Philosophers Rewards Loyalty Program
Terms of Service
1. Acceptance of Terms
Coty, Inc. (“Coty”) owns and operates www.philosophy.com (the “Site”) that implements the Philosophy Rewards Loyalty Program (the “Program”). The Program, together with the content, incentives and rewards, offered via the Program, is collectively referred to herein as the “Service.” Sponsor may in its sole and absolute discretion cancel, change, suspend, or modify any aspect of the Service (including any Program, Rewards, and/or Points, all as defined below), including the availability of any Rewards, at any time without notice.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY MAY AFFECT YOUR LEGAL RIGHTS, INCLUDING HOW YOU MAY RESOLVE DISPUTES. PLEASE NOTE THAT THESE TERMS MAY REQUIRE YOU TO SUBMIT DISPUTES TO ARBITRATION. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 20.
The following are the current terms and conditions for use of the Program. Except certain aspects of the Service that may be available to Public Users, the Service is provided only to users who become Members (as such terms are defined below). The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein (“Terms of Service”). The Terms of Service shall be deemed to include all other operating rules, policies and procedures that are referred to herein or that may otherwise be published at the Program by Coty from time to time (collectively, “Policies”), including without limitation, Policies that may be published in respect of:
- Purchase Policy
AVAILABLE AT http://www.philosophy.com/privacy-policy.html,
Coty reserves the right, at its sole discretion, to modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Coty will use reasonable efforts to notify Users of any material change at least 30 days in advance of the effective date of any change. Change notices may be communicated by postings in the Program or, in the case of Members, electronic mail. In any case, Users should periodically check the Terms of Service for changes. Continued use of the Service, participation in the Program and/or redemption of Points following such notice of any change to the Terms of Service constitutes User's acceptance of those changes. The Terms of Service may not otherwise be amended, except by a written agreement executed by User and Coty.
Coty may terminate the Service, in whole or in part, at any time.
You must be at least 18 years of age and a legal resident of the fifty (50) United States or District of Columbia to visit the Program and use the Service. If you do not so qualify, you are prohibited from accessing, using and registering for the Service. Coty will not collect personally identifiable information from any person that is actually known to Coty to be a child under the age of 13. Affiliates of Company in other jurisdictions may also have similar customer programs. Membership in the Program does not confer any rights or benefits in the program of any other Company affiliates.
Employees, officers, directors, agents and representatives of Coty are eligible to be Members but may be excluded from certain promotions, experiences, and other Rewards. You cannot participate in the Program if it would violate your employer’s policies or terms and conditions. The Program is provided to individuals only. Corporations, associations or other groups may not participate in the Program. It is fraudulent for any individual or company, association, or group to direct, encourage, or allow individuals to use a single Rewards account for the purpose of accumulating points for combined use.
Please note that the above eligibility criteria are subject to change, so if you are currently not eligible to participate in the Program, please check back with us frequently to see if the Program has become available to you. The term Users includes all registered and unregistered users that access or use the Program or Service. Each User that properly completes the registration process shall be considered a Member for the purposes of the Terms of Service. Users that do not complete the registration process, or whose registration is not accepted, shall be considered Public Users. Public Users have limited access to the Service, if at all. As applicable to these Terms of Service, “User,” “Public User,” “Member” or “You” means any person accessing or using the Service, Program and/or Site.
To become a Member, each User must complete the registration process by providing Coty with current, complete and accurate information, as more specifically required by the then current registration procedures as set forth on http://www.philosophy.com/philosophers-rewards-landing.html. No purchase is necessary to obtain membership in the Program. By way of illustration and not limitation: prospective Members may be required to provide their name, date of birth and zip code, username, password, legitimate electronic mail address and certain additional information (such as, for example, preferred contact method and products and services of interest); in order to obtain certain aspects of the Service, Members may also elect to provide access information related to their accounts at social networking sites (such as, for example, Twitter, Facebook, and Instagram); and in order to obtain certain Services applicable to the Program (as further described below), Members may be required to provide mobile telephone account information. Members shall maintain and update their registration data from time to time, to ensure that it is always current, complete and accurate. Coty may refuse to accept any User's application to register as a Member, in its sole discretion. Members are entitled to only one Member account. Existing Users who apply to become Members must update their current account with their Program registration details and follow the instructions to opt-in to the Program.
Upon acceptance, Coty will provide access credentials to the Member. Each Member is solely responsible for maintaining the confidentiality of its access credentials and other account information, and will be solely liable for any and all activities under its account. Member shall be responsible for keeping all account information up-to-date. Member agrees to notify Coty immediately of any unauthorized use of Member's account or any other breach of security.
6. Rewards Program
The Program allows Members to accumulate and redeem loyalty rewards points (“Points”), on an individual basis and solely for their own account. The Program may be structured to offer certain benefits based on the Member's current balance of "redeemable" Points (that is, Points that have not previously been redeemed) or "lifetime" Points (that is, all prior Points accumulated by Member, whether previously redeemed or not). Company reserves the right to suspend, terminate, revalue or modify, without liability, or notice to Members, all or part of the Points value structure and offers and any merchandise or service. Company reserves the rights to adjudicate all Points discrepancies in its sole discretion, and Members agree to abide with any such adjudication.
Members may earn Points in the U.S., online at the Site by making qualifying purchases or taking certain actions (such as, for example: by engaging in certain specified activities like visiting or watching videos; by engaging in certain specified activities related to social networks, and engaging in activities at Company-designated Participating Locations, all as determined in Company’s discretion), as further set forth at http://www.philosophy.com/philosophers-rewards-landing.html.
Company may also, at its sole and absolute discretion, award “bonus” Points for certain actions (such as early enrollment or frequent activity). Additional rules and restrictions may apply to such bonus point promotions. In particular, Company shall award “bonus” Points for early enrollment at a rate to be determined by Company in its sole discretion, which will be credited to your account on the following schedule contingent on the date of your sign-up:
Early enrollment between March 6th and April 8th, with prior qualifying purchase: Points will be credited to your account by April 15th.
Early enrollment between March 6th and April 8th with subsequent qualifying purchase: Points shall be credited upon shipment of your qualifying order as set forth below.
Once you register for the Program, if you do not make a purchase to earn points within your Coty Rewards account within twelve (12) months of the date Company last received notification that you made a purchase, Coty shall expire your accrued but unused redeemable points on or after the last day of such twelve (12) month inactive period. Coty may, at its discretion, send you periodic notifications to remind you that your redeemable points will expire upon the 12th month of inactivity. However, it is your responsibility to monitor your Program account and points status. Please note that earning points for monthly Twitter or Instagram followership, or other non-purchase related activities, will not deem you as active. If you have questions regarding the date of your last Points activity or your last purchase, you may call 1-800-568-3151. From time to time, Coty may offer benefits or privileges to Members in exchange for redemption of a specified number of Member's Points (“Rewards”). For clarity, Points may only be redeemed for a Reward at the time of a separate qualifying purchase transaction. The nature of those Rewards, and the number of Points required to obtain such benefits or privileges, shall be established by Coty in its sole discretion, may change at any time or from time to time, may be available for limited times, and are subject to change. Further, you expressly agree that Company shall not be responsible for the loss of any Points or Rewards you earn through the Program, regardless of monetary value, in the event there is any catastrophic data or server error, criminal act, vandalism, cyber-attack or other events which make it impossible for Company to determine the Points totals for any account or accounts.
Company may, in its discretion, allow Points to be earned for other items or merchandise or in Company retail stores or other locations (“Participating Locations”). For more information about Participating Locations, visit http://www.philosophy.com/philosophers-rewards-landing.html or contact Company at 1-800-568-3151. To redeem Points at a Participating Location, Members may be required to present valid identification from which the Member’s account information can be determined by the store associate prior to the time of purchase transaction.
Company believes in full transparency and in full, fair and effective disclosures of material facts relating to Member’s relationship with Company. Company requires that all Members abide by the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”). Per the FTC Endorsement Guides, Member should disclose Member’s connection to Company when speaking favorably about or otherwise promoting the Program.
Member further acknowledges and agrees that:
- Points have no "real world" or cash value.
- Points have no purpose or use except in exchange for Rewards (if any) offered by Coty via the Service.
- Any items, benefits or privileges received as a result of a redemption of Points may not be exchanged or returned for cash or credit.
- Redemption offers may be time-limited or available only in limited quantities.
- Points may only be used at the Program to which they apply and, therefore, cannot be redeemed at or transferred to Member's account at any other Program.
- Members will not be able to redeem Points for a Reward if Member has insufficient Points for such Reward.
- Points earned for a purchase that is then the subject of a return, refund, returned check due to non-sufficient funds, or other credit will be (i) deducted from the Member's account in an amount equal to the points earned for the original transaction, including bonus points or (ii) not posted to the Member’s account, as applicable.
- Member's Points cannot be redeemed by, or sold or assigned otherwise transferred to, any other Member of this Program.
- Upon termination of Member's registration for any reason, all Points are lost, to the extent permitted by law, regardless of how they were acquired by Member.
- Coty's ability to accurately credit Points to Member's account based on Member's activities at social networking sites may be restricted by the terms, conditions or functions of such sites.
- Points are not valid unless earned in strict compliance with the requirements as established and intended by Coty, and Member shall not attempt to earn Points by any means (including without limitation, by using any script, bot or other automated means) that only simulates compliance with the applicable requirements.
- Coty's good faith determination of the amount of Points available to any Member hereunder shall be final and binding.
- Points will be posted and credited to your account when your applicable qualifying order ships. Until points are credited to your account, your points will show as “pending” in your account.
PROGRAM TIERS, REWARDS AND POINTS REDEMPTION LEVELS, AND SPECIAL OFFERS: The current Program tiers, Rewards and Points Redemption Levels, and Special Offers (and any additional terms and conditions) are available at http://www.philosophy.com/philosophers-rewards-landing.html
All matters concerning the Program Rewards, including but not limited to warranties, guarantees, and maintenance and delivery (if not delivered by Company), are solely between the Member and the entity supplying the Reward. Company makes no warranties or representations whatsoever with regard to any goods or services provided by the entity supplying the Program Reward, if not Company.
Except as expressly provided otherwise in the Terms of Service, Coty and each Member or other User is solely responsible for all of its costs and expenses related to the Service.
Coty determines whether (and how much) Users will be charged to access the Program and use the Service. In the case of any Program and Service that are initially made available without charge, Coty may later decide to charge for accessing or using some or all of the features of the Program and Service. In the case of any Program or Service where a subscription or other fee is charged, Coty may later decide to change the price of that fee. Users will be notified of fee changes in accordance with Section 2. User hereby agrees to pay all applicable fees for Program and Services that are identified as fee-bearing, in the amounts, at the times and subject to the other payment terms specified by Coty.
The Program may include may include discussion forums or other features, where Members may upload, display or transmit user generated content and other information of interest to those Members, including without limitation messages, information, and any other content that Members post, upload, submit, distribute, publish or display on or through the Program or with other users of the Program (””User Content”). Members are solely responsible for their User Content and will be solely responsible for any damage or loss to such Members or any other party resulting therefrom. User Content that is posted via the Program will not be treated as confidential. Company has the right, but not the obligation, to monitor and decline, edit, or remove (without notice) all or any portion of any User Content for any reason or no reason.
Because Coty does not review the substance of Member postings on the Program or other communications via the Service, every Member must be careful in dealing with other Members to avoid fraud. Member acknowledges that information provided by other Members may, despite the prohibitions set forth in the Terms of Service, be harmful, inaccurate or deceptive. Authentication of the true identity of Internet users is difficult, and so Coty cannot and does not confirm that each Member is the person who they claim to be. Further, the Program websites may contain links to third-party websites. The linked websites are not under our control, and we are not responsible for the contents of any linked website. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked website. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
Coty is not involved in Member-to-Member dealings and, therefore, each Member agrees, in connection with any use of the Service and/or any other participation in the Program: (a) to release and hold harmless Coty and their respective parents, affiliates, subsidiaries, employees, contractors, officers, directors, members, partners and representatives from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, including without limitation property damage, personal injury and/or death arising out of or in any way connected with use of the Service (including any disputes with other Members using the Service and including the use of any Rewards); and (b) to attempt to settle any disputes directly with such other Member or other third party.
9. User Rules and Conduct
The Service is provided to Users only for their personal, noncommercial use. Any unauthorized use of the Service (including without limitation, accessing the Program or other aspect of the Service for which the User is not authorized, or any commercial use not expressly permitted in the Terms of Service, such as, for example, reselling any content or information to third parties) is expressly prohibited. Each Member is solely responsible for all acts or omissions that occur under its account, username or password, including User Content posted to or transmitted via the Service.
As a condition of use, each User hereby promises that it will not use the Service for any purpose that is unlawful, commercial in nature (such as, for example, raising money for anyone, advertising or promoting any product, service, pyramid scheme or other venture) or prohibited by the Terms of Service or any Other Agreement, or any other purpose not reasonably intended by Coty. User agrees to abide by all applicable local, state, national and international laws, regulations and rules. Without limiting the foregoing, Members shall not use the Service for the purpose of money laundering, bid rigging, price fixing or other unlawful collusion, price signaling or exchange of competitively sensitive data or information.
By way of example, and not limitation, each User agrees not to (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any User Content (including text, communications, software, photographs, videos, sound recordings, data or other information) using any communications service, discussion forum, directory, survey, feedback or other service available on or through the Service, in any manner, that:
- is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another's privacy, tortious, obscene, profane or which otherwise violates the Terms of Service or any Other Agreement;
- infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any party;
- reveals any personal information about another individual, including another person's name, address, phone number, electronic mail address, credit card information or any other information that could be used to track, contact or impersonate that person;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming"), chain letters or any form of lottery or gambling;
- imposes an unreasonable or disproportionately large load on Coty's computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Coty or any third party;
- creates Member accounts by any automated means or under false or misleading pretenses;
- harvests, scrapes or collects any information from the Program;
- disguises the source of User Content posted by User; or
- impersonates any person or entity, including any employee or representative of Coty, or other Program Affiliate.
Coty may, at its sole discretion, immediately suspend or terminate any User's access to the Service should their conduct fail (or appear to fail) to strictly conform to any provision of this section.
Coty has no obligation to monitor the Service or any User’s use thereof. However, Coty reserves the right at any time and without notice to monitor, review, retain or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including law enforcement).
Coty has no obligation to pre-screen, authenticate, validate, monitor, moderate or edit any User Content. However, Coty and its agents have the right, at their sole discretion, to remove at any time any User Content that, in Coty's judgment, does not comply with the Terms of Service or any Other Agreement or otherwise appears harmful, objectionable or inaccurate. Coty is not responsible for any failure or delay in removing any such content.
User shall not post any confidential content or other proprietary information that it desires to or is under obligation to keep secret.
11. Third Party Sites
The Service may permit Users to access the Program from and to link from the Program to other websites on the Internet, including without limitation, the website affiliated with Coty and their partners. These other websites are not under Coty's control, and User acknowledges and agrees that Coty is not responsible for the accuracy, legality, appropriateness or any other aspect of the content or function of such websites. The inclusion of any such link does not imply endorsement of the website by Coty or any association with its operators. Additional or different terms and conditions may apply when Users are accessing and using such other websites.
12. Participation in Promotions of Affiliates
Any dealings by Users with advertisers, vendors and other third parties (collectively, “Program Affiliates”) via the Service, or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between the User and Program Affiliate or other third party. Coty is not responsible or liable for any part of any such dealings or promotions.
13. Proprietary Rights
User acknowledges and agrees that the Program, Service and all content and materials created by or for Coty and made available on the Program are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Coty (and its licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Coty, each User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of the Program, Service or such content and materials. However, unless the Service otherwise restricts the Member from doing so, Member may print or download a reasonable number of copies of the materials or content from the Program for the Member's personal, noncommercial purposes; provided, that Member retains all copyright and other proprietary notices contained therein. Systematic retrieval of data or other content from the Program by any User to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Coty's express prior written permission.
If User desires to make any use of any Program content for any purpose other than personal, noncommercial reference, then User shall first secure permission from the owner of that content.
Reproducing, copying or distributing any content, materials or design elements from the Program for any other purpose is strictly prohibited without Coty's express prior written permission. Attempting to access or use the Program, Service, content or materials for any purpose not expressly permitted in the Terms of Service is prohibited.
14. License to Coty
By uploading, posting, submitting or otherwise distributing User Content of any kind to the Program, each User hereby:
- grants and agrees to grant to Coty and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, non-exclusive, royalty-free right and license (with right to sublicense) to use, reproduce, publicly display, publicly perform, adapt, collect, modify, delete from, distribute, transmit, promote and make derivative works of the User Content, in any form, in any media now known or later developed worldwide for any purpose including the purposes of offering, providing, marketing and promoting the Program and Service (including without limitation, being exported under content sharing arrangements with other websites); and
- represents and warrants that all User Content includes appropriate attribution to the copyright owner; and
- waives all moral rights in the User Content which may be available to such User in any part of the world and confirms that no such rights have been asserted;
- represents and warrants to Coty that User owns or otherwise controls all rights to such User Content and that public disclosure and use of the User Content by Coty (including without limitation, publishing content at the Program) will not infringe or violate the rights of any third party; and
- acknowledges and agrees that the User Content is intended to and will be made available to, and used by Coty and other Users, and that Company is free to user the User Content and implement any suggestions contained therein, if Company so desires, as provided or as modified by Company, without obtaining permission or license from any third party and without any further permission from User or compensation to User.
User agrees that he or she will not contribute any User Content unless User has all of the rights (including rights from the copyright owner) necessary to grant Coty the use license, and to satisfy all of the warranty requirements, described above.
Notwithstanding the foregoing, the Service may provide each User with the ability to remove some or all of the User Content posted to the Program by such User. Following any such removal, Coty will use commercially reasonable efforts to discontinue any further display, performance and distribution of such User Content by Coty at the Program; provided, however, User acknowledges and agrees that Coty may continue using such User Content in the same manner and for the same purposes as it did prior to removal of such content (such as, for example, content used in any advertising created prior to removal) and that Coty shall have no responsibility or liability in respect of any content that has been exported by Coty or shared with other Users via the Service or that has been downloaded or copied by Users to other websites, systems and devices.
Coty may terminate any User's access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately. Further, Company reserves the right at its sole discretion to prohibit any Member from participating in any aspect of the Program if Company deems or suspects that such Member has engaged in or has attempted to engage in any of the following: (a) acting in violation of these Terms of Service; or (b) damaging, tampering with or corrupting the operation of the Program or Site; or (c) acting with intent to annoy, harass or abuse any other person; or (d) any inappropriate, uncooperative, disruptive, fraudulent, potentially fraudulent, or unusual behavior or activity; or (e) activity deemed in the sole discretion of Company to be generally inconsistent with the intended operation of the Program. Any decision Company makes relating to termination or suspension of any Member’s participation in the Program shall be final and binding in all respects. Company shall be the sole determiner in cases of suspected abuse, fraud, or breach of these Terms and Conditions or intent of these Terms and Conditions.
If Member wishes to terminate its registration and account, Member may do so at any time by sending an email to
email@example.com that includes Member's electronic mail address and specifies which account the termination applies.
Upon any termination, all rights and obligations of the parties shall cease and User shall immediately cease using the Service, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of the Terms of Service shall survive and (b) the provisions of Sections 12 – 23 shall survive. After termination, Coty has no obligation to maintain any content in Member's account (including without limitation, records regarding Member's Points, which will be irrevocably forfeited) or to forward any unread or unsent messages to Member or any other User or third party.
16. CONDITIONS; Disclaimer of All Warranties
The Program and/or any Rewards are void where prohibited by law. If a Reward becomes unavailable, Company may substitute a benefit of equal or greater value. Program Rewards are not redeemable for cash. Program Rewards may be taxable, depending on the value of the item and the federal, state, and local tax laws applicable to Member. Members are solely responsible for reporting such items on their tax returns and paying any associated tax liability and Company shall not withhold or pay any amounts for federal, state or municipal income tax, social security, unemployment or worker’s compensation. Members may not assign or transfer any Program Rewards.
THE PROGRAM, REWARDS AND SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE PROGRAM, REWARDS AND SERVICE ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COTY AND THEIR RESPECTIVE AFFILIATES, CONTRACTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, PARTNERS, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED. USER’S USE OF THE SERVICE IS SOLELY AT ITS OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USERS FROM CLIENT OR THROUGH THE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. CLIENT SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS WHETER SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND CLIENT’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC, OR COMMUNICATIONS FAILURE OR DEGRADATION.
limitation of liability
To the fullest extent permitted by applicable law, User agrees that Coty shall not be responsible or liable for any unauthorized access to, alteration or use of User's account, transmissions or data, any material or data sent or received or not sent or received through the Service. User agrees that neither Coty is responsible or liable for any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any third party or any infringement of another's rights, including intellectual property rights.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Coty OR ANY OF THEIR RESPECTIVE AFFILIATES, CONTRACTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, PARTNERS, LICENSORS AND SUPPLIERS BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE PROGRAM OR SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS PAID TO COTY BY USER (AND RETAINED BY COTY HEREUNDER DURING THE PREVIOUS 12-MONTH PERIOD) OR US$50.00, WHICHEVER IS GREATER, EVEN IF COTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
User agrees to (a) defend Coty and their respective employees, contractors, officers, directors, members, partners and representatives against any action or suit by a third party that arises out of any transaction with other Program Affiliate or other Member in which User is involved, User’s use or misuse of the Service, User Content, User’s breach of any applicable law or User’s breach of any of its representations, warranties, covenants or other obligations under the Terms of Service and (b) indemnify Coty for any settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such a claim. Coty as applicable, reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will assist and cooperate with Coty in asserting any available defenses.
19. International Use
Coty makes no representation that the Service is appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. Users that access the Service from other locations do so at their own initiative and are responsible for compliance with local laws.
A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. User and Coty agree that any claim or cause of action arising out of or related to the Service must commence within one (1) year after the claim or cause of action arose; otherwise, such cause of action is permanently barred.
The Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service. User expressly agrees that the exclusive jurisdiction for any claim or action arising out of or relating to the Terms of Service or use of the Program or Service shall be filed only in the state or federal courts located in New York, New York, USA, and User further agrees and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.
BINDING INDIVIDUAL ARBITRATION
Purpose. The term "Dispute" means any dispute, claim, or controversy between you and Coty or Partner Affiliate regarding the use of the Service, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 20 (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced. If you have a Dispute with Coty or Partner Affiliate or any of their officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below. Other than those matters listed in the Exclusions from Arbitration clause, you and the party that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 20, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND THE ENTITY AGREE THAT ANY CLAIM FILED BY YOU OR BY COTY OR PARTNER AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 20.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 20, YOU MUST NOTIFY COTY IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO Coty Legal Department, 350 Fifth Avenue, New York City, New York, ATTN: GENERAL COUNSEL, LEGAL DEPARTMENT / ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR COTY FIRST PARTY SERVICES ONLINE ID, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY Coty OR PARTNER AFFILIATE THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY Coty OR PARTNER AFFILIATE YOU MUST SEND WRITTEN NOTICE TO Coty Legal Department, 350 Fifth Avenue, New York City, New York, TO GIVE COTY THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If Coty or Partner Affiliate you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or Coty or Partner Affiliate you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section 20.
Class Action Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND Coty or Partner Affiliate WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Coty or Partner Affiliate you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association ("AAA"), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 20 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by Coty or Partner Affiliate with which you have a Dispute with concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA's Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with Coty or Partner Affiliate you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Coty or Partner Affiliate you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, excerpt for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or Coty or Partner Affiliate you have a Dispute with may initiate arbitration in the State of New York, or the United States county in which you reside. In the event that you select the county of your United States residence, Coty or Partner Affiliate you have a Dispute with may transfer the arbitration to the State of New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
21. Integration and Severability
The Terms of Service (including the Policies, and together with any Other Agreements) are the entire agreement between User and Coty with respect to the Service and use of the Program, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between User and Coty with respect to the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.
22. General Provisions
User's rights and obligations under the Terms of Service are personal to User, and are not assignable, transferable or subject to sublicense by User except with Coty's prior written consent. Coty may assign, transfer or delegate any of its rights and obligations hereunder without consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. Member shall not receive nor be entitled to a salary or any other benefits or privileges Company provides to its employees. Company and Member agree that: (i) Member will be treated as an independent contractor with respect to Member’s role under this Agreement for all purposes, including, federal, state, and local tax purposes and for all other purposes and Company will not withhold or pay over on behalf of Member any amounts relating to federal, state or local income taxes, unemployment compensation, workers compensation, social security or other taxes or assessments; (ii) Member will never be asked to perform tasks, duties, or otherwise which will render Member’s services to be that of an employee; (iii) Member will not be provided great detail or strict guidelines about how to participate in Program but will rely on Member’s own expertise; (iv) Member may perform tasks at Member’s own discretion on Member’s own schedule, and Member may elect the hours (if any) during which Member puts effort against the tasks; and (v) Company has no right to exercise any control whatsoever on Member’s daily activities.
All notices under the Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
23. Copyright and Trademark Notices
The Terms of Service and all content provided by Coty are copyright © 2018 Coty, Inc. and/or its licensors or suppliers.
Coty is the trademark of Coty. The names and logos used in connection with the Program are the trademarks of their respective owners.
Any rights not expressly granted herein are reserved.
24. Procedure for Claims of Copyright Infringement
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright
infringement should be made according to the instructions provided at
http://www.philosophy.com/terms-of-use.html under “Claims of Copyright Infringement”
(the Copyright Policy).
500 American Road,
Morris Plains, NJ 07950
Attn: Customer Development Center