TERMS OF SALE
The Terms of sale together with any documents they expressly incorporated by reference herein (the “Terms”) apply to the purchase and sale of products and services through www.beauty360consulting.com (the “Website”). The Terms are subject to change by Beauty 360 Consulting, LLC, a New York limited liability company (the “Company” and sometimes referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of the Terms will be posted on the Website, and you should review the Terms prior to purchasing any product or services that are available through the Website. Your continued use of the Website after a posted change in the Terms will constitute your acceptance of and agreement to such changes.
The Terms are an integral part of the Website User Agreement [INSERT LINK TO AGREEMENT] (the “Agreement”) that apply generally to the use of our Website. You should also carefully review the Agreement before placing an order for products or services through the Website.
1. Order Acceptance and Cancellation. You agree that any order you submit to us is an offer to buy, under the Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the requested products and/or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of your order. Acceptance of your order and the formation of the contract of sale between the Company and you will not take place unless and until you have received your order confirmation e-mail.
2. Prices and Payment Terms.
(a) All prices posted and membership benefits identified on the Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your order total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for your purchases, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
(c) You shall, at your sole expense, pay for costs incurred by the Company in connection with the performance of on-site services purchased by you, including, without limitation, those expenses associated with hotel accommodations and standard/economy class airfare, ground transportation, meals, and tips, provided that all expenses (i) in excess of seven hundred fifty dollars and no cents ($450.00) (not including airfare) per day for travel to and lodging in the following cities: New York, Boston, Chicago, Los Angeles, and San Francisco or (ii) in excess of five hundred dollars and no cents ($350.00) (not including airfare) per day for travel to and lodging in all other locations must be approved by you in advance. You hereby authorize the Company to charge your credit card for any such expenses when they are incurred on behalf of the Company. In the event that the Company pays for any such expenses, you shall reimburse the Company for such expenses within thirty (30) days after The Company provides you with substantiation of such expenses having been incurred by the Company.
(d) You shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by you hereunder; provided, that, in no event shall you pay or be responsible for any taxes imposed on, or with respect to, the Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(e) Except for invoiced payments that you have successfully disputed, all late payments shall bear interest at the lesser of the rate of ten percent (10%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You shall also reimburse the Company for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the provision of any services you have ordered if the you fail to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
3. Memberships.
(a) Any Salon Performance Network Membership (a “Membership”) purchased requires a minimum commitment of twelve (12) months, and any benefits included as part of a Membership must be used within twelve (12) months of the initial order for such benefits. Unused benefits will not roll over into additional years of Membership and will expire twelve (12) months from the date of purchase of such benefits.
(b) Membership levels may not be substituted. Once you purchase a Membership, you are not eligible to receive benefits attributable to another level of Membership, and any such additional benefits must be purchased à la carte.
(c) Membership fees do NOT include the following: (i) on-site educator travel and accommodations or (ii) any additional materials prepared for and distributed to you. You hereby authorize the Company to charge your credit card for such additional expenses.
(d) The Company may terminate your Membership for any reason or no reason upon providing thirty (30) days’ written notice of such termination to you.
(e) The Company may immediately terminate your Membership without providing advance notice if you (i) fail to make a payment that has become due pursuant to the terms of a specific Membership program and/or (ii) attempt to cancel your Membership before the expiration of the term of such Membership. In the event of an immediate termination by the Company pursuant to this subsection, you hereby agree to pay to the Company as liquidated damages the greater of the value of three (3) monthly payments that have or will become due under the applicable Membership program or the retail value of services rendered or materials provided by the Company pursuant to the applicable Membership program as of the date of such immediate termination. Such liquidated damages payment shall be in addition to any payments you have already made pursuant to the terms of the applicable Membership.
4. Shipments; Delivery; Title and Risk of Loss.
(a) The Company will arrange for shipment of any products to you. You will pay all shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our transfer of products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
5. Returns and Refunds. Except for any products designated on the Website as non-returnable, we will accept a return of products for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within ten (10) days of shipment and provided such products are returned in their original condition. To return products, you must e-mail Allyson Hurley King at allyson@beauty360consulting.com to obtain a return merchandise authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number.
You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
Your refund will be credited back to the same payment method used to make the original purchase on the Website. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED ON THE WEBSITE AS NON-RETURNABLE.
6. Goods Not for Resale. You agree to comply with all applicable laws and regulations of the various states and of the United States and with the laws of any other jurisdiction outside the United States. You represent and warrant that you are buying products or services from the Website for your own personal use only, and not for resale.
7. Intellectual Property Use and Ownership. You acknowledge and agree that:
(a) All uses on the Website of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price” and the like mean the purchase or sale of a license. Each product and service marketed on the Website is made available solely for license, not sale, to you and other prospective customers under the terms, conditions and restrictions of the license granted in the section titled “Licenses” herein.
(b) You will comply with all terms and conditions of any license granted for any product or service you obtain through the Website, including, but not limited to, all confidentiality obligations and restrictions on resale, use, reverse engineering, copying, making, modifying, improving, sublicensing, and transfer of those licensed products and services.
(c) You will not cause, induce, or permit others’ noncompliance with the terms and conditions of any of these any licenses grant hereunder.
(d) The Company is and will remain the sole and exclusive owner of all intellectual property rights in and to each product and service made available on the Website and any related specifications, instructions, documentation, or other materials, including, but not limited to, all related copyrights, patents, and trademarks, and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available through the Website, or of any intellectual property rights relating to those products or services.
8. Licenses.
(a) Except as set forth below, all right, title and interest in and to (i) the work product that The Company is required to deliver to you pursuant to the Terms (the “Deliverables”) and other documents and materials related thereto that the Company is required to or otherwise does create or provide to you in connection with the services it shall provide to you pursuant to the Terms (collectively, the “Work Product”) and (ii) all works, inventions, and other subject matter incorporating, based on or derived from any Work Product, including all customizations, enhancements, improvements and other modifications thereof (collectively, “Derivatives”), in each case (subclause (i) and subclause (ii)) by whomsoever made and including all intellectual property rights therein, are and will remain with the Company. You have no right or license with respect to any Work Product or Derivatives except as expressly licensed pursuant to subsection (c) below. All other rights in and to the Work Product and Derivatives are expressly reserved by the Company.
(b) You are and will remain, the sole and exclusive owner of all right, title, and interest in and to any materials produced exclusively for you pursuant to the Terms, including all intellectual property rights therein, subject only to the license granted pursuant to subsection (c) below.
(c) The Company hereby grant you a license to use the Work Product and any Derivatives free of additional charge and on a non-exclusive, worldwide, non-transferable, nonsublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable you to make reasonable use of the Deliverables and the services provided to you pursuant to the Terms
9. Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Website.
10. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached the Terms, for any failure or delay in our performance under the Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
11. Limited Warranty and Limit of Liability.
(a) The Company warrants that it shall perform all services hereunder (i) in accordance with the terms and subject to the conditions set out in these Terms, (ii) using personnel of required skill, experience, and qualifications, (iii) in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
(b) The Company’s sole and exclusive liability and your sole and exclusive remedy for breach of the warranty contained in subsection (a) of this section shall be as follows:
(i) The Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if the Company cannot cure such breach within a reasonable time (but no more than sixty (60) days) after your written notice of such breach, you may, at your option, terminate any Membership or other agreement between you and the Company by serving written notice of termination in accordance with these Terms.
(ii) In the event the Agreement is terminated pursuant to this section, the Company shall within sixty (60) days after the effective date of termination, refund to you any fees paid by the you as of the date of termination for any products or services ordered by you, less a deduction equal to the fees for receipt or use of such product(s) and/or service(s) up to and including the date of termination on a pro-rated basis.
(iii) The foregoing remedy shall not be available unless you provides written notice of such breach within sixty (60) days after delivery of such product(s) and/or service(s) to you.
(iv) THE COMPANY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SUBSCTION (A) OF THIS SECTION. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
(c) IN NO EVENT SHALL THE COMPANY AND/OR ANY PARTY ACTING ON BEHALF OF THE COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY AND/OR AND/OR ANY PARTY ACTING ON BEHALF OF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY AND/OR ANY PARTY ACTING ON BEHALF OF THE COMPANY (INDIVIDUALLY OR JOINT AND SEVERALLY) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY BY YOU FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Governing Law and Jurisdiction. All matters arising out of or relating to the Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
13. Dispute Resolution and Binding Arbitration.
(a) YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE WBSITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect. The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
14. Assignment. You will not assign any of your rights or delegate any of your obligations under the Terms without our prior written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under the Terms.
15. No Waivers. The failure by us to enforce any right or provision of the Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company
16. No Third Party Beneficiaries. The Terms do not and are not intended to confer any rights or remedies upon any person other than you.
17. Notices.
(a) To You. We may provide any notice to you under the Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Website. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under the Terms, you must contact Allyson Hurley King at allyson@beauty360consulting.com or 487 Myrtle Avenue Brooklyn, New York 11205. We may update our contact information for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by e-mail or overnight courier will be effective one (1) business day after they are sent. Notices provided by registered or certified mail will be effective three (3) business days after they are sent.
18. Severability. If any provision of the Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from the Terms and will not affect the validity or enforceability of the remaining provisions of the Terms.
19. Entire Agreement. Our order confirmation, the Terms, the license agreement relating to any product or service you obtain on or through the Website, our Website User Agreement and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in the Terms.