SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Last Modified: April 20, 2021

Please read these terms and conditions carefully before use.

Kaleidoscope Hair Products LLC (“We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these SMS/MMS Mobile Messaging Terms and Conditions, Our Terms of Use, Privacy Policy, and any other applicable terms and agreements related to your use of Our Program (the “Agreement”). By opting in to or participating in Our Program, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with Us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other agreements that may govern the relationship between you and Us in other contexts.

Program Description: Without limiting the scope of the Program, users that opt in to the Program can expect to receive messages from Us and others texting on Our behalf concerning the marketing and sale of Our goods, services, and events (e.g., personal care products, accessories, books, video content and supporting materials). Messages may include checkout reminders.

User Opt In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through checking the box to sign up online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system as defined by the Telephone Consumer Protection Act.

Change in Number: You represent and warrant that you are the authorized account holder for the mobile phone number you have provided to Us for opt in to this Program. It is your responsibility to notify Us immediately if you change, forfeit, or deactivate your number. Failure to do so constitutes a material breach of this Agreement. You can notify us via our contact us page.

You further agree to to indemnify, defend, and hold us harmless in full from any claim or liability resulting from or related to, in whole or in part, your failure to notify Us of a change in the number you provided, including, but not limited to, any claim, expense, or damage related to or arising from the Telephone Consumer Protection Act, or similar state and federal laws, or regulations promulgated thereunder resulting from Us attempting to contact you at the number you provided.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above, emailing Us, or verbally requesting one of our employees to remove you from Our list, is not a reasonable means of opting out. Once you opt out, you can re-enroll in the Program at any time by following the opt in procedures above.

Message Cost and Frequency: Message and data rates may apply for each message sent or received in connection with Our Program. It is best to contact your wireless provider if you have questions regarding your data or text plan.  Message frequency varies. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email Us at customerservice@iluvcolors.com. Please note that requests to this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and delivery of information and content may not be available in all areas at all times and may fail due to a variety of circumstances including product, software, coverage or other changes made by your wireless carrier. You understand and acknowledge delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control, and We will not be liable for any issues arising from them, including delays or failures in the receipt of any mobile messages connected with this Program. Carriers are not liable for delayed or undelivered mobile messages.

Participant Requirements: You must be using a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use or engage with the Program if you are under thirteen (13) years of age. If you use or engage with the Program and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Program, you acknowledge and agree that you have the legal authority as permitted by your jurisdiction’s applicable law to enter into this binding Agreement, and that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Program, or are of adult age in your jurisdiction. We reserve the right to require you to prove you meet the aforementioned age requirements.

Prohibited Content: You acknowledge and agree to not send any prohibited content through the Program. Prohibited content includes:

• Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
• Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
• Pirated computer programs, viruses, worms, Trojan horses, or other technically harmful material or code;
• Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
• Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act or the Health Information Technology for Economic and Clinical Health Act; and
• Any other content that is prohibited by applicable law in the jurisdiction from which the message is sent.

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory or common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by binding and confidential arbitration in New Orleans, Louisiana in the United States before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the state of Louisiana, without regard to its conflict of laws rules. The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of you and Us, except that such arbitrator must be admitted to practice law in Louisiana with at least five years’ experience in that capacity and must have knowledge of and experience with the subject matter of the dispute. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). Nothing in this section shall prevent Us from pursuing injunctive relief. To the fullest extent permissible by law, you agree that you shall be responsible for all costs associated with initiating or administrating the arbitration. The arbitrator shall have no authority to award punitive damages and you hereby waive any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of this Agreement. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending dispute for which We have notice or pending arbitration proceeding.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a continuing waiver of such right or a waiver of any further rights hereunder.  If any provision of this Agreement is found to be unenforceable or invalid, the unenforceability or invalidity of such provision shall not affect the validity of the remaining provisions, and that unenforceable or invalid provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change, modify, or amend this Agreement from time to time without prior notice. We shall post all amended forms of this Agreement on iluvcolors.com. You acknowledge your responsibility to review this Agreement from time to time to ensure you are aware of any such changes. By continuing to participate or stay enrolled in the Program after any such changes, you accept this Agreement, as modified.