts of law, and regardless of your location. All disputes between you and the Company arising out of or related to the Services or this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory and including non- contractual disputes or claims, will be subject to the exclusive jurisdiction of the federal and state courts located in the County of Los Angeles, and you waive any jurisdictional, venue or inconvenient forum objections to such courts.
b. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
c. This Agreement is between you and the Company. Except if explicitly set forth herein no other person shall have any rights to enforce any of the terms of this Agreement.
d. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.
e. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without the Company's prior written consent. The Company may assign, transfer or sublicense any or all of its rights or obligations under this Agreement without restriction.
f. Notices to you (including notices of changes to this Agreement) may be made via posting to the Services or by e-mail (including in each case via links), or by regular mail.
g. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default.
h. Neither party will be responsible for any failure to fulfill any obligation due to any cause beyond its control.
i. This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and the Company relating to the subject matter of this Agreement, and, in the absence of fraud, supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company relating to such subject matter.
j. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
© John Paul Mitchell Systems 2020, all rights are reserved.