Last updated: February 2, 2023

oVertone® Terms of Use
 
Overtone Color LLC and its affiliates (“oVertone,” “we” or “us”) own and operate www.overtone.co (this “Website”). Access to and use of this Website, its features, and the products and services available through this Website, including, without limitation, the oVertone Color Club rewards program and the oVertone PRO program (collectively, the “Services”), are subject to the following terms, conditions, and notices (the “Terms of Use” or “Terms”). The Terms of Use include and incorporate by reference the Color Club Addendum and the PRO Addendum below, which describe, respectively, our Color Club rewards program and our PRO Program for salon professionals.
 
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THESE TERMS OF USE CONTAIN AN AGREEMENT TO ARBITRATE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND.
 
By accessing or using the Services, you are agreeing to all of these Terms of Use, as may be updated by us from time to time, as well as our Privacy Policy, as it may be updated by us from time to time. Please read each of them carefully. You should check these Terms of Use and our Privacy Policy regularly to take notice of any changes we may have made. Any person or entity who interacts with the Website through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is considered to be using the Services.
 
Access and Use
 
Subject to your compliance with these Terms of Use, oVertone or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services. Access to and use of the Services is permitted on a temporary basis, and we reserve the right to withdraw or amend the Services without notice. All rights not expressly granted to you in these Terms of Use are reserved and retained by oVertone or its licensors, suppliers, publishers, rightsholders, or other content providers.

You may use the Services only as permitted by law. The licenses granted by oVertone terminate immediately and automatically if you do not comply with these Terms of Use. We will not be liable if, for any reason, this Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of this Website.
 
This Website may contain links to other websites that are not operated by oVertone (the “Linked Sites”); oVertone has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites will be subject to the terms of use and service contained within each such site.
 
You may post reviews, comments, photos, images, graphics, videos, audio recordings, and other content and submit suggestions, ideas, comments, questions, or other information (collectively “User Content”), so long as such content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages. The term User Content includes, without limitation, any content you (i) submit or post on the Website or through tools or applications we provide for posting or sharing such content with us or (ii) have posted or uploaded to your social media accounts, including, but not limited to, Instagram, Twitter, Facebook, Tumblr, and Pinterest, and allowed us to feature. When you publicly post material on the Internet with hashtags or other identifiers such as #overtone or #overtonecolor, you agree that such postings constitute User Content.
 
If you post any User Content, and unless we indicate otherwise, then you grant oVertone a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, and fully sublicensable and transferable right and license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use, or otherwise exploit all or any portion of the User Content, as well as your name, persona, and likeness included in any User Content and your social media account handle, username, real name, profile picture, and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media, or technology, whether now known or later developed, including, without limitation, in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales, or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms of Use or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. oVertone will be free to use any ideas, concepts, know-how, or techniques contained in such User Content for any purpose whatsoever, including, but not limited to, developing,manufacturing, and marketing products that incorporate or otherwise rely upon such information. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
 
By submitting or posting User Content, you represent and warrant that: you own or otherwise control all of the rights to the User Content that you post; the User Content is accurate; use of the User Content you supply does not violate these Terms of Use and will not cause injury to any person or entity; and you will indemnify oVertone for all claims resulting from content you supply. oVertone reserves the right (but not the obligation) to remove or edit such content but does not regularly review posted content. oVertone takes no responsibility and assumes no liability for any content posted by you or any third party.
 
Prohibitions
 
The right to access and use the Services does not include the following: any resale or commercial use of any Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any Services or its contents; any downloading, copying or other use of account information for the benefit of any third party; or any use of data mining, robots or similar data gathering and extraction tools.
 
With respect to the Services and all parts of the Services, you will not engage in any of the following: commit or encourage a criminal offense; transmit or distribute a virus, trojan, worm, logic bomb, or any other material that is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Services; corrupt data; cause annoyance to other users; infringe upon any other person’s proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as "spam"; use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a payment card or other content; or attempt to affect the performance or functionality of any computer facilities of or accessed through this Website. Breaching this provision could constitute
a criminal offense and oVertone will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
 
You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of oVertone without our express written consent. You may not use any meta tags or any other “hidden text” utilizing the oVertone name or trademarks without the express written consent of oVertone. You may not  misuse the Services.
 
Content, Software, and Intellectual Property
 
All content included in or made available through any Services, such as text, graphics, logos, button icons, images, video and audio clips, digital downloads, data compilations, and all software is the property of oVertone or its content suppliers and protected by U.S. and international intellectual property laws, including, without limitation, U.S. and international copyright laws. Furthermore, the compilation of all content included in or made available through any Services is the exclusive property of oVertone and protected by U.S. and international copyright laws.
 
In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Services are trademarks or trade dress of oVertone in the United States and other countries. oVertone trademarks and trade dress, including, without limitation the oVertone® mark, may not be used in connection with any product or service that is not an oVertone product or service, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits oVertone. All other trademarks not owned by oVertone that appear in any Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by oVertone. Except where expressly stated to the contrary, all persons (including their names and images), third-party trademarks and content featured on this Website are in no way associated, linked, or affiliated with oVertone, and you should not rely on the existence of such a connection or affiliation. Where reference is made to a trademark or brand name, it is used solely to describe or identify the product or service and is in no way an assertion that such product or service is endorsed by or connected to oVertone.
 
All intellectual property rights are reserved by oVertone and its licensors. You may store, print, and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute, or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or that appears on this Website nor may you use any such content in connection with any business or commercial enterprise.
 
Copyright Policy
 
We respect the intellectual property rights of others, and we ask our users to do the same. If you believe any materials accessible on or from this Website infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. §512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following: 

•  Your physical or electronic signature;
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works;
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address);
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
• A statement that the information in the written notice is accurate; and
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. 

Our designated copyright agent to receive DMCA Notices is:
 
DMCA Designated Agent
 
Overtone Color LLC

2810 N Church St PMB 82701 Wilmington, DE 19802-4447
 
520-448-3305
 
dmca@overtone.co
 
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
 
Upon receipt of notices complying with the DMCA, oVertone 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. 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.
 
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
 
THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING OVERTONE ABOUT INFRINGEMENTS OF COPYRIGHTED MATERIAL. ALL OTHER COMMUNICATIONS, SUCH AS PRODUCT- OR SERVICE-RELATED QUESTIONS AND REQUESTS, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
 
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
 
Terms of Sale
 
You may need your own oVertone account to use certain parts of the Services, and you may be required to be logged into the account and have a valid payment method associated with it. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password.
 
To contract with oVertone you must be at least 18 years of age and possess a valid credit or debit card issued by a bank acceptable to us. oVertone retains the right to refuse any request made by you. If your order is accepted, then we will inform you by email, and we will confirm the identity of the party with whom you have contracted. This will usually be oVertone or may in some cases be a third party. Where a contract is made with a third party, oVertone is not acting as either agent or principal and the contract is made between yourself and that third party and will be subject to the terms of sale that the third party supplies to you. When placing an order, you undertake that all details you provide to us are true and accurate, that you are an authorized user of the credit or debit card used to place your order, and that there are sufficient funds to cover the cost of the goods. oVertone reserves the right to refuse service, terminate accounts, terminate your rights to use the Services, remove or edit content, or cancel orders in our sole discretion.
 
By placing an order, you are offering to purchase a product or service on and subject to the following terms and conditions. All orders are subject to availability and confirmation of the order price. The cost of foreign products and services may fluctuate. All prices advertised are subject to changes. Dispatch times may vary according to availability and subject to any delays resulting from postal delays or force majeure events for which we will not be responsible. 

1. Our Contract. When you place an order, you will receive an acknowledgement email confirming receipt of your order; this email will only be an acknowledgement and will not constitute acceptance of your order. A contract between us will not be formed until we send you confirmation by email that the goods that you ordered have been dispatched to you. Only those goods listed in the confirmation email sent at the time of dispatch will be included in the contract formed.

2. Pricing and Availability. Although we try to ensure that all details, descriptions, and prices that appear on this Website are accurate, errors may occur. We attempt to display accurately on the Website the colors and images of our products, but we cannot guarantee that your computer monitor's display of any color will be accurate. If a product offered by oVertone itself is not as described, then your sole remedy is to return it in unused condition. If we discover an error in the price of any goods that you have ordered, then we will inform you of this as soon as possible and give you the option of reconfirming your order at the correct price or cancelling it. If we are unable to contact you, then we will treat the order as cancelled; if you cancel and you have already paid for the goods, then you will receive a full refund. We reserve the right to limit our sales, or the quantity of our sales, to any person, geographic region, or jurisdiction, and we may exercise this right on a case-by-case basis.

3. Shipping Fees; Custom and Duty Fees. In addition to the price for the product, we charge a shipping fee; such additional charges are clearly displayed where applicable and included in the “Total Cost.” Furthermore, all customs and duty fees, and any applicable sales taxes, are your responsibility to pay. Shipping costs are non-refundable, which includes returns, package rejection upon arrival, and/or failure to pay duty fees.

4. Payment. Upon receiving your order we carry out a standard authorization check on your payment card to ensure there are sufficient funds to fulfill the transaction; your card will be debited upon authorization being received. The monies received upon the debiting of your card will be treated as a deposit against the value of the goods you wish to purchase. Once the goods have been dispatched and you have been sent a confirmation email, the monies paid as a deposit will be used as consideration for the value of goods you have purchased as listed in the confirmation email. The risk of loss and title for products pass to you upon our delivery to the carrier.

5. Returns and Refunds. oVertone does not take title to returned items until the item arrives at our designated location. At our discretion, a refund may be issued without requiring a return. In this situation, oVertone does not take title to the refunded item.  

Electronic Communications
 
Unless you notify us otherwise in accordance with our Privacy Policy, you consent to receive communications from us electronically, such as emails, texts, mobile push notices, or notices and messages on this Website or through any other Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
 
oVertone Messaging Terms & Conditions
 
You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. promotions, cart reminders) from us, including text messages that may be sent using an autodialer or non-autodialer technology, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply.
 
Message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. The short code we use for text messages is supported by U.S. mobile carriers (for example, AT&T, Verizon Wireless, T-Mobile). Please note, however, that the supporting mobile carriers may change without notice, and the particular message service you join, including those operated through a different number, may be limited to specific mobile carriers. We also reserve the right to change the short code or phone number from which messages are sent and we will notify you when we do so. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. We, and our service providers and the mobile carriers supported by the program, are not liable for delayed or undelivered messages.
 
Cancellation
 
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that we and our service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from us through any other programs you have joined until you separately unsubscribe from those programs.
 
Help
 
Text the keyword HELP to our shortcode to return customer care contact information.
 
Customer Care
 
If you are experiencing any problems, please visit https://help.overtone.co/support/home and provide the details about your problem or your request for support, or email help@overtone.co
 
Contact
 
This message program is a service of [Company], located at [address].
 
International Users
 
The Website is controlled, operated, and administered by oVertone from its offices within the United States and is not intended to subject oVertone to the laws or jurisdiction of any state, country, or territory other than that of the United States. Although the Website may be accessed from countries around the world, oVertone makes no representation that the Website or Services are appropriate or available for use in any jurisdiction other than the United States. If you choose to access the Website from outside the United States, you do so on your own initiative and at your own risk and are responsible for complying with all local statutes, orders, regulations, rules, and other laws.
 
Export Policy
 
You agree that any purchased goods licensed or sold on the Website, which may include software and technology, and all software that is contained on the Website (including all HTML code and controls), are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. THE COPYING OR REPRODUCTION OF SUCH SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. By purchasing, downloading, or using technology or software from the Website, you agree to abide by applicable laws, rules, and regulations including, but not limited to, the Export Administration Act and the Arms Export Control Act, and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law.

Disclaimer of Liability
 
THE SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES ARE PROVIDED BY OVERTONE ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. OVERTONE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
 
TO THE FULL EXTENT PERMISSIBLE BY LAW, OVERTONE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OVERTONE DOES NOT WARRANT THAT THE SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, OVERTONE SERVERS, OR ELECTRONIC COMMUNICATIONS SENT FROM OVERTONE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
 
TO THE FULL EXTENT PERMISSIBLE BY LAW, OVERTONE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY SERVICES, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY SERVICES, INCLUDING, BUT NOTLIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
 
FURTHERMORE, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THIS WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. 
 
IF YOU ARE DISSATISFIED WITH THE PRODUCTS OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PRODUCTS OR SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN. TO THE EXTENT PROHIBITED BY LAW, THE FOREGOING SHALL NOT APPLY TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, OVERTONE SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES, OR ANY MATERIALS THEREIN, UNLESS SUCH DAMAGES OR INJURIES ARE THE RESULT OF OVERTONE’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACTS OR INTENTIONAL MISCONDUCT.
 
EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN YOU AND OVERTONE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OVERTONE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S).
 
Linking to this Website
 
You may link to our Website, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but, without our prior express written consent, you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part where none exists. This Website must not be framed on any other site. We reserve the right to withdraw linking permission without notice in our sole discretion.
 
Indemnity
 
You agree to indemnify, defend, and hold harmless oVertone, its managers, officers, employees, consultants, agents, and affiliates, from any and all claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees and court costs) arising from, related to, or in connection with your use of this Website or your breach of the Terms of Use.
 
Variation
 
oVertone will have the right in its absolute discretion at any time and without notice to amend, remove, or vary the Services and/or any page of this Website.
 
Invalidity
 
If any part of the Terms of Use is unenforceable (including any provision or portion of a provision in which we exclude our liability to you), then the enforceability of any other part of the Terms of Use (including portions of provisions) will not be affected and all other clauses will remain in full force and effect. So far as possible, where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause/sub-clause will be interpreted accordingly. Alternatively, you agree that the clause/sub-clause will be rectified and interpreted in such a way that closely resembles the original meaning of the clause /sub-clause as is permitted by law.
 
Waiver
 
Our failure to exercise or enforce, our partial exercise or enforcement of, or our delay in exercising or enforcing any right or remedy under these Terms of Use shall not operate as a waiver or estoppel of any right or remedy.
 
Disputes
 
These Terms of Use shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, without giving effect to any conflict of law provisions. By using any Services, you agree that any dispute relating in any way to these Terms of Use, your visit to the Website, to any purchase, return, or other transaction with the Website or in any way related to the Terms or your receipt of text messages from us or our service providers, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises, will be submitted to confidential arbitration in Denver, Colorado. However, if you have in any manner violated or threatened to violate any oVertone intellectual property right, oVertone may seek injunctive or other appropriate relief in any state or federal court in Denver, Colorado. You consent to exclusive jurisdiction and venue in these courts. Any claim or cause of action you may have with respect to oVertone, the Website, or the Services must be commenced within one year after the claim or cause of action arose. To the full extent permitted by applicable law, any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action.
 
THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER, PLEASE DO NOT USE THE SERVICES.

1. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. BY AGREEING TO ARBITRATION, YOU FURTHER UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE ANY DISPUTES OR CLAIMS. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY. ALTHOUGH REVIEW IS LIMITED, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS WOULD BE AVAILABLE IN COURT, AND MUST ENFORCE THE SAME LIMITATIONS STATED IN THESE TERMS AS A COURT WOULD.

2. Notwithstanding subsection (a) above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of you or we to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency, if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.

3. Any arbitration between you and us will be governed by the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration provision.

4. If you or we intend to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). Our address for Notice is: 2810 N Church St PMB 82701 Wilmington, DE 19802-4447 Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). You and we will make good faith efforts to resolve the claim directly, but if you and we do not reach an agreement to do so within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or we must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

5. If you commence arbitration, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitratorfinds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

6. You and we agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or we made within 14 days of the arbitrator's ruling on the merits.

7. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise in a signed writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
8. Notwithstanding anything to the contrary in these Terms, if we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice within 30 days of the change to our address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and us.  

If an arbitrator decides that applicable law precludes enforcement of any of the limitations above (addressing class, representative and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Terms shall remain in full force and effect.
 
Entire Agreement
 
These Terms of Use, including policies and information linked from or incorporated herein, such as our Privacy Policy and Color Club Addendum, constitute the entire agreement between you and oVertone and supersede any and all preceding and contemporaneous agreements between you and oVertone. No provision of these Terms of Use shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. You may not assign, transfer,or sublicense any of your rights or obligations under these Terms of Use without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.
 
Contact Us
 
If you have any questions or concerns in connection with these Terms of Use or the Website, please contact us at hello@overtone.co or at Overtone Color LLC,.
 
Addendum To Terms of Use
 
oVertone® Color Club Rewards Program
 
The oVertone Color Club Rewards Program (“Color Club”) is a loyalty rewards program that we offer to certain customers through various links and apps on the Website, such as www.oVertone.co/pages/color-club (the “Color Club Page”). Color Club is governed by our Terms of Use, this Addendum, and the Color Club Page (collectively, the “Color Club Terms”). Color Club allows customers who have completed the membership enrollment steps (“you”, a “Color Club Member,” or simply a “Member”) to earn points when making purchases on eligible items and to redeem the points for eligible rewards, benefits, or rebates that we offer Color Club Members from time to time.
 
In our sole discretion, we may restrict, suspend, amend, extend, or otherwise alter the Color Club Terms at any time and without prior notice. If the Color Club Terms have been updated, we will post the new Color Club Terms on the Website and note the date that they were last updated. We encourage Members to review the Color Club Terms each time they use Color Club.
 
Membership Eligibility and Enrollment
 
Membership in Color Club is free, and no initial purchase is required to become a Member. Salon professionals, whether individuals or salon companies, are not eligible for Color Club, and we may post other eligibility restrictions from time to time, but otherwise, Color Club Membership is available to anyone 18 years or older. If a Member does not meet our eligibility requirements then all points awarded to such Member may be forfeited without prior notice, and the Color Club account may be suspended or closed. By enrolling in Color Club, you represent and warrant that you meet the eligibility requirements.
 
To become a Color Club Member, you must complete the enrollment process by indicating your acceptance of the Color Club Terms and providing complete and accurate information in all of the required fields, such as name, email address, mailing address, phone number, username, password, etc. (collectively, “Member Information”). After completion of the enrollment process, you will receive a Member number (“Member Number”) that uniquely identifies your Color Club account (“Account”). Only one Account is permitted per person.
 
Account Information
 
Please let us know immediately of any change to your Member Information. We are not responsible for any communications that you do not receive as a result of failing to update your Member Information.
 
You are responsible for maintaining the accuracy and confidentiality of your Member Information, and you agree to inform us of any changes to your Member Information. You agree not to use the Member Information of any third party or disclose your Member Information to any third party. You are responsible for all activity that occurs in your Account. If you suspect any unauthorized use of your Account, you must notify us immediately.
 
If your Member Number is used by anyone other than you, then all points relating to purchases made by such other person under your Member Number will be credited to your Account. We will not be liable for the redemption of your Color Club points if someone other than you uses your Member Number to redeem points from your Account, and we will have no obligation to restore any points redeemed from your Account.
 
Account Misuse
 
If we determine in our sole discretion that a Member has abused any of the Color Club privileges, failed to comply with any of the Color Club Terms, or made any misrepresentation, then we may take such action as we deem appropriate, including, without limitation, suspending such Member’s Color Club privileges, revoking any or all of the points in such Member’s Account, and canceling such Member’s Account, in each case, with or without advance notice to the Member and without liability to oVertone.
 
Points will not be awarded if, in our sole discretion, the merchandise purchased is likely to be used for resale or commercial use, and any points awarded on such purchases will be forfeited. If a Member was awarded points for an offer or promotion in which a Member purchased products in excess of reasonable quantities, as determined in our sole discretion, then the points awarded as a result of that offer or promotion may be forfeited without prior notice, and the Account may be suspended or closed. We also reserve the right to block redemptions where the Member Information is inaccurate, incomplete, or out of date.
 
Inactive Accounts; Closing of Accounts
 
We may deem an Account inactive if points are not either used or earned in the Account for two years. Once an Account is deemed inactive, all points in the Account may be forfeited, in our sole discretion and with or without notice, and we may close the Account and cancel any points, without any liability, redemption, or compensation to the Member or any other party. You may close your Account at any time. When an Account is closed, whether by us or by you, the point balance is automatically canceled and reduced to zero.
 
Earning and Redeeming Points; Returns and Exchanges
 
You may earn points in your Account through purchases of eligible goods or services from the Website or a physical location where oVertone products or services are sold, provided that your Member Number is entered at the time of purchase. Points may be redeemed for eligible rewards. When enough points have been accumulated to obtain a reward, Members may redeem rewards through online or physical locations. Eligible rewards, redemption schedules, and other rewards information are displayed and updated on the Color Club Page from time to time.
 
We assume no liability to Members with respect to the addition or deletion of items from which points can be earned or for which points can be redeemed. We may change the products eligible to earn points, or the products eligible to be redeemed for points, at any time and without notice, in our sole discretion, without liability to you or any other party. We may advertise or make exclusive, limited-time offers to select Members to redeem points for select items or for other benefits or discounts.
 
If a Member returns or exchanges a product from a purchase that had earned points for the Member’s Account, then the same number of points will be deducted automatically from the Account when the Member returns or exchanges the product. If a Member returns or exchanges a product that was purchased through the redemption of points, no points will be added back to the Member’s Account upon any return or exchange of such product. Redemption of points is final, and all redeemed points are deemed forfeited after redemption.
 
No Cash Value or Transfers
 
Points in your Account have no cash value and are not exchangeable for cash. Points do not entitle a Member to any vested or unvested rights, and we do not guarantee in any way the continued availability of any reward, redemption level, rebate, or any other benefit. Participation in Color Club is a privilege that oVertone may revoke at any time, with or without notice or cause, and without liability to any Member or other party.
 
Unless expressly authorized by oVertone in advance and in writing, points cannot be assigned, exchanged, traded, bartered, purchased, given by gift, or otherwise sold or transferred, including, without limitation, by operation of law, inheritance, probate, or any other means. Any points so acquired are void. Upon the death of a Member, the Member’s Account is deemed closed and all points canceled.
 
Privacy and Communications
 
Through your participation in Color Club, you consent to our Privacy Policy and the collection and use of your Member Information and any other information you provide to us or we collect about you in connection with your use of Color Club. You also consent to receiving marketing or other communications about Color Club from us as part of your participation in Color Club. You may opt out of marketing communications by updating your Account preferences or following the unsubscribe link in the communications you receive from us. We may also send you administrative, maintenance, or other non-marketing communications related to your Account, and you may opt out of those communications by closing your Account.
 
Contact Us
 
To contact us with any questions or concerns about Color Club, please email us at hello@overtone.co.
 
Addendum To Terms of Use
 
oVertone® PRO Program
 
The oVertone PRO Program (“PRO”) is a product discount, wholesale pricing, and professional consulting program that we offer to certain salon professionals through various links and apps on the Website, such as www.oVertone.co/pages/pro (the “PRO Page”). PRO is governed by our
Terms of Use, this Addendum, and the PRO Page (collectively, the “PRO Terms”). PRO allows salon professionals who have completed the enrollment steps (“you”, a “PRO Member,” or simply a “Member”) to access product discounts, wholesale pricing, educational information, and support from our dedicated PRO consultants. 
 
In our sole discretion, we may restrict, suspend, amend, extend, or otherwise alter the PRO Terms at any time and without prior notice. If the PRO Terms have been updated, we will post the new PRO Terms on the Website and note the date that they were last updated. We encourage Members to review the PRO Terms each time they use PRO.
 
Membership Eligibility and Enrollment
 
Membership in PRO is free, and no initial purchase is required to become a Member. Only salon professionals, whether individuals or salon companies, are eligible for PRO, and we may post other eligibility restrictions from time to time. Salon professionals must be 18 years or older to become a Member. If a Member does not meet our eligibility requirements, then the PRO account may be suspended or closed. By enrolling in PRO, you represent and warrant that you meet the eligibility requirements.
 
To become a PRO Member, you must complete the enrollment process by indicating your acceptance of the PRO Terms and providing complete and accurate information in all of the required fields, such as name, email address, mailing address, phone number, username,password, etc. (collectively, “Member Information”). After completion of the enrollment process, you will receive a Member number (“Member Number”) that uniquely identifies your PRO account (“Account”). Only one Account is permitted per person.
 
Account Information
 
Please let us know immediately of any change to your Member Information. We are not responsible for any communications that you do not receive as a result of failing to update your Member Information.
 
You are responsible for maintaining the accuracy and confidentiality of your Member Information, and you agree to inform us of any changes to your Member Information. You agree not to use the Member Information of any third party or disclose your Member Information to any third party. You are responsible for all activity that occurs in your Account. If you suspect any unauthorized use of your Account, you must notify us immediately.
 
Account Misuse
 
If we determine in our sole discretion that a Member has abused any of the PRO privileges, failed to comply with any of the PRO Terms, or made any misrepresentation, then we may take such action as we deem appropriate, including, without limitation, suspending such Member’s PRO privileges, and canceling such Member’s Account, in each case, with or without advance notice to the Member and without liability to oVertone.
 
Inactive Accounts; Closing of Accounts
 
We may deem an Account inactive if no activity occurs in the Account for two years. Once an Account is deemed inactive, we may close the Account, without any liability or compensation to the Member or any other party. You may close your Account at any time.
 
Discounted Pricing; Consulting Support
 
You may purchase products eligible for PRO discounts through your online Account or at a physical location where wholesale or PRO pricing is available, provided that your Member Number is entered at the time of purchase. Products eligible for PRO discounts, wholesale pricing schedules, and other PRO information are displayed and updated on the PRO Page from time to time.
 
We assume no liability to Members with respect to the addition or deletion of items that are eligible for wholesale or PRO pricing. We may change the products eligible for PRO discounts at any time, and without notice, in our sole discretion, without liability to you or any other party. We may advertise or make exclusive, limited-time offers to select PRO Members for select items or for other benefits or discounts.Our PRO consultants may contact you from time to time to offer assistance and education related to our products and the benefits of being a PRO Member. You may also contact a PRO consultant at any time by emailing us at pro@overtone.co. The goal of our PRO consultants is to help you understand and take advantage of all of the benefits of oVertone products and of being a PRO Member.
 
No Cash Value or Transfers
 
Benefits that accrue in your Account have no cash value and are not exchangeable for cash. PRO Accounts do not entitle a Member to any vested or unvested rights, and we do not guarantee in any way the continued availability of any discount, rebate, or any other benefit. Participation in PRO is a privilege that oVertone may revoke at any time, with or without notice or cause, and without liability to any Member or other party.
 
Unless expressly authorized by oVertone in advance and in writing, neither your Account nor any benefits accruing in your Account may be assigned, exchanged, traded, bartered, purchased, given by gift, or otherwise sold or transferred, including, without limitation, by operation of law, inheritance, probate, or any other means. Any benefits so acquired are void. Upon the death of a Member (or the dissolution of an entity that is a Member), the Member’s Account is deemed closed and all points canceled.
 
Privacy and Communications
 
Through your participation in PRO, you consent to our Privacy Policy and the collection and use of your Member Information and any other information you provide to us or we collect about you in connection with your use of PRO. You also consent to receiving marketing or other communications about PRO from us as part of your participation in PRO. You may opt out of marketing communications by updating your Account preferences or following the unsubscribe link in the communications you receive from us. We may also send you administrative, maintenance, or other non-marketing communications related to your Account, and you may opt out of those communications by closing your Account.
 
Contact Us
 
To contact us with any questions or concerns about PRO, please email us at pro@overtone.co.