Terms and Conditions of Use
Welcome to the We Are Onyx website (the “Site”).
This Terms and Conditions of Use was first published and made effective on November 13, 2012 (the “Terms”).
WE ARE ONYX (“Onyx”, “we,” or “us”) owns or maintains this Site and online service of www.weareonyx.com, and any other websites we may acquire or maintain in the future (our “Site”). This page (together with the documents referred to on it) explains the terms by which you may use our Site and software provided on or in connection with the service (collectively the “Service”) in order to purchase any products from our Site or to subscribe to one of our Services.
By accessing, browsing or using this Site or the Service, or purchasing any of the products listed on the Site, you signify that you have read, understood, and agree to be bound by the Terms and to the collection, use and disclosure of your personally identifiable information as set forth in the We Are Onyx Private Policy, whether or not you will be a registered Member of our Site or a registered User of our Service.
If you do not agree to the Terms, you should not use or access this Site. You will not use Onyx if you are under 18. Onyx reserves the right to revise the Terms at any time by updating this posting. You are encouraged to review the Terms each time you access the Site because your access and use of the Site after the posting of changes will constitute your acceptance of the changes. We grant you a personal, limited, non-transferable non-exclusive, license to access and use the Site. We reserve the right, in our sole discretion and without notice to you, to revise the features, products and services available on the Site and to change, suspend or discontinue any aspect of the Site and we will not be liable to you or to any third party for doing so. Onyx may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. Your continued access and use of the Site will constitute your acceptance of any such changes.
1. Use of the Site/Service rules
You may use the Site only for your own noncommercial personal use and in compliance with these Terms. Any use of the Site or access to the Service by anyone under 18 is strictly prohibited and in violation of these Terms.
B) Onyx Accounts and Ordering
Onyx account gives you the ability to order and purchase products listed on our Site, and to have access to our Services. We may maintain different types of accounts for different types of Users. If you open an Onyx account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Onyx with a third-party service, such as a social media service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials from that service. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Onyx immediately of any breach of security or unauthorized use of your account. Onyx will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the Service by changing the settings in your customer account page.
In connection with you providing Onyx with your email address, you affirm, represent and warrant the following:
(a) You have the written consent of each and every identifiable natural person to use such person’s email address or likeness in the manner contemplated by the Site and/or Service and the terms, and each such person has released you from any liability that may arise in relation to such communication.
(b) Your email address and use of the Site and/or Service and Onyx’s use thereof as contemplated by the Terms will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
(c) To the best of your knowledge, your email address and other information that you provide to Onyx is truthful and accurate. Onyx takes no responsibility and assumes no liability for any information that you or any other user or third party posts or sends over to Onyx. You shall be solely responsible for the confidentiality of your email address and the consequences of sending it to Onyx, posting or publishing it, and you agree that we are only acting as a passive conduit for your online use and publication of your information. You understand and agree that Onyx shall not be liable for any damages you allege to incur as a result of the communication of your email address.
C) Service rules
In order to use the Site and/or Service, you agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site and/or Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) transmitting spam, chain letters, or other unsolicited email; (iii) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site and/or Service; (iv) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (v) uploading invalid data, viruses, worms, or other software agents through the Site and/or Service; (vi) collecting or harvesting any personally identifiable information, including account names, from the Site and/or Service (vii) using the Site and/or Service for any commercial solicitation purposes; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) interfering with the proper working of the Site and/or Service; (x) accessing any content on the Site and/or Service through any technology or means other than those provided or authorized by the Site and/or Service; or (xi) bypassing the measures we may use to prevent or restrict access to the Site and/or Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site and/or Service or the content therein. You may copy and redistribute the audiovisual content available on the Site; however, you may not alter or modify such audiovisual content in any manner and you may not remove any copyrights associated with such audiovisual content.
You are solely responsible for your interactions with other Onyx Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Onyx shall have no liability for your interactions with other Users, or for any User’s action or inaction.
You are responsible for your own communications, including the transmission or posting of information and are responsible for the consequences of such communications to the Site.
For the purposes of the Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
We require all Members and Users to agree not to use the Site, and specifically prohibit any use of the Site, for any of the following purposes:
• Posting, communicating or transmitting any material that infringes on any third-party rights of any kind, including without limitation any Intellectual Property Rights, publicity or privacy rights.
• Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation
Onyx may, without prior notice, change the Site and/or Service; stop providing the Site and/or Service or features of the Site and/or Service, to you or to users generally; or create usage limits for the Site and/or Service. Onyx may permanently or temporarily terminate or suspend your access to the Site and/or Service without notice and liability for any reason, including if in Onyx sole determination you violate any provision of the Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by the Terms.
3. Our Proprietary Rights
Except for your email address, the Site and Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all Intellectual Property Rights related thereto, are the exclusive property of Onyx and its licensors. Except as explicitly provided herein, nothing in the Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the Site. Use of the Site for any purpose not expressly permitted by the Terms is strictly prohibited.
We Are Onyx and the We Are Onyx logo are registered trademarks, of We Are Onyx.
All other trademarks are the property of their respective owners. All of our Site's content is Copyright 2012 We Are Onyx. All rights reserved.
5. Placing an order for Products
You may choose to purchase products from our Site and you begin by placing an order for the desired products through our Site. After placing an order on our standard order form, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy a product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the product has been dispatched (“Dispatch Confirmation”). The contract between us (“Contract”) will only be formed when we send you the Dispatch Confirmation. The Contract will relate only to those products whose dispatch we have confirmed in the Dispatch Confirmation. We will not be obliged to supply any other products which may have been part of your order until the dispatch of such products has been confirmed in a separate Dispatch Confirmation. All products ordered through our Site shall be subject to the payment processes described in Section 7 below.
6. Billing policies, Payments and Refunds
A) Billing Policies
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms quoted on our Site and as we may update them from time to time. Onyx may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Payment for all products purchased through our Site must be by credit (Visa or MasterCard only) or debit card.
You understand and agree that you shall receive no refunds and no exchanges for any Products once we or our supplier delivers these items to the carrier unless the Product received by you is damaged and/or expired.
C) Risk of Loss and Title
All products purchased from or via the Service are transported and delivered to you by an independent carrier not affiliated with, or controlled by Onyx. The risk of loss for such products passes to you when Onyx or our supplier delivers these items to the carrier. Title to products purchased on the Service passes to you when we receive full payment of all sums due for such products including any shipping and handling charges.
D) Payment Information; Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card or debit card, used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Payments shall be processed through our site and shall be in the form you select when you either submit an order form or your register a paid Service. Onyx reserves the right to withhold payment or charge back to your account any amounts otherwise due to us under this Agreement, or amounts due to any breach of this Agreement by you, pending Onyx’s reasonable investigation of such breach. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment made hereunder, you must notify Onyx in writing within thirty (30) days of such payment. Failure to so notify Onyx shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by Onyx. No other measurements or statistics of any kind shall be accepted by Onyx or have any effect under this Agreement. We may withhold any taxes or other amounts from payments due to you as required by law.
7. No Professional Advice
Any product or other information (for example, product ingredients, instruction for a particular product beauty use) is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
8. Additional Terms and Conditions
You agree that additional terms and conditions may apply to specific products, services or your use of certain portions of the Site, including with respect to early membership reward programs (“Additional Terms”), which Additional Terms are made part of the Terms by reference. If there is a conflict between the Terms and the Additional Terms, the Additional Terms shall control.
10.Limitation of Warranty – Information
Onyx strives to ensure that the information on the Site is complete and reliable. Certain information may contain typographical errors, pricing errors and other errors or inaccuracies which we may correct without liability. We also reserve the right to limit to revise, suspend, or terminate an event or promotion at any time without notice. We do not guarantee that all services and products described on our Site will be available on our Site.
You assume all responsibility and risk with respect to your use of the Site. THE SITE, AND ALL CONTENT, MERCHANDISE, AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THIS SITE OR A “LINKED” SITE ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY. SPECIFICALLY, BUT WITHOUT LIMITATION, ONYX DOES NOT WARRANT THAT: (1) THE INFORMATION ON THIS SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Onyx makes no warranties of any kind regarding any non-Onyx Sites or sites to which you may be directed or hyperlinked from this Site. Hyperlinks are included solely for your convenience, and Onyx makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such non-Onyx Sites or sites. Onyx does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Site.
13. Limitation of Liability
IN NO EVENT SHALL ONYX, ITS AFFLIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF ONYX HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE TOTAL LIABILITY OF ONYX, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR ACCESS AND USE OF THIS SITE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO ONYX IN CONNECTION WITH THE EVENT GIVING RISE TO SUCH LIABILITY.
You hereby acknowledge that the preceding paragraph shall apply to all content and services available through the Site. Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages, all of the above disclaimers or exclusions may not apply to all users.
14. International Use
Onyx controls and operates the Site and Site from the United States. We make no representation that services and materials on the Site are appropriate or available for use outside the United States. If you choose to access the Site from outside the United States, you do so at your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Onyx cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
17. DMCA Notice
Onyx respects artist and content owner rights and we expect our users to do the same. It is our policy to respond to claims of infringement in compliance with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement that is taking place through the Service, please complete the following DMCA Notice and deliver it to our Designated DMCA Agent at the contact information provided below.
You must provide the following information in writing in your DMCA Notice:
• Identify the copyrighted work that you claim has been infringed
• Identify the material that is claimed to be infringing and where it is located on the Service
• Provide reasonably sufficient information to permit us to contact you, such as your address, telephone number, and, e-mail address
• Provide 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 law
• Provide a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner and
• Provide an electronic or physical signature of a person authorized to act on behalf of the copyright owner
Deliver the DMCA Notice, with the above information completed, to our Designated DMCA Agent at:
Attn: DMCA Notice
We Are Onyx c/o American Entertainment Investors, Inc.
6420 Wilshire Blvd — Suite 1020
Los Angeles, CA 90048
Tel: (323) 302 5234
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please be aware that this procedure is only for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
18. Third-Party Links
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Onyx without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
A) Governing Law
You agree that: (i) the Service shall be deemed solely based in Los Angeles; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Onyx, either specific or general, in jurisdictions other than Los Angeles. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a state or federal court located in Los Angeles, California, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
In the unlikely event that Onyx has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Onyx claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in Alameda County, California under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Onyx from seeking injunctive or other equitable relief from the courts as necessary to protect any of Onyx’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ONYX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
C) Notification Procedures
Onyx may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Onyx in our sole discretion. Onyx reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Onyx is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
D) Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Onyx in connection with the Service, shall constitute the entire agreement between you and Onyx concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
E) No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Onyx’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
To contact us with any questions or concerns in connection with these Terms or the Site, or to provide any notice under these Terms, please email us at (email address).