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Welcome to the web site (the “Site”) of One by Kosé (also referred to as “we”, “our” or “us”), distributed by KOSÉ America, Inc. By accessing and/or using the Site, you (as a user of the Site) agree to follow and be bound by the terms and conditions set forth below as well as our Privacy Policy/Your California Privacy Rights ("Privacy Policy" and collectively, the “Terms of Use”). Please read these Terms of Use, including its Privacy Policy, carefully. If you do not accept the Terms of Use, we do not permit your use of and access to our Site. These Terms of Use may have changed since the last time you visited our Site. Any breach by you of any of the Terms of Use will automatically terminate this agreement and your permission from One by Kosé to access and use the Site and/or the Content (defined below).

1. AUTHORIZED USES

The Site and all text, graphics, information and other content displayed on the Site (the “Content”) shall only be used by you in connection with your direct personal use of the Site as permitted by these Terms of Use. Your use of the Site and/or access to the Content is also subject to the following restrictions and conditions:

A. You may use the Site only for informational purposes or for purchasing any products that we offer for sale on the Site.

B. You may not send unsolicited commercial email to any email addresses provided on the Site. In addition, spam, chain emails, advertising solicitations and similar email solicitations by you are expressly prohibited.

C. You may not redistribute, retransmit, republish, copy, duplicate, download or otherwise use or exploit any Content on the Site except for purposes permitted by these Terms of Use.

D. You may not use the Site or the Content in any manner inconsistent with or in violation of any applicable laws or regulations.

E. You may not delete, modify or attempt to change or alter any of the Content on the Site.

F. You may not use any device, software or routine that interferes with the proper functioning of the Site or take any other action that interferes with other parties’ use of the Site.

G. You may not use any “robot”, “spider”, “scraper” or other automatic or manual device or process to compile information on the Site for any purpose other than for a generally available search engine.

H. You may not, without express written authority from One by Kosé, provide access to the Site through any hyperlink or other link from any other web site nor may you frame the Site within or as a portion of any other web site or page.

I. You may not use the Site to post or transmit any harmful, unlawful, threatening, offensive, libelous, defamatory, obscene, abusive, pornographic or otherwise objectionable material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or would otherwise violate the law.

J. Any information sent to One by Kosé via email is not secure and is sent on a non-confidential basis and will be handled by us in accordance with our Privacy Policy.

 

2. DISCLAIMER OF WARRANTIES; “AS IS”

The site and all content, materials, information and services provided on the site, are provided on an “as is” and “as available” basis. One by Kosé expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, non-infringement, and security and accuracy, as well as all warranties arising by usage of trade, course of dealing, or course of performance. One by Kosé makes no warranty, and expressly disclaims any obligation, that: (a) the site will meet your requirements or will be available on an uninterrupted, timely, secure, or error-free basis; (b) the content will be up-to-date, complete, comprehensive, accurate or applicable to your circumstances; (c) the results that may be obtained from the use of the site or any services offered through the site will be accurate or reliable; or (d) the quality of any content, services, information, or other material obtained by you through the site will meet your expectations.

 

3. LIMITATION OF LIABILITY

In no event shall One by Kosé be liable for any direct, indirect, incidental, special, punitive, or consequential damages, or damages for loss of profits, revenue, data or use, incurred by you or any third party, whether in an action in contract or tort, arising from your access to or inability to access, or use of, the site or any content, materials, information or services provided through or in connection with the site, even if One by Kosé was advised that such damages were likely or possible and/or even if any remedy available to you fails of its essential purpose. This limitation on liability applies to, but is not limited to, the transmission of any disabling device or viruses which may infect your equipment or system, failure of mechanical or electronic equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, bodily injury, property damage, operator errors, strikes or other labor problems or anyforce majeure. Some jurisdictions do not allow certain limitations or exclusions of liability in some circumstances. Accordingly, some of the foregoing limitations may not apply to you.

 

4. PRIVACY

One by Kosé will treat any information we collect from you or which you submit to us in accordance with our Privacy Policy.

 

5. CHILDREN

This Site is not intended for children under the age of thirteen. For more information on the protection of children’s personal information, see our Privacy Policy.

 

6. THIRD PARTY CONTENT

The Site may from time to time display the content, services, products or hyperlinks of other companies or persons. Notwithstanding the presentation of any third party information on the Site, no such presentation shall be considered an endorsement, representation or warranty, either express or implied, by One by Kosé on behalf of any third party. In addition, One by Kosé does not endorse, warrant or otherwise guarantee the substance of any information or services provided by third parties. One by Kosé shall have no liability or responsibility whatsoever for the content, subject matter or substance of any information accessed or obtained from third party web sites accessed from the Site or web sites that have links to the Site. Access to third party web sites from the Site is established at your own risk.

 

7. INTELLECTUAL PROPERTY RIGHTS

The Site (including the “look and feel” of the Site) and all Content are the property of One by Kosé, or of third parties as indicated, and is protected by U.S. copyright laws and international treaties. All product names, names of services, trademarks and service marks (“Marks”) are the property of One by Kosé, or the property of their respective owners, as indicated. You may not use the Marks for any purpose whatsoever other than as permitted by these Terms of Use.

 

8. COPYRIGHT INFRINGEMENT

In accordance with the Digital Millennium Copyright Act (“DMCA”), One by Kosé has designated an agent to receive notifications of alleged copyright infringement associated with the Site. One by Kosé will, upon receiving proper notice as set forth below, use commercially reasonable efforts to remove or disable access to any such material as set forth in the DMCA. If you believe that your copyrighted work or the copyrighted work of another party is being infringed, please notify our copyright agent. If material is believed in good faith by One by Kosé to infringe a copyright or otherwise violate any intellectual property rights, One by Kosé will remove or disable access to any such material.

 

9. INDEMNIFICATION

You agree to indemnify and hold harmless One by Kosé from and against any and all liability, claims, causes of actions, damages, losses, costs and expenses, including but not limited to, attorneys’ fees, costs of suit, costs of investigation and costs of enforcement of this provision arising out of your breach of these Terms of Use.

 

10. GENERAL

The information on the Site (including without limitation product descriptions, pricing and availability) may contain typographical errors or inaccuracies and may not be complete or current. One by Kosé reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice to you.

One by Kosé may modify these Terms of Use from time to time and at any time, such modifications to take effect immediately upon the posting thereof on the Site. The terms of this Agreement are severable to the extent any term is deemed invalid, illegal, or unenforceable. The failure of One by Kosé to enforce any term or condition of these Terms of Use shall not be deemed a waiver thereof and shall not prevent its later enforcement.

These Terms of Use are governed by the laws of the State of New York, without respect to its conflict of laws principles. Jurisdiction for any claims arising under these Terms of Use shall lie exclusively with the state and federal courts located within New York, New York, except that, to the extent that you have or are threatening to violate, infringe or otherwise misappropriate any intellectual property rights of One by Kosé (or the intellectual property rights of any third parties made available on this Site), One by Kosé may also seek injunctive or other appropriate relief in any other jurisdiction and venue permitted by law. You expressly consent to service of process in any action relating hereto by registered mail or by any other means provided by law. If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.

 

11. INFORMATION FOR CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:

Pricing - Current prices for the products available on the Site may be obtained by going to the pricing schedules for each product. We reserve the right to change the prices at any time. Purchases are subject to the provisions contained in the “Customer Service” area of this site, including the Terms of Sale.

Complaints - The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, California 95814, or by telephone at 1-800-952-5210.

 

12. CONDITIONS OF SALE

In addition to the conditions as set forth in the accompanying Customer Service section, all sales made pursuant to this website are subject to the following further limitations:

Modifications To Service

One by Kosé reserves the right to modify or discontinue all or part of the Service, temporarily or permanently, with or without notice to you, and is not obligated to support or update the Service. You acknowledge and agree that One by Kosé shall not be liable to you or any third party in the event that One by Kosé exercises its right to modify or discontinue all or part of the Service.

Order Acceptance

You may place orders for One by Kosé Products and Services via the Service. Your receipt of an electronic or other form of order confirmation does not constitute One by Kosé's acceptance of your order, nor does it constitute confirmation of One by Kosé's offer to sell you the particular One by Kosé Product or Service. One by Kosé reserves the right at any time after receipt of your order to accept, decline, or limit your order for any reason. Your credit card will not be charged until One by Kosé has accepted your order and prepared your order for shipment or for download. We may require additional verifications or information before accepting any order. Price and availability of One by Kosé and Services offered on the Site are subject to change without prior notice. To the extent we provide information on the availability of any One by Kosé Products, such information may be subject to further verification by you. One by Kosé will not be liable for any lack of availability of One by Kosé Products you may order.

Security

The purchase area of the Service is designed to be secure. However, if you experience fraudulent use of your credit card as a result of shopping the One by Kosé website, notify One by Kosé and your credit card company in accordance with its reporting rules and procedures. In no event shall One by Kosé be liable or responsible in any way for the fraudulent use of your credit card.

Prices

Unless otherwise expressly indicated in writing by One by Kosé, prices for all One by Kosé Products are as noted on One by Kosé's Site as in effect on date your order is placed. Unless otherwise indicated on One by Kosé’s acknowledgment and/or invoice, Buyer shall pay, and be exclusively liable for, all costs of shipping, delivery, insurance and the like after One by Kosé has effected delivery of the products to the U.S. postal Service or other carrier. All prices are in United States dollars.

Taxes

Prices do not include any tax or other governmental charge or assessment on the sale, shipment, production or use of any products sold to Buyer hereunder. Such taxes and charges, when applicable, may appear as separate additional charges on One by Kosé’s acknowledgment and/or invoice. Buyer shall be solely responsible for, and shall pay to One by Kosé upon demand, any such tax, charge or assessment, unless Buyer has furnished to One by Kosé an appropriate valid certificate of exemption issued by or acceptable to the tax authority in question.

Delivery

One by Kosé shall make every reasonable effort to effect shipment on or before the scheduled shipping date(s) reflected on One by Kosé acknowledgment and/or invoice, but such schedule may vary due to, among other things, conditions beyond One by Kosé’s reasonable control, including, but not limited to One by Kosé receipt of all materials and information to be supplied by Buyer. If no shipping date is specified, shipment will be made on date(s) selected by One by Kosé. In no event shall One by Kosé be liable for any damages or penalties for delay in delivery or for failure to give notice of delay.

Title

Title to all One by Kosé Products sold by One by Kosé to Buyer shall pass from One by Kosé to Buyer when such One by Kosé Products are delivered by One by Kosé to the carrier for shipment to Buyer.

Inspection by Buyer

Buyer shall carefully inspect all deliveries of One by Kosé as they are received by Buyer and report to One by Kosé promptly (but in any event within thirty (30) calendar days after receipt of shipment) any alleged error, shortage, defect or nonconformity of such products. Any failure by Buyer to so inspect and report shall constitute a waiver by Buyer of any claim or right of Buyer against One by Kosé arising out of or related to any such error, shortage, defect or nonconformity that was reasonably discoverable by such an inspection.

Limited Warranty

It is the sole and exclusive responsibility of Buyer to determine the suitability of any and all One by Kosé Products for Buyer’s intended purposes and uses. One by Kosé warrants that the One by Kosé Products sold hereunder will be free from defects in material and workmanship for a period of thirty (30) days from the date of shipment. If you discover a defect covered by this warranty, we will replace the One by Kosé Product at our option, provided that One by Kosé shall not have any liability whatsoever for any damage to or defect in One by Kosé Products resulting directly or indirectly from events occurring after the delivery of such products to the U.S. postal Services and/or carrier by One by Kosé. This limited warranty does not cover damage caused by abuse, misuse, accident, modification or repair by any person other than One by Kosé, moisture, extreme heat or cold, or corrosive environments. The limited warranty does not cover any One by Kosé Product with an altered or defaced serial number. THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY ONE BY KOSÉ WITH RESPECT TO ONE BY KOSÉ PRODUCTS. ANY IMPLIED WARRANTY ARISING UNDER APPLICABLE LAW IN CONNECTION WITH THE SALE OR USE OF PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, IS LIMITED IN DURATION TO THE 30 DAY TERM OF THE EXPRESS LIMITED WARRANTY ABOVE. NO REPRESENTATIVE OF ONE BY KOSÉ IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS WARRANTY IN ANY WAY EXCEPT IN A WRITTEN AMENDMENT OF THESE TERMS OF SALE SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF ONE BY KOSÉ WHICH MAKES SPECIFIC REFERENCE TO THESE TERMS OF SALE. Limitation on ONE BY KOSÉ’s Liability. ONE BY KOSÉ’S LIABILITY IS LIMITED SOLELY TO THE REPAIR OR REPLACEMENT OF DEFECTIVE ONE BY KOSÉ PRODUCTS OR COMPONENTS. THIS LIMITED WARRANTY SHALL NOT IN ANY EVENT BE DEEMED TO INCLUDE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ONE BY KOSÉ FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH ONE BY KOSÉ PRODUCTS, OR THEIR SALE OR USE, INCLUDING BUT NOT LIMITED TO, DAMAGE TO OR LOSS OF ANY PROPERTY, INJURY TO PERSON, LOSS OF USE OF THE PRODUCT, OR INCONVENIENCE. SOME STATES DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE FOREGOING LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

Indemnification

Buyer agrees to indemnify, hold harmless and defend One by Kosé (and its employees, consultants, advisors, experts, officers, directors, parents, subsidiaries, affiliates, successors, assigns and agents) from and against any and all claims, demands, judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys’ fees) incurred or suffered by One by Kosé, which relate to or arise out of (a) Buyer’s use, handling, sale or distribution of the One by Kosé Products sold hereunder; or (b) Buyer’s breach of any representation, warranty or obligation hereunder.

Termination & Effect

Either you or One by Kosé may terminate access to or use of the Service with or without cause at any time and effective immediately. One by Kosé shall not be liable to you or any third party for termination of the Service. If you object to any provision of the Terms of Sale or any subsequent modifications thereto or become dissatisfied with the Service in any way, your only recourse is to terminate your use of the Service.

You agree that upon termination of these Terms of Sale, you will perform your obligations under all outstanding purchases.