TextureMedia, Inc. (“TextureMedia,“ “we,” “us,” or “our”) operates a network of websites and services (the “TextureMedia Network”). The term “you” refers to the person accessing or using the TextureMedia Network, or the company or organization on whose behalf that person accesses the TextureMedia Network.
Please read this Agreement carefully. Your use of or registration on any aspect of the TextureMedia Network will constitute your agreement to comply with this Agreement. If you do not agree to this Agreement, you must cease use of the TextureMedia Network.
The Agreement may be modified from time to time. The date of the most recent revisions will appear on this page, so check back often. By using the TextureMedia Network after we post any changes to this Agreement, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to this Agreement, you should not use the TextureMedia Network and, if applicable, you should arrange to cancel your registered user account.
Your failure to follow this Agreement, whether listed below or in bulletins, rules or other notices posted at various points in the TextureMedia Network, may result in suspension or termination of your access to the TextureMedia Network, without notice, in addition to TextureMedia’s other remedies.
TextureMedia reserves the right, at its sole discretion, to immediately, without notice, suspend or terminate (a) this Agreement; or (b) your registration with or ability to access the TextureMedia Network or any other service, tool, specific content, digital products or products provided to you by TextureMedia, upon any breach by you of this Agreement or otherwise.
The TextureMedia Network is not intended for users under the age of 13, and we do not knowingly collect personally identifiable information from users under the age of 13. Such users are expressly prohibited from registering for the TextureMedia Network or submitting their personally identifiable information to us, and from using portions of the TextureMedia Network for which registration is required, such as our social, community and public discussion areas, photo and video galleries, bulletin boards, forums, blogs, and contests/sweepstakes. In addition, you must be are 18 years of age or older to purchase any Texture Only Offers.
Among other things, the Agreement governs all text, articles, photographs, images, graphics, illustrations, creative, copy, artwork, video, audio, music, podcasts, games, trademarks, trade names, service marks, and other brand identifiers, designs, plans, software, data, statistics, analysis, and all other content, information, and materials (collectively, “Content”) available on or through the TextureMedia Network, whether posted, uploaded, transmitted, sent or otherwise made available by us, our licensors, vendors, or service providers (collectively, “licensors”), or by you, or other users or third parties, including any Content which is uploaded manually or bookmarked by you or other users. Content that is provided by us or our licensors is protected by copyright, trademark and other intellectual property laws, rules, and regulations (“IP Rights”), and is our property or the property of our licensors.
The TextureMedia Network is for your personal, noncommercial use except where expressly permitted. Please carefully consider the Content you choose to post on the Network, including, but not limited to, any message board or blog or any comment or profile. You should not include personally identifying information, such as your telephone number, street address or last name, on any area of the TextureMedia Network that is accessible to the general public or provide it to people you do not know. TextureMedia assumes no responsibility or liability of any kind for any material or information, products or services you may be provided by other users of the TextureMedia Network including its or their quality, accuracy, and appropriateness.
You agree that you will not use the TextureMedia Network to post on message boards, blogs, profiles, comments or any place on the TextureMedia Network, any message or material of any kind or nature that is unlawful, abusive, threatening, harassing, vulgar, obscene, profane, libelous, defamatory, harmful, racially offensive, sexually explicit, inaccurate, or otherwise objectionable material as determined by TextureMedia in its sole discretion or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. “Masked” vulgarity, obscenity or profanity (e.g. “f***”) is deemed to be equivalent to including the actual objectionable word, phrase or symbol in your post, message or otherwise on the TextureMedia Network. TextureMedia reserves the right to delete any such material from the TextureMedia Network. TextureMedia will cooperate fully with any law enforcement officials and/or agencies in the investigation of any person or persons who violate the terms contained in this Section. Please see our Community Ground Rules.
You agree not to impersonate any other person or entity, whether actual or fictitious, including impersonating an employee or consultant of TextureMedia. You further agree not to use an inappropriate member name of any kind.
You agree not to post or use the TextureMedia Network to distribute or send any illegal material of any kind, including but not limited to, illegal material in the form of text, graphics, video, or audio. Posting Content or participating in any form of discussion with the intention to commit any illegal activity is strictly prohibited.
You acknowledge that (i) Content is protected by IP Rights; (ii) these IP Rights are valid and protected in all media and technologies existing now or later developed; and (iii) except as explicitly provided otherwise, this Agreement and applicable copyright, trademark and other laws govern your use of such Content. You may not post to the TextureMedia Network, copy, reproduce, retransmit, distribute, publish, commercially exploit or otherwise transfer any material that infringes any IP Rights. You acknowledge that TextureMedia may acquire IP Rights to use any posted materials as described below, and that you will not acquire any of those IP Rights by downloading such materials.
By submitting Content, including your member name, to any “public area” of the TextureMedia Network, including message boards, blogs, forums, contests, public profiles, or comments, you grant TextureMedia (i) a royalty-free, perpetual, irrevocable, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display the Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any IP Rights that may exist in such Content, and (ii) the right to authorize others to do any of the foregoing. In addition, you warrant that, to the extent that you are not the exclusive holder of all IP Rights in Content you submit, the holder of any IP Rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You also permit any user to access, display, view, store, and reproduce such Content that you have made public for personal use. Subject to the foregoing, the owner of such Content placed on the TextureMedia Network retains any and all IP Rights that may exist in such Content.
TextureMedia is not obligated to review Content posted by users prior to the Content’s posting to any area of the TextureMedia Network, including any private profile. Content posted by any user to the TextureMedia Network does not reflect the opinions or views of TextureMedia or its affiliates. TextureMedia makes no warranty, whether express or implied, as to the accuracy of any Content or material that you send to other TextureMedia members through any TextureMedia service.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, BY SUBMITTING CONTENT TO ANY MESSAGE BOARDS, BLOG, EXPERT AREAS, QUESTION AND ANSWER FORUMS, SWEEPSTAKES, CONTESTS OR ANY OTHER AREA ON THE TEXTUREMEDIA NETWORK, YOU HEREBY EXPRESSLY PERMIT TEXTUREMEDIA TO IDENTIFY YOU AS THE CONTRIBUTOR OF SUCH CONTENT IN ANY PUBLICATION IN ANY FORM, MEDIA OR TECHNOLOGY NOW KNOWN OR LATER DEVELOPED IN CONNECTION WITH THE CONTENT.
Unless otherwise specified, the TextureMedia Network is intended for your personal, non-commercial use only. You are solely responsible for all usage of, or activities on, the TextureMedia Network by you and by those you authorize, provide access to or otherwise allow to use the TextureMedia Network, for example, by authorizing or allowing access to your account/profile or any computer, mobile or other device from which the TextureMedia Network is accessible.
The TextureMedia social networking service allows members to create unique personal profiles, communicate and share materials with other members through tools, such as video and photograph uploading, blogs, product reviews, comments, salon ratings, and other tools and services that may be included from time to time. Use of and membership to the social networking platform is void where prohibited. You must register for the social networking platform in order to use its services. Your use of the social networking platform is subject to this Agreement and any Additional Terms. You are solely responsible for your interactions with other users.
You may never use another’s account without permission. If you become aware of any misuse of the TextureMedia Network by any person, please contact TextureMedia as specified on the Contact Us link.
You must comply with all local, state, federal, provincial, national, international, and foreign laws, rules, and regulations, including applicable import and export control laws, in accessing and using the TextureMedia Network, and will immediately notify us if you learn of or suspect a security breach or any illegal activity in connection with the Network.
If you register or set up an account on the TextureMedia Network, you will be solely responsible for maintaining the confidentiality of your Registration Information. You may not authorize others to use your Registration Information. You may not sub-license, transfer, sell or assign your Registration Information or this Agreement to any third party without our written approval. Any attempt to do so will be null and void, and will be considered a material breach of this Agreement.
You are solely responsible for all usage or activity on your account including, but not limited to, use of the account by any person who uses your Registration Information, with or without authorization, or who has access to any computer on which your account resides or is accessible.
The TextureMedia Network is provided free of charge to you (unless otherwise indicated). However, TextureMedia or TextureMedia Merchants (defined below) may charge you fees for products or services offered for sale through the TextureMedia Network. You agree to pay all fees and charges, including applicable taxes, incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any products or services offered for sale through the TextureMedia Network by TextureMedia or by any Third Party Merchant (such fees, charges and taxes are collectively referred to as “Fees”). TextureMedia reserves the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon prior notice to you.
If you submit your credit, debit or charge card information to TextureMedia upon registration or otherwise, you give TextureMedia permission to charge all Fees incurred through your account to the credit, debit or charge card you designate. Any additional Fees (other than renewal fees) will be charged at the time they are incurred. If payment cannot be charged to your credit, debit or charge card or your payment is returned to TextureMedia for any reason, including charge back, TextureMedia reserves the right to either suspend or terminate your account and all its obligations under this Agreement.
You will ensure that none of the equipment, hardware, software, products, or services you use to access, visit, or use the TextureMedia Network will disturb or interfere with our operation of the Network, or impede or interfere with others’ access, visitation or use of the Network. We reserve the right, in addition to our other remedies, with or without notice, to immediately disconnect from the TextureMedia Network any equipment, hardware, software, product and/or services causing interference with us, our licensors, vendors, service providers, TextureMedia or any Content.
The TextureMedia Network can be accessed from countries around the world. You understand that some or all products or services provided on or through the TextureMedia Network may not be available for purchase to persons residing in certain jurisdictions or geographic areas. TextureMedia does not represent or warrant that any product or service promoted on the TextureMedia Network will be available for purchase by any particular person.
The TextureMedia Network contains links to websites maintained by other parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk.
You may order services or merchandise through the TextureMedia Network from other persons not affiliated with TextureMedia (“Third Party Merchants”). All matters concerning the merchandise and services desired from a Third Party Merchant, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Merchant. TextureMedia makes no warranties or representations whatsoever with regard to any goods or services provided by Third Party Merchants. You will not consider TextureMedia nor will TextureMedia be (a) construed as a party to such transactions, whether or not TextureMedia may have received some form of revenue or other remuneration in connection with the transaction, or (b) liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
We strive to provide an enjoyable online experience for our users, so we may monitor activity on the TextureMedia Network, including in the social, community and public discussion areas, photo and video galleries, bulletin boards, forums, blogs, and elsewhere, to foster compliance with the Agreement. You specifically agree to such monitoring. Nevertheless, we do not make any representations, warranties or guarantees that: (I) the TextureMedia Network, or any portion of it, will be monitored for accuracy or unacceptable use, (II) apparent statements of fact will be authenticated, or (III) we will take any specific action (or any action at all) in the event of a challenge or dispute regarding compliance or non-compliance with the Agreement. We generally do not pre-screen Content before it is posted, uploaded, transmitted, sent or otherwise made available on or through the Service by users, so you may be exposed to Content that is opinionated, offensive, and/or inappropriate, including Content that violates the Agreement.
Remember that by using the TextureMedia Network you may be exposed to Content that is opinionated, offensive, and/or inappropriate, including Content that violates the Agreement, but not all of that Content is actionable. We ask that you not use the TextureMedia Network, or lodge complaints against other users, to facilitate a personal dispute. If you have a legitimate complaint about another user, please do the following.
Harassment: If you have reason to believe that another person is using the TextureMedia Network in a way that is harmful to you (for example, to impersonate or imitate you, or to stalk, bully, threaten, intimidate or otherwise harass you), we urge you to contact your local authorities, or appropriate state or federal agencies.
Copyright Complaints: If you have reason to believe that your Content has been copied or is accessible on the TextureMedia Network in a way that constitutes copyright infringement, or that the TextureMedia Network contains links or other references to another site, application, destination or service that contains Content or activity that infringes your copyright rights, you may notify us as described below in the section entitled Copyright Notices.
CyberCrime: If you have reason to believe you may be the victim of an online crime, such as identity theft, fraud, infringement, or hacking, you may contact the Internet Crime Complaint Center, at www.ic3.gov, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center (NW3C), funded in part by the Bureau of Justice Assistance (BJA).
IMPORTANT: False or inaccurate accusations that others have committed a crime, inappropriate act, or violation of this Agreement, could be a violation of criminal or civil law, or otherwise expose you to liability for damages (including costs and attorneys’ fees).
While you may freely discuss hair care topics of interest to you, and the TextureMedia Network may include general Content relating to a range of hair care topics, including hair type information, treatment tips, or product recommendations, you should not rely on the TextureMedia Network for individual advice on such issues. Instead, we recommend that you talk in person with a qualified professional. You alone will bear the sole responsibility for evaluating the merits and risks associated with use of Content obtained on or through the TextureMedia Network before making any decisions based on such Content.
You understand that much of the information that you submit to us (such as postings and invitations) is submitted precisely for the purpose of disclosure in a variety of ways by TextureMedia, and therefore such information is not subject to any confidentiality obligation. Other information, such as credit card information provided in connection with the purchase of products or services, including Texture Only Offers, is maintained with appropriate privacy and security protections. You agree that information provided to us in connection with the purchase of a TOO voucher, other than your credit card information, may be disclosed by us to the TextureMedia Merchant for its commercial purposes including to provision the Texture Only Offer.
Any communications between you and TextureMedia, such as email or other correspondence, in which you offer suggestions or comments for improving or modifying the TextureMedia Network, including any products or services, will be deemed by us to be non-confidential and non-proprietary, and you agree that such information may be used by us without any limitation whatsoever.
From time to time, certain Third Party Merchants (referred to as “TextureMedia Merchants”) are willing to offer special time-limited promotional offers (referred to as “Texture Only Offers” or “TOO vouchers”) in order to reach the TextureMedia Network community. TOO vouchers are redeemable for certain goods, services or experiences offered by, or facilitated through, the TextureMedia Merchant identified on the voucher.
By purchasing a TOO voucher, a customer acquires the right to print a voucher issued by the participating TextureMedia Merchant and to use the voucher according to its terms and the terms of this Agreement. Whether you choose to print or redeem the TOO voucher is within your sole control and at your sole discretion. TextureMedia reserves the right, in its sole discretion, to exclude or otherwise limit the provision of a TOO voucher for any product or service to a person residing in any jurisdiction or geographical area.
To be clear, TOO vouchers you purchase through TextureMedia are from participating TextureMedia Merchants. TextureMedia markets the Texture Only Offer and acts an as agent in selling it on behalf of the TextureMedia Merchants. But the TextureMedia Merchant is the issuer of the TOO voucher and is solely responsible for redeeming it. As the issuer of the TOO voucher, the TextureMedia Merchant is fully responsible for all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Claims”) suffered by or in respect of you or any customer, caused in whole or in part by the Merchant or its products and services, as well as for any unclaimed property liability arising from unredeemed or partially redeemed vouchers. You waive and release TextureMedia and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any Claims arising from or related to any act or omission of a TextureMedia Merchant in connection with your use of a TOO voucher or the promotion the Merchant provides in connection with it.
By purchasing any TOO voucher you agree to the terms of this Agreement, including these terms of sale. By purchasing, viewing a mobile version, printing, accepting, using or attempting to use any TOO voucher, you agree to these terms of sale specifically, the terms on the voucher itself, and any additional, TOO deal-specific terms advertising the voucher at the time of purchase (collectively, the “deal-specific terms” regardless of how labeled). These terms of sale apply to all TOO vouchers that we make available, unless a particular voucher’s deal-specific terms state otherwise, and except as otherwise required by law. In the event of a conflict between these rules and a voucher’s deal-specific terms, the deal-specific terms of a voucher will control, except to the extent such terms are prohibited by applicable law.
Each TOO voucher has two separate values that make up the promotion – the paid portion and the promotional value. The “paid portion” is equal to what you paid, i.e., the amount your credit card is charged. The “promotional value” is the additional value beyond the paid portion (provided the voucher is used by the promotional expiration date on it). Together, the paid portion and the promotional value equal the “full offer value” of the voucher. To illustrate, if you pay $10 for a Texture Only Offer that gets you $25 of goods or services from a TextureMedia Merchant, the full offer value is $25, the paid portion is $10, and the promotional value is $15 (this amount expires on the date stated on the voucher unless expiration of the promotional value is prohibited by law).
If the expiration of the paid portion of the Texture Only Offer as of the date printed on the voucher is prohibited under the law of the jurisdiction in which the TextureMedia Merchant is located, then the voucher will expire as follows: the promotional value of the TOO voucher will expire on the date printed on the voucher, and the paid portion of the voucher will expire as required under applicable law. The TextureMedia Merchant is obligated to honor the voucher in compliance with law. If the Merchant refuses to honor the voucher before the legally permitted expiration date, then TextureMedia will refund the amount paid upon request in the original form of payment. Vouchers are not redeemable for cash, unless required by law. Unauthorized or unlawful reproduction, resale, modification or trade of vouchers is prohibited.
If you maintain a TextureMedia account in good standing, you have the opportunity to earn a credit toward a discount off a future TOO voucher when your referred friend makes a qualifying purchase of a Texture Only Offer.
To participate, refer friends who have never purchased a TOO voucher from TextureMedia (“New TOO User”) by sending them your personal referral link (“unique link”), available on the TextureMedia Network or provided to you as a recipient of an invite-only special offer. If the New TOO User clicks your unique link and makes an initial purchase of a Texture Only Offer priced at ten dollars ($10) or more (“Eligible Offer”), TextureMedia will credit your account with the TOO voucher credit you are eligible to receive, approximately three days after the Eligible Offer closes and is no longer offered for sale to the public.
TextureMedia may provide various tools to help you disseminate your unique link. You may also share your unique link via email and social media. Please note that whenever you decide to share your unique link you must tell your friends that you are eligible to receive credit toward the purchase of a TOO voucher if they sign up and make a qualifying purchase. Failure to disclose this information is a violation of this Agreement and TextureMedia may terminate your access to Texture Only Offers immediately, disqualify you from participating in Texture Only Offerings in the future, and cause the forfeiture of any TOO voucher discount credits in your account.
TextureMedia reserves the right at any time to modify or discontinue this referral program (or any part of the program) on a temporary or permanent basis, with or without notice. TextureMedia will not be liable to you in the event of any such modification, suspension or discontinuance.
Unless otherwise stated in the TOO voucher or required by law, the following additional terms apply to all vouchers:
• no cash value for any TOO voucher,
• no cash back will be issued for partial redemption of the paid portion of a TOO voucher, except as required by law,
• no cash back or credit will be issued for partial redemption of the promotional portion of a TOO voucher,
• use of a TOO voucher for alcoholic beverages is at the sole discretion of the TextureMedia Merchant (which may be limited by applicable state or provincial law), unless otherwise noted on the TOO voucher,
• TOO vouchers cannot be combined with any other coupons or promotions unless otherwise noted in the voucher,
• TOO vouchers cannot be used for taxes, tips, prior balances, shipping or handling, as applicable,
• neither TextureMedia nor the TextureMedia Merchant is responsible for lost or stolen TOO vouchers or voucher reference numbers,
• duplicate use, sale or trade of a TOO voucher is prohibited, except as required by law, and
• unless otherwise stated at the time a TOO voucher is purchased, the voucher price does not include sales, value added or use taxes, which may be charged to you separately by the TextureMedia Merchant at the time you redeem the voucher.
From time to time we may offer special promotions, contests or sweepstakes intended to provide you an incentive to purchase Texture Only Offers or to encourage you to get others to do so. The applicable rules will be posted on TextureMedia in or near the description of each such promotion. We reserve the right to interpret these rules in our sole discretion, and you hereby agree to our interpretation.
We respect the intellectual property of others, and we ask you to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that Content on the TextureMedia Network infringes your copyright, you (or your agent) may send TextureMedia a notice requesting that the Content be removed or access to it blocked.
The notification must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (d) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) 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 owner of an exclusive right that is allegedly infringed.
The notification should be sent to:
TextureMedia, Inc., Attn: DMCA/Copyright Agent
6604 North Lamar Blvd.
Austin, TX 78752
We provide the above contact information for purposes of the DMCA only and reserve the right to respond only to correspondence that is relevant to this purpose.
You acknowledge that you are using the TextureMedia Network at your own risk. The TextureMedia Network is provided “AS IS,” “with all faults,” and “as available.” TEXTUREMEDIA, ITS AFFILIATES, AND ITS VENDORS AND MERCHANTS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY THE TEXTUREMEDIA NETWORK. TEXTUREMEDIA, ITS AFFILIATES, AND ITS VENDORS AND MERCHANTS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE TEXTUREMEDIA NETWORK WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED ON THE NETWORK.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO DISCONTINUE YOUR USE OF THE TEXTUREMEDIA NETWORK.
IN NO EVENT SHALL THE LIABILITY OF TEXTUREMEDIA, OR OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, OR MERCHANTS, FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE TEXTUREMEDIA NETWORK, INCLUDING SERVICES AND PRODUCTS, EXCEED THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE OR PRODUCT AT ISSUE. TEXTUREMEDIA, OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THIS AGREEMENT, THE PROVIDING OF THE TEXTUREMEDIA NETWORK UNDER IT, THE SALE OR PURCHASE OF ANY GOODS OR MERCHANDISE, YOUR ACCESS TO OR INABILITY TO ACCESS THE TEXTUREMEDIA NETWORK, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE NETWORK, YOUR USE OF OR RELIANCE ON THE TEXTUREMEDIA NETWORK OR ANY OF THE MERCHANDISE, INFORMATION OR MATERIALS AVAILABLE ON THE NETWORK, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
We will make every reasonable effort to resolve any disagreements that you have with TextureMedia. If those efforts fail, by using the TextureMedia Network you agree that any claim, dispute, or controversy you may have against TextureMedia arising out of, relating to, or connected in any way with this Agreement, the TextureMedia Network or the purchase or sale of any product or service, including any TOO voucher, will be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”). You agree further that: (a) the arbitration will be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and TextureMedia; (b) the arbitrator will apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and will honor claims of privilege recognized at law; (c) there will be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or TextureMedia’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) each of us will be responsible for our own costs except that in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, TextureMedia will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (e) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision will remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision will be null and void, and neither you nor TextureMedia shall be entitled to arbitrate its dispute.
You agree to defend, indemnify and hold harmless TextureMedia, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from: (a) your use of and access to the TextureMedia Network; (b) your violation of any term of this Agreement; (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (d) any claim that any Content submitted by you causes damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the TextureMedia Network.
TextureMedia reserves the right, but has no obligation, to monitor, or take any action TextureMedia deems appropriate regarding disputes that you may have with other customers of ours or any vendors or Merchants. To the extent the law permits, you release us from any claims or liability related to any Content posted on the Site and from any claims related to the conduct of any other customers of ours or any vendors or Merchants. You hereby waive California Civil Code Section 1542 (if you are a California resident), and any similar provision in any other jurisdiction (if you are a resident of such jurisdiction), 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.”
TextureMedia has the right to terminate and/or suspend your ability to access the TextureMedia Network or any portion thereof, for any or no reason, without notice.
The communications between you and TextureMedia use electronic means, whether you visit the TextureMedia Network or send us emails, or whether TextureMedia posts notices on the TextureMedia Network or communicates with you via email. For contractual purposes, you (a) consent to receive communications from TextureMedia in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TextureMedia provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
TextureMedia makes no representation that materials on the TextureMedia Network are appropriate, available or legal in any particular location. Those who choose to access the Network do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree that this Agreement, for all purposes, will be governed and construed in accordance with the laws of the State of Texas applicable to contracts to be wholly performed therein.
TextureMedia may modify or discontinue the TextureMedia Network, any portion thereof, or any of its services, tools, digital products, products, or events with or without notice to you and without liability to you or any third party, except as otherwise provided herein.
In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provisions are held invalid by a court with jurisdiction over the parties to the Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect.
You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid. Should any part of this Agreement be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of this Agreement will not be considered a waiver of the right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
YOU AND TEXTUREMEDIA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TEXTUREMEDIA NETWORK MUST COMMENCE WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You represent that you are legally able to accept this Agreement. You affirm that you are either more than 18 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. And as stated above, you affirm that you are, in any case, 13 years of age or older. If you aren’t, you must please cease use of TextureMedia.
The parties hereto confirm their express wish that this Agreement and all documents and agreements directly or indirectly relating thereto be drawn up in the English language. Les parties reconnaissent leur volonté expresse que la présente convention ainsi que tous les documents et contrats s’y rattachant directement ou indirectment soient rédigés en anglais.
Any changes to this Agreement (other than as set forth in this paragraph) or waiver of TextureMedia’s rights under this Agreement will not be valid or effective except in a written agreement which has been physically signed by an officer of TextureMedia. No purported waiver or modification of this Agreement by TextureMedia via telephonic or email communications will be valid.
Last modified as of June 10, 2013