These Terms and Conditions constitute a binding agreement between you and Jamberry Nails, LLC (“Jamberry”). By using this Application (as defined below) or installing any part of it on your mobile device, you expressly agree to, and consent to be bound by, all applicable terms of this agreement (these “Terms and Conditions”). As explained herein, certain of these Terms and Conditions only apply when you Post a Design (as defined below) for display and sale on the NAS Marketplace (as defined below). Please review these Terms and Conditions carefully before acceptance. Please note that, while these Terms and Conditions may reference statutes or legal concepts, they are not legal advice, and you are advised to consult with your own attorney with any questions you may have.
- Definitions. The following definitions shall apply for purposes of this Agreement:
- Affiliate Companies means any company owned by Jamberry or under common control with Jamberry that also sells Nail Wraps, including Jamberry-owned entities operating in countries outside the U.S.
- Application means the self-contained program and software (including any updates and all related software and documentation) provided by Jamberry on the Site, which allows users to create custom designs to be printed on Nail Wraps, including Nail Wraps for the Designer’s personal use and Nail Wraps to be Posted and offered for sale on the NAS Marketplace.
- Content means any drawings, images, photos, patterns, designs or any combinations thereof, which are uploaded to the Application. “Your Content” refers to Content you upload to the Application.
- Copyright has the same meaning it has under the U.S. Copyright Act.
- Design means a design created using Content uploaded to the Application and sent to Jamberry to be printed on a Nail Wrap, whether or not the design is posted for sale on the NAS Marketplace. “Your Design” refers to a design you create and send.
- Designer means anyone who creates a Design and submits it to Jamberry.
- Designer Wrap means a Nail Wrap created using a Design. “Your Designer Wrap” refers to a Nail Wrap using Your Design.
- Infringing Material any data, images, files, documents text, designs or other content (or Content) that infringes on the intellectual property rights of a third party
- Nail Art Studio refers to a Site or part of a Site devoted to the creation of Nail Wrap Designs using the Application, the process by which such creation takes place and the division of Jamberry devoted to providing support to such creation.
- Nail Wrap means the heat and pressure activated adhesive nail shield manufactured and sold by Jamberry as a Nail Wrap and any updates, refinements or variations thereto.
- NAS Wrap means a Nail Wrap designed using the Application.
- NAS Marketplace means a Site or any part of the Site that displays NAS Wraps and/or offers them for sale to the public.
- Post means to display and sell your Design in the NAS Marketplace through using the uploading feature provided on the Site.
- The Site or a Site means any website, mobile site or app owned or operated by or for Jamberry, including the website located at www.jamberry.com and its affiliated websites in foreign markets.
- Your License to Use the Application;
- Proprietary Rights of Jamberry. You hereby acknowledge and agree that all copyright, database rights, trademarks, and other intellectual property rights of any kind in the Application together with the underlying software code are owned by Jamberry and/or its licensors. You further agree that the Application contains proprietary and confidential information that is protected by applicable intellectual property laws and other laws.
- License to Use Application. Jamberry hereby grants you a non-exclusive, royalty-free, revocable license to use the Application in accordance with these Terms and Conditions; provided, however, that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Application.
- Your Representations and Warranties for Your Content and Designs Printed for Personal Use or to Post on the NAS Marketplace
You hereby represent and warrant the following regarding all of your Content uploaded to the Application and each Design created using the Application, whether or not it is Posted on the NAS Marketplace
- It does not contain or include any Infringing Material.
- It was generated in one of the following ways:
- it was created by you,
- it is in the public domain,
- it is licensed to you in writing by a person or entity who is authorized to do so.
- It does not infringe the privacy, rights to publicity, moral or other rights of any third party.
- It does not contain any defamatory, obscene or discriminatory content or any illegal material.
- It does not contain any logos, characters, drawings, text or names belonging to any television show, work of fiction or film, including but not limited to any material from Disney, Harry Potter, Dr. Who or Twilight.
- It does not contain any logo, uniform, player name or any other material pertaining to a professional or college sports team.
Copyright Infringement Policy and DMCA Compliance
- Reporting Infringement. Jamberry respects the intellectual property rights of others and asks you to do the same. Please notify Jamberry if you find your intellectual property rights or other rights have been violated by anything you see on the Site.
For copyright infringement, Jamberry follows the Digital Millennium Copyright Act (DMCA). The DMCA is a section of the U.S. Copyright Act that provides for the reporting and removal of online content for copyright infringement. Jamberry is committed to complying with the DMCA. If you believe your copyright has been infringed by a NAS Wrap, other Jamberry product or other content on the Site, please send notice to our designated copyright agent below. To be effective under the DMCA, your notification must contain the following:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark.
- a name and description of the copyrighted work that has been infringed (a copyright registration, a copy of the work itself or a link to a website where it may be posted is helpful).
- a description of the infringing content and where it appears on the Site (links to the place on the Site where the content appears is helpful, and you can include more than one link per notice).
- your address, telephone number and email address.
- a statement by you that you have a good faith belief that the material described in section 4) is not authorized by copyright owner, its agent or the law.
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Please send the above notification to:
Designated Copyright Agent
Address: 751 E. Quality Drive, American Fork, UT 84003
Phone: (801) 980-5566
- Responding to a Removal for Infringement. In response to a proper DMCA notice, Jamberry may remove the allegedly Infringing Material from the Site. We will notify you if you are the Designer of an NAS Wrap that was removed from the NAS Marketplace in response to DMCA notice. You may then send a counter-notice to Jamberry’s Designated Copyright Agent, which must contain the following information:
- your electronic or physical signature
- a description of the Design that was removed and where it appeared on the Site (if available, links are helpful)
- a statement under penalty of perjury that you have a good faith belief that Your Design was removed as a result of mistake or misidentification (and any information or evidence in support you believe will be helpful)
- your name, address, telephone number and a statement that you agree to accept service of process for a Copyright lawsuit from the person who originally complained.
- Jamberry’s Discretion. If Jamberry receives a proper counter-notice, we will send a copy to the person who provided the original DMCA notification (“the DMCA Complainant”). If, within 10 days of our receipt of the counter-notice, Jamberry receives notice that the DMCA Complainant has filed an action seeking a court order to prevent us from replacing the allegedly Infringing Material, we will not replace the material on the Site. Otherwise, we will either leave the allegedly Infringing Material off the Site or replace it in our sole discretion.
- Penalties for Misrepresentation. If you knowingly send a false DMCA Notification or Counter-Notification, we may terminate your user account. Additionally, under the DMCA, you will be liable for any damages, including costs and attorney fees, incurred by Jamberry and anyone else who is injured by such a misrepresentation.
- Jamberry’s Right to Reject and Remove Designs. You acknowledge that Jamberry has the right to protect itself from liability and negative publicity arising out of your use of the Application, and you agree that Jamberry may, in its sole discretion, reject and refuse to print or to Post any Content or Design you send and that Jamberry may remove any Design from the NAS Marketplace that it has previously allowed you to Post for any reason or for no reason and without notice. If Jamberry rejects Your Design and you have placed an order for Designer Wraps featuring that Design, you will be refunded the cost of your order, but not the set-up fee. All refunds and exchanges of Designer Wraps that have not been rejected or found to violate these Terms and Conditions will be according the Jamberry Return Policy posted on the home page of the applicable Site.
- Jamberry’s License to Content You Upload to the Application. You retain all copyright and other intellectual property rights in any Content you upload to the Application and in any Design you create using the Application. You grant Jamberry the non-exclusive, worldwide, transferable and sublicensable right to display, edit and alter the Content and Design for purposes of evaluating it for infringement, fulfilling your order for Nail Wraps featuring your Design, training employees and sales consultants on the Application and demonstrating and promoting the Application to Jamberry employees, Consultants and the public.
- Jamberry’s License to Nail Wrap Designs you Post to the NAS Marketplace. You retain all copyright and other intellectual property rights in any Design you Post. By Posting the Design, you grant Jamberry the nonexclusive, worldwide, transferable and sublicensable right to make Designer Wraps featuring the Design and to sell them to its Affiliate Companies and to the public on the Sites it chooses and the markets it chooses, in its sole discretion. You also grant Jamberry the right to reproduce, publicly display and distribute the Design in advertising, marketing, Nail Wrap samples, and promotional materials for the purpose of promoting the Site, the Nail Art Studio, the NAS Marketplace or any other aspect of Jamberry’s business. Without limitation, this promotion, marketing, or advertising may consist of the following in print, television, web and film advertising: (i) display of Nail Wraps featuring your Design inside and outside of its packaging and on the hands of people; (ii) display of your Design on other promotional products and (iii) display of your Design and the resulting Nail Wrap in marketing assets to be distributed to Jamberry independent sales consultants to use as they see fit in the promotion of their businesses.
You may delete or hide your Design from the Site at any time, but due to caching and other technical issues, it may take a number of days for it to be completely removed from the Site. Upon the removal of a Design, the licenses above will terminate, except that Jamberry will fulfill any orders placed prior to termination and Jamberry may continue to use your Design in marketing and promotional materials if such materials were created prior to removal of the Design.
- Royalty. Jamberry will pay you the royalty set forth in the Designer Program Royalty Schedule for each of Your Designer Wraps sold on the NAS Marketplace. The Royalty terms will be different depending on whether or not you are a Jamberry Independent Sales Consultant. Royalties will be paid to the designer account you create when you register as a designer on the Site. Jamberry reserves the right to withhold or reverse any royalty payments on any Designer Wraps Jamberry finds, in its reasonable discretion, to be infringing or to otherwise violate these Terms and Conditions.
- Indemnification. You agree to defend, indemnify and hold harmless Jamberry, its owners, officers and affiliates from and against any losses, damages or costs including attorney fees and other costs of litigation arising out of or related to any allegation that 1) Your Design(s) or Your Content infringe on the copyright or other intellectual property of any third party; 2) Your Designs or Your Content are defamatory, obscene or in violation the privacy rights or any other rights of any third party; 3) you have breached these Terms and Conditions, the user agreement or any other agreement with Jamberry 4) your use of the Site violates the rights of any third party.
- Release. You hereby and forever release Jamberry, its owners, officers and affiliates from any liability arising out of or related to a dispute between you and any Designer or Designers. If you are a California resident, you waive California Civil Code §1542,which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
- Restrictions of Use. Your use of the Application is subject to all applicable laws and regulations, and you are solely responsible for your use of the Application. The following uses of the Application are expressly prohibited:
- Any use of the Application which in our sole discretion, degrades the reliability, speed, or operation of the Application or any underlying hardware or software thereof;
- Any use of the Application which is unlawful;
- Any use of automated means, including without limitation, agents, robots, scripts, or spiders, to access, monitor, copy or harvest data from any part of Jamberry’s websites;
- Any use of your account to breach security of another account or attempt to gain unauthorized access to any portion of the Application to which you do not have access;
- Any interference with anyone else’s use and enjoyment of the Application;
- Uploading any content that is disruptive, uncivil, abusive, vulgar, profane, obscene, hateful, fraudulent, threatening, harassing, defamatory, or which discloses private or personal matters concerning any person;
- Uploading any content that you don't have the right to transmit under law (such as Infringing Material, including without limitation, copyrights, trade secrets, or securities) or under contractual or fiduciary relationships (such as nondisclosure agreements);
- Uploading any content that contains any form of commercial advertising or any other form of SPAM; and
- Uploading any proprietary or confidential information of your own or others.
- Termination of Use. You agree that Jamberry may, in its sole discretion, terminate or suspend your access to all or part of the Application or with or without notice and for any reason, including, without limitation, breach of these Terms and Conditions. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. Upon termination or suspension, regardless of the reasons therefore, your right to use the Application or post Designs to the NAS Marketplace immediately ceases, and you acknowledge and agree that Jamberry may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this Application. Jamberry shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
- Disruption of Services. You acknowledge and agree that from time to time the the Application may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which Jamberry may undertake from time to time, service malfunctions and causes beyond the reasonable control of Jamberry or which are not reasonably foreseeable by Jamberry, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to your hardware, Internet service provider, hostile network attacks, network congestion or other failures.
- Disclaimers. THE APPLICATION AND THE NAS MARKETPLACE ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, ACCURACY OF DATA OR DATA SETS, OR UPTIME AVAILABILITY. JAMBERRY DOES NOT WARRANT THAT THE APPLICATION WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. JAMBERRY DOES NOT WARRANT THAT THE APPLICATION WILL ACCOMPLISH ANY OF YOUR SPECIFIC OBJECTIVES OR WILL OPERATE ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES OF THIS AGREEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL THEIR ESSENTIAL PURPOSE. YOU FURTHER AGREE THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, YOU WILL NOT HOLD JAMBERRY LIABLE FOR ANY FAILURE OF THE APPLICATION. YOU AGREE THAT JAMBERRY SHALL NOT BE RESPONSIBLE TO YOU FOR ANY DAMAGES CAUSED BY DELAYS RESULTING FROM HARDWARE AND SYSTEMS OWNED AND CONTROLLED BY THIRD PARTIES (INCLUDING WITHOUT LIMITATION YOUR OWN DATA TRANSMISSION SPEEDS), DATA ENTRY ERRORS, USER ERRORS, OR ANY OTHER LIMITATIONS, ERRORS, OR DELAYS, THAT ARISE DURING THE TERM OF THIS AGREEMENT THAT CANNOT BE PREVENTED OR MITIGATED BY JAMBERRY.
- Limitation of Liability. You acknowledge and agree that in no event shall Jamberry be liable for any indirect, special, incidental, consequential (including, without limitation, lost profits, business interruption, or lost information), or other damages based in contract, tort or otherwise, rising out of your use of or inability to use the Application, even if Jamberry has been advised of the possibility of such damages. You further acknowledge and agree that Jamberry is not liable to you for any damage or alteration to your equipment including but not limited to computer equipment, handheld device or mobile telephones as a result of the installation or use of the Application.
- Service Provider. You acknowledge that the terms of any agreement with your respective mobile network provider will continue to apply when using the Application. Consequently, you may be charged by your mobile provider, or any applicable third parties, for access to its/their network connection services while you are accessing the Application. You accept responsibility for any such charges that arise.
- General Provisions.
- Security and Password: You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. You may not transfer or share your account with anyone, and Jamberry reserves the right to immediately terminate your account if you do transfer or share your account.
- Entire Agreement; Amendment. These Terms and Conditions constitute the entire agreement between you and Jamberry with respect to the subject matter hereof, and replace, amend and supersede any prior agreements between you and Jamberry pertaining to the subject matter hereof.
- Governing Law. These Terms and Conditions will be governed and construed under the laws of the State of Utah without regard to conflict of laws. All disputes between you and Jamberry arising out of or relating to these Terms and Conditions will be adjudicated in Utah and you consent to the exclusive, personal jurisdiction of the state and federal courts located in Salt Lake County and Utah County Utah.
- Dispute Resolution Any dispute arising out of or relating to your visit to the Site, your use of the Application or your post of a Design to the NAS Marketplace will be submitted to confidential, binding arbitration in Salt Lake County, Utah or Utah County, Utah, except that Jamberry may seek injunctive relief in the state or federal courts in Salt Lake or Utah County to the extent that you have violated or threatened to violate Jamberry’s intellectual property rights. All arbitrations will take place under the rules of the American Arbitration Association (“AAA”) and the decision of the arbitrator or arbitrators shall be final and may be entered as a judgment in any court having competent jurisdiction. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, multi-district or consolidated action.
- Waiver/Severability. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of these Terms and Conditions is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms and Conditions shall remain enforceable.
- Force Majeure. If the performance of any part of these Terms and Conditions is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such cause.