dpHUE Pro App Terms of Use

Terms and Conditions
dpHUE Professional Application

Last updated: January 27, 2021

Welcome! The Company is excited about your interest in dpHUE Products and introducing our Products to your clients. Please review the following Terms and Conditions governing the use of the dpHUE Professional App and the sale of the Company’s Products using the App. If the Terms and Conditions are acceptable to you, then we are ready for you to move one step closer to becoming an authorized user of the dpHUE Professional app! PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BECAUSE THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND dpHUE WHEN YOU ACCEPT THEM AND THEY INCLUDE AN AGREEMENT TO SETTLE DISPUTES VIA INDIVIDUAL ARBITRATION.

TERMS AND CONDITIONS

  1. Certain Definitions: The words below have the following meanings when used in these Terms and Conditions (the “Terms”):

    • “App” means the dpHUE Professional Application for use on your mobile device or on any other device that allows you to access the App.

    • “we,” “us,” or “dpHUE” or the “Company” mean DMP Color, LLC, a Delaware limited liability company, doing business as dpHUE. These meanings apply whether or not the words are capitalized.

    • “you” or “Authorized User” mean the licensed salon professional who accepts these Terms and meets the other requirements set forth in the App to be an Authorized User. These meanings apply whether or not the words are capitalized.

    • “Products” or “dpHUE Products” mean dpHUE-branded Products sold on the dpHUE website, www.dpHUE.com, irrespective of whether the App is used to assist with the sale.

    • “Account” means an account established by you through the App in accordance with these Terms.

    • “Client” or “customer” means a third party who purchases Products. These meanings apply whether or not the words are capitalized.

    • “Purpose” means the use of the App to introduce your clients to dpHUE Products and to assist your clients with purchasing dpHUE Products using the App.

    • “Terms” means these Terms and Conditions, as may be amended or restated from time-to-time. This meaning applies whether or not the word is capitalized.

    Other defined terms used herein have the meaning given to them in these Terms.

  2. Compatibility: At this time, the dpHUE Professional Application (the “App”) is only compatible with iPhone and iPad running iOS 10.2 or later.

  3. Sales in the United States Only: The App may only be used for sales and deliveries of dpHUE Products within the continental United States.

  4. Contractual Relationship: These Terms govern access to and use of the App within the continental United States. Your acceptance of these Terms governs your use of the App, and if at any time, you no longer agree with these Terms, you may no longer use or access the App. We may immediately terminate these Terms or the App with respect to you, or generally stop offering or deny access to the App or any portion thereof, at any time and for any reason. Similarly, you may stop using or accessing the App at any time and for any reason.

  5. Required Age: You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to be permitted to register an Account and use the App. By accepting these Terms, you are confirming you are at least 18 years of age (or the age of legal majority in your jurisdiction, if different).

  6. Deliverables by You: To use the App, and to introduce your clients to dpHUE Products and assist them with the purchase of dpHUE Products using the App, you must establish an Account and provide each of the following to us:

    • Your name, current address, and email address;

    • A current copy of your license to practice cosmetology issued by a State within the continental United States (your “License”);

    • A properly completed and executed Form W9;

    • The email address that is linked to your Paypal account and permits you to receive payments (your “Payment Address”); and

    • any other items required by the App or these Terms to start connecting your clients to dpHUE Products.

    NOTE, that you will be required to provide a properly completed and executed Form W9, and, prior to the expiration of your License, a current copy of your renewed License via the links provided in your profile page in the App. You cannot use the App if we don’t have a current copy of your License, and we cannot pay you commissions as set forth in Section 10 below if we don’t have a current, completed Form W9 from you and your current Payment Address. If you fail to maintain accurate, complete, and up to date (i) Form W-9, (ii) Payment Address, and (iii) proof of current License with us, you will be unable to access or use the App and unable to receive commission payments in accordance with these Terms.

  7. Placing Orders: You will earn commissions as set forth in Section 10 below on Product orders that you place on your clients’ behalf through your Account using the App (each, an “Order”). As an Authorized User, you are the only person authorized to use the App and to place Orders using the App registered in your name. When placing an Order, you will work with your client to decide which dpHUE Products the client would like to order, and you will place the selected dpHUE Products in the Shopping Cart for that client. When the client’s shipping, payment, and billing information is required by the App, you must first open the “Client Disclosures” on the App, which include a set of terms and conditions and certain privacy disclosures applicable to the client, and allow the client to review those disclosures before the client enters any of his or her information into the App. Only the client may enter the client’s information into the App, and only after the client has reviewed the Client Disclosures. BY ACCEPTING THESE TERMS, YOU ARE CONFIRMING TO dpHUE THAT YOU WILL NOT ALLOW THE CLIENT TO INPUT HIS OR HER INFORMATION INTO THE APP BEFORE HE OR SHE HAS REVIEWED THE CLIENT DISCLOSURES. After the client has reviewed the Client Disclosures, the client should enter his or her information into the App. The App does not retain any client information on your personal device. You are responsible for all activity that occurs on the App for which you are the Authorized User, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by dpHUE in writing, you may only have one Authorized User account on the App.

  8. Earning Commissions: You will be entitled to receive a commission of 50% on each Order of dpHUE Products purchased by your client through your Account using the App. You are only entitled to commissions on the actual amount charged to your client for the dpHUE Products in the Order. You will not be entitled to earn commissions on any taxes, shipping or other amounts charged to your client in connection with the Order or for any returned Products (see Section 9 below). See also Section 10 below for limitations on dpHUE’s obligations to make commission payments to you if you have not complied with the deliverable requirements in Section 6 above or if you do not have a current Payment Address.

  9. Returns: dpHue’s return policy requires Products to be returned within 30 days of purchase and a return must be accompanied by the client’s receipt or proof of purchase. dpHUE has no obligation to accept a Product for return after such date or without a receipt or proof of purchase. If your client returns a Product within such time period in accordance with dpHUE policy, you will not be entitled to earn a commission on the original sale of the returned Product.

  10. Payment of Commissions: You must have a Paypal account to earn and receive commissions. dpHUE will pay any validly earned commissions to you within 1 business day after the close of the following month. dpHUE will not be required to pay any commission to you if we do not have (1) a current, properly completed and executed Form W9 from you, (2) a current copy of your License, and (3) a current Payment Address. If you have qualified to earn commissions but you have not complied with clauses (1), (2), and (3) above, dpHUE will notify you of the missing information and you will have 45 days from the date on which the payment was originally due to provide such information to dpHUE. If you do not provide such information with the 45-day period, dpHUE will no longer be obligated to pay you the commission and any earned but unpaid commissions will be deemed forfeited.

  11. Questions About the Products, Email Communications: dpHUE’s website contains Product descriptions and Product ingredients. Please refer to these descriptions when discussing our Products with your clients. If you have any questions, or would like additional information, please contact us at pros@dphue.com. We may also share information about our Products and promotions with you from time-to-time via email.

  12. Network Access and Devices: You are responsible for obtaining the data network access necessary to use the App. Your mobile network's data and messaging rates and fees may apply if you access or use the App from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the App and any updates thereto. dpHUE does not guarantee that the App, or any portion thereof, will function on any particular hardware or devices. The App may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

  13. Limited License: Subject to your compliance with these Terms, dpHUE grants you a limited, non-exclusive, non-assignable, revocable, non-transferable license to access and use the App on your personal, compatible device solely for the Purpose stated in Section 1. Any rights not expressly granted to you hereunder are reserved by dpHUE.

  14. Ownership: The App and all rights therein are and shall remain the property of dpHUE. Neither these Terms nor your use of the App convey or grant to you any rights other than the limited license granted above under “Limited License.” The trademarks, trade names, designs and logos made available to you through the App, or included in the App, that are used or owned by dpHUE or its wholly owned subsidiaries ("dpHUE Marks") are proprietary marks of dpHUE. Your use of the App does not convey to you any right, title or interest in or to the App or the dpHUE Marks.

  15. Disclaimers; Limitation of Liability; Indemnity:

    DISCLAIMER.

    THE APP AND THE SERVICES PROVIDED BY THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE." dpHUE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, dpHUE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE APP OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE APP, OR THAT YOUR USE OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APP REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

    LIMITATION OF LIABILITY.

    dpHUE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE APP, REGARDLESS OF THE NEGLIGENCE (WHETHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF dpHUE, EVEN IF dpHUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    dpHUE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF (i) YOUR USE OF OR RELIANCE ON THE APP, OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO A CLIENT OF YOURS, EVEN IF dpHUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. dpHUE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND dpHUE'S REASONABLE CONTROL.

    dpHUE’s AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND/OR YOUR USE OF THE APP WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THESE TERMS IN THE PRECEDING SIX MONTH PERIOD. ALL CLAIMS MADE HEREUNDER BY YOU AGAINST US MUST BE MADE WITHIN 120 DAYS OF THE ACT OR OMISSION BY dpHUE THAT FORMS THE BASIS OF SUCH CLAIMS.

    THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS BEYOND WHAT IS PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS dpHUE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON dpHUE’S CHOICE OF LAW PROVISION SET FORTH BELOW.

  16. Indemnity: You agree to indemnify and hold dpHUE and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (1) your use of the App, which includes but is not limited to the Client’s entry of information into the App via your device as described in these Terms; (2) your breach or violation of any of these Terms; and (3) your violation of the rights of any third party.

  17. Policies and Pricing: Because you agreed in Section 7 above to ensure that the Client reviews the Client Disclosures before any Order is placed, your Clients who buy Products through your Account on the App will be deemed to be dpHUE’s customers. Accordingly, all dpHUE rules, policies, and operating procedures concerning customer orders, customer service, and Product sales set forth in the Client Disclosures will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Products in accordance with our own pricing policies at any time. Product prices and availability may vary from time-to-time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular Product.

  18. Customer and Sales Information. We will own all right, title and interest (including all intellectual property rights) in and to all information, other than your and your Clients’ personal information, that is created or collected in connection with the App.

  19. Modification: We reserve the right to change or modify the terms and conditions contained in these Terms, at any time and in our sole discretion. Any changes or modifications will be effective upon notice of such changes to you. dpHUE may deliver notice by either of the following methods: (a) by posting a change notice or a revised set of these Terms in the “Account” section on the App and posting a notice of such change for a period of time on the App home page; or (b) by giving you notice of the change or modification through the App. Modifications may include, for example, changes in the scope of available commissions, commission amounts, payment procedures, and Account and App rules. YOUR CONTINUED USE OF THE APP FOLLOWING OUR POSTING OF A CHANGE NOTICE OR REVISED AGREEMENT IN ACCORDANCE WITH THIS SECTION WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. Any notice is deemed given to you when given or posted in accordance with this Section.

  20. Relationship of Parties: You and dpHUE are each an independent contractor, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether to a client or otherwise, that reasonably would contradict anything in this Section.

  21. Dispute Resolution; Arbitration. Please review this Arbitration provision carefully. It provides that any dispute between us arising out of these Terms must be resolved by binding arbitration, to the extent permitted by applicable law. Arbitration replaces the right to go to court and the right to have a jury decide a dispute. Under this provision, your rights may be substantially limited in the event of a dispute. You may opt out of this Arbitration provision by following the instructions below.

    By accepting these Terms, unless you opt out by following the instructions below, you agree that all disputes arising out of or in any way related to these Terms and/or your use of the App must be resolved by confidential, binding arbitration to the extent permitted by applicable law. To the extent permitted by applicable law, neither you nor dpHUE will have the right to litigate that dispute in court or to have a jury trial on that dispute. Pre-arbitration discovery will be permitted only as allowed by the arbitration rules referenced below. In addition, you will not have the right to participate as a representative or member of any class of claimants, unless any applicable law forbids the waiver of that right. The arbitrator's decision will generally be final and binding. Other rights that you would have in court may also not be available in arbitration. It is important that you read the entire arbitration provision carefully.

    For purposes of this arbitration provision, “dispute” shall be construed as broadly as possible, and shall include any claim, dispute or controversy (whether in contract, regulatory, tort or otherwise, whether pre-existing, present or future and including constitutional, statutory, common law, intentional tort and equitable claims) arising from or relating to these Terms and/or your use of the App, including but not limited to payment or non-payment of alleged commissions; the actions of yourself, dpHUE, or third parties; or the validity, enforceability, interpretation, or scope of these Terms or this arbitration provision. The term “dispute” includes disputes brought as counterclaims, cross claims, or third-party claims. To the extent permitted by applicable law, disputes may not be brought as part of a class action or other representative basis. IF YOU DO NOT OPT OUT, THEN YOU WILL HAVE WAIVED YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION RELATED TO THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW. In this arbitration provision, the words “we,” “us,” and “our” shall include dpHUE and any assignees of any of dpHUE’s rights, as well as dpHUE’s and its assignees’ respective affiliates, parents, subsidiaries, franchisees, vendors, suppliers, and further assigns.

    Any arbitration under this Arbitration provision shall be administered by the American Arbitration Association (“AAA”) under its rules applicable to the resolution of consumer disputes in effect when the dispute is initiated. Those rules are available at www.adr.org/rules or by calling the AAA at 1-800-778-7879. The arbitrator shall have no authority to hear any disputes on a class or representative basis. Neither you nor dpHUE may consolidate or join the disputes of other persons who may have similar disputes into a single arbitration. Any arbitration hearing that you attend will take place in the federal judicial district where you reside. dpHUE will not elect arbitration of any dispute that is filed as an individual matter by you in a small claims or similar court, so long as the dispute is pending on an individual basis in that court.

    A single, neutral arbitrator will decide any disputes. The arbitrator must be either a retired or former judge or a lawyer with no less than 10 years’ experience, selected in accordance with the AAA's rules. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act (“FAA”) and applicable statutes of limitations, will honor claims of privilege under applicable law, and will have the power to award to a party any damages or other relief provided under applicable law. Any party may choose to have a hearing and may choose to be represented by counsel. The arbitrator will issue an award in writing and, upon request, will provide a written explanation for the award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

    The party initiating an arbitration must pay the AAA’s initial filing fee, although you can ask the AAA to waive the filing fee and we will consider your request that we pay the filing fee on your behalf. dpHUE will pay any subsequent administration fees imposed by the AAA, and dpHUE will pay the arbitrator’s fee for up to one day of hearings. All other fees will be allocated as provided by the AAA's rules and applicable law. If you prevail in arbitration, dpHUE will reimburse you any fees paid to the AAA. However, even if dpHUE prevails, it will not seek reimbursement from you of any fees dpHUE paid to the AAA unless the arbitrator determines that your dispute was brought in bad faith. Each party shall bear its own costs of attorneys, experts, and witness fees, regardless of which party prevails in the arbitration. However, if applicable substantive law gives you the right to seek reimbursement of attorneys’ fees or other fees or costs, then that right shall also apply in the arbitration.

    You have the right to opt out of this arbitration provision, but you may only do so within thirty (30) days of acceptance of these Terms. In order to opt out, you must provide us written notice via email: info@dphue.com. You must inform us of your decision to opt out, and sign the notice. This arbitration provision shall survive termination by either party of this Agreement between you and dpHUE. This arbitration provision is made in connection with interstate commerce, and shall be governed by the Federal Arbitration Act, 9 USC Sections 1 through 16.

    If any specific part of this section 21 is determined to be void or unenforceable, the remainder of this section, and these Terms, will remain enforceable to the maximum extent permitted by law.

  22. Independent Investigation. You acknowledge that you have carefully read these Terms and agree to each term and condition contained herein. You understand that we may at any time sell Products on terms that may differ from those contained in these Terms.

  23. Responsibility for Taxes: You are solely responsible for all taxes arising from any commission or other amounts paid to you pursuant to these Terms. Neither federal, nor State, nor local income tax, nor payroll tax of any kind, will be withheld or paid by dpHUE on your behalf. You understand that you are responsible for paying, according to law and in a timely manner, any applicable taxes or withholding amounts.

  24. Privacy: As set forth in Section 7 above, the only person who may enter Client personal information via the App is the Client, and only after the Client has reviewed [and accepted] the Client Disclosures. This information may be protected by applicable laws regarding the collection, use, disclosure, protection, and retention of information (“Applicable Privacy Laws”). You are responsible for compliance with all Applicable Privacy Laws. You also acknowledge that you have read and consent to the [STYLIST PRIVACY NOTICE] and the [CCPA STYLIST PRIVACY NOTICE], which explain our practices and our expectations with regard to your personal information and Clients’ personal information. You agree that you will not disclose or cause to be disclosed to another party a Client’s personal information. You shall at all times protect and control the use of your login credentials, and you will immediately inform dpHUE of any loss of control of your login credentials or if you suspect that your login credentials were used improperly.

  25. Other Provisions:

    Notice.

    dpHUE may give notice by means of a general notice on the App, electronic mail to your email address, telephone or text message to any phone number provided in your Account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. You may give notice to dpHUE via electronic mail to info@dphue.com, or by written communication sent by first class mail or pre-paid post to our registered agent for service of process at DMP Color, LLC d/b/a dpHUE 60 South 6th Street, Suite 3900 Minneapolis, MN 55402. Notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone).

    General; No Assignment Permitted by You.

    You may not assign these Terms, by operation of law or otherwise, without dpHUE's prior written approval. dpHUE may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of dpHUE's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section is void. No joint venture, partnership, employment, or agency relationship exists between you, dpHUE or any third party as a result of these Terms or use of the App. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. dpHUE's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by dpHUE in writing.

    Term; Termination.

    The agreement created between us by these Terms will begin upon your acceptance of the Terms and will end when terminated by either of us. Either you or dpHUE may terminate these Terms at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. Upon termination of these Terms, (1) all licenses hereunder shall terminate, and (2) you will immediately quit using the App, and (c) Sections 1, 3, 4, 5, 8, 9, 10, 13, 14, 15, 16, 17, 18, 20, 21, 23, 24 and 25 of these Terms will survive such termination. DpHUE may withhold commission payments at termination if dpHUE, in its sole discretion, believes explicit provisions of these Terms have been breached and such commissions were earned in violation of these Terms.

    Scope of Terms.

    These Terms constitute the entire agreement and understanding between us with respect to the subject matter hereof and supersede all prior or contemporaneous written or oral agreements or representations between us.

    Injunctive Relief.

    You expressly agree and acknowledge that your breach of these Terms may cause irreparable harm to dpHUE, and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, dpHUE will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.

    Attorneys' Fees.

    In the event any action is commenced to construe or enforce any provision of these Terms, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action.

    Governing Law, Jurisdiction, and Venue.

    These Terms are governed by the laws of the State of Minnesota, without reference to its conflict-of-law principles. Any dispute (as that term is defined in section 21) arising out of or relating to these Terms or your use of the App must be brought as set forth in Section 21.

    Choice of Law.

    These Terms shall be governed by and construed in accordance with the laws of the State of Minnesota, U.S.A., without giving effect to any of Minnesota’s conflict of law principles.

    Severability.

    If any provision of these Terms or application thereof to any party or circumstances is determined to be invalid and unenforceable to any extent, any remaining valid and enforceable portion of that provision, and the remainder of these Terms, shall not be affected thereby, and any remainder of that provision and all other provisions herein shall remain valid and shall be enforced to the fullest extent permitted by law.

    Waiver.

    Our failure to enforce your strict performance of any provision of these Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these Terms. The failure of either party to enforce any right or remedy shall not be deemed a waiver of said right or remedy.