MODIFACE TERMS OF USE
These Terms of Use (“Terms”) contain legal obligations and form a legally binding contract between you and ModiFace, Inc. and its affiliates (“ModiFace”, “our”, “we”, “us”) regarding ModiFace’s Virtual Makeup Looks application which includes the Maybelline Beauty App for Microsoft Teams (the “Application”, as defined below).
You should read these Terms carefully before you purchase, download, or use the Application. These Terms contain important information about your legal rights, remedies, and obligations. In particular, sections 22, 23, 24, and 25 contain important limitations on, and exclusions of, our liability to you.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS SET FORTH IN THE SECTION ENTITLED “ARBITRATION AGREEMENT” BELOW, REQUIRES YOU TO ARBITRATE CLAIMS YOU MAY HAVE AGAINST MODIFACE ON AN INDIVIDUAL BASIS, MEANING YOU CANNOT BRING CLAIMS AGAINST MODIFACE IN COURT, AND CONFIRMS YOUR AGREEMENT TO A CLASS ACTION WAIVER IN ARBITRATION. IT AFFECTS YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.
Certain jurisdictions do not allow mandatory arbitration provisions in agreements. If such jurisdiction applies to you, some, this provision may not apply to you, and you may have other and/or additional rights.
If you do not agree to these Terms, you may not access or use the Application.
By adding or installing the Application via Microsoft Teams, or by obtaining, downloading, or using the Application, you agree that understand, accept, and agree to be bound by and to comply with these Terms and our Privacy Policy (https://modiface.com/legal/teams-privacy.html), which forms an essential part of these Terms. You may not modify these Terms by making any typed, handwritten, or any other changes to it for any purpose.
- The Application. In these Terms, “Application” means ModiFace’s Virtual Makeup Looks software application, any services, features, functionality or material or content that ModiFace provides on, through, or as part of that application, and any software, hardware or technology that ModiFace uses to provide any of those things. The Application is obtained through Microsoft Corporation’s Azure Marketplace or AppSource Marketplace and is for use in and with Microsoft Teams.
- Our Relationship. The Terms form a legally binding relationship between you and ModiFace. You confirm that: (a) you are the age of majority and can form a binding contract with ModiFace; (b) you accept these Terms; and (c) you agree to comply with these Terms.
- Authority. If the Customer is a corporation, organization or business entity, and you are entering into these Terms for the Customer, you represent and warrant that you are an authorized representative of the Customer and that you have the authority to legally bind the Customer, and its affiliates, to these Terms. If you do not have such authority, or if you do not agree with any part of these Terms, you must not accept these Terms and may not use the Application. In these Terms ”Customer” and “you” refer to the individual using the Application and, if applicable, to the business entity (and its affiliates) that the individual represents.
- Parties; Microsoft Not a Party. You acknowledge and agree that these Terms are between you and ModiFace, not with any third party, and that ModiFace is responsible for the Application. Without limiting the previous sentence, you acknowledge and agree that Microsoft Corporation is not a party to these Terms and is not responsible for either party’s actions or obligations under these Terms. Microsoft’s relationship with you is solely governed by Microsoft’s agreement(s) with you.
- Changes to Terms. We may change the Terms on one or more occasions. All changes are effective immediately upon posting and apply to your continued access to and use of the Application. We may post reminders and summary information about material changes to these Terms, but you are responsible for reviewing them. You must review these Terms periodically to be aware of any such changes, and your continued use will mean your acceptance of those changes. If you do not accept any changes to the Terms, you must stop accessing and using the Application.
- Licence. The Application is licensed, not sold. Subject to your compliance with these Terms, ModiFace grants you a non-exclusive, limited, revocable licence to use the Application in accordance with these Terms for your own use and business purposes. This licence is not transferable or sub-licensable except as expressly permitted under these Terms or applicable law. ModiFace reserves all rights not expressly granted in these Terms.
- Users. If you allow any person to use the Application or provide or access Customer Data (any such person is a “User”), you will control all Users’ access to and use of the Application, and you are responsible for any use of the Application that does not comply with these Terms.
- Data and Privacy. Please see our Privacy Policy, available at https://modiface.com/legal/teams-privacy.html for more information on what information the App collects and processes, and what if any personal information we collect from you and how we use and share that data. We will collect, use, and disclose your personal information as set out in that Privacy Policy, and you consent to us doing so.
- Rules. Whenever you access or use the Application, in addition to these Terms you must comply with all applicable laws, including but not limited to, privacy laws, and all policies, rules and procedures that we implement with respect to the Application from time to time.
- Prohibited Activities. In addition to any other prohibitions in these Terms, you must not do any of the following when accessing and using the Application:
- use the Application for any purpose that is unlawful or prohibited by these Terms;
- copy, modify, hack, reverse engineer, adapt, create derivative works from, decompile, decode, disassemble, decrypt, or take any benefit from the Application, or attempt to do so;
- distribute, resell, sublicense, republish, transmit, display, rent, lease, lend, or otherwise provide access to the Application (or any part of it), or use the Application to offer hosting services to a third party;
- access or use the Application to build a competitive product or service;
- separate and run parts of the Application on more than one device
- install or use any third-party software or technology in any way that would subject the Application or ModiFace’s intellectual property or technology to any other licence terms;
- work around any technical limitations in the Application;
- remove, circumvent, disable, damage, or otherwise interfere with any security features, access control technology, or technological protection mechanisms, or features that enforce limitations on use of the Application, that may be included in or as part of the Application;
- interfere with the functioning of the Application;
- use the Application in any manner that could damage, disable, overburden, or impair the Application or interfere with any other party's use of the Application;
- remove, modify, alter, or deface any proprietary notices, labels, or marks from the Application.
- use the Application for any purpose that is unlawful or prohibited by these Terms;
- Export Restriction. The Application may be subject to Canadian or other export control laws. Customer must not, directly, or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule, or regulation.
- Suspension. In addition to any other available remedies, ModiFace may suspend or terminate your access to and use of the Application if the Developer or any of your Users breaches these Terms. We will make reasonable efforts to give reasonable notice before suspending your access to or use of the Application. If we suspend or terminate your access to and use of the Application, you must not access or use the Application under a new name.
- Security. ModiFace has taken reasonable steps to make the Application secure, but due to the inherent open nature of the Internet, ModiFace cannot guarantee that communications to, on or through the Application will be free from unauthorized access by third parties such as hackers, and your access to and use of the Application demonstrates your assumption of this risk.
- Viruses. ModiFace has taken reasonable steps to ensure that the Application is free of computer viruses or other harmful or destructive software programs. Nevertheless, you and your Users are solely responsible for implementing and maintaining, at their own cost, appropriate anti-virus, and other protective software on the devices from which they access and use the Application. Without limiting any other part of these Terms, to the maximum extent permitted by applicable law, ModiFace disclaims all liability for any computer viruses or other harmful or destructive software programs that you or any User may download from or through the Application.
- Equipment. You are solely responsible for ensuring that you have the necessary hardware, software, equipment, technology support and communications connections necessary to enable you to access and use the Application. ModiFace will have no responsibility for the workings of your computer, IT, or telecommunications equipment, software, or connections.
- Availability and Errors. To the maximum extent permitted by applicable law, ModiFace makes no commitments or guarantees regarding the Application’s availability or functionality. You acknowledge that your access to and use of the Application might be interrupted and will not be free of errors, that the Application may contain bugs, errors, inaccuracies or other limitations, and that the Application may be unavailable from time to time due to routine maintenance, upgrades, hardware or software malfunctions, repairs, power outages, hackers, denial of service attacks, unforeseeably large service demands, or other reasons beyond ModiFace’s control. Where reasonably possible, ModiFace will provide prior notice through Application of any scheduled service interruptions. You agree that we have no liability for any loss, damage, or inconvenience caused by your inability to access or use the Application during any period of unavailability. Nothing in these Terms will be construed to obligate ModiFace to maintain and support the Application or to supply any corrections, updates, or releases.
- Proprietary Rights. The Application is protected by copyright, confidentiality, and other laws. As between ModiFace and you (and any Users), ModiFace owns all right, title and interest in and to all aspects of the Application and all upgrades, modifications, customizations and additions to the Application, and all intellectual property rights in and to all of the foregoing. You and your Users do not acquire any proprietary rights in or to the Application except the limited rights set out in these Terms.
- Trademarks. We own our name, logo, and all our other trademarks and trade names appearing on or in association with the Application. Unless otherwise indicated, all other trademarks appearing on the Application are owned by third parties and are used under licence.
- Modifications. ModiFace may at any time change, suspend, or discontinue the Application (including the Application’s content, features, functionality, user interface or other aspects), in whole in part, all without notice or liability to you. ModiFace will not be liable to you or any third party for any such change, suspension, or discontinuance of the Application.
- Updates. The Application may automatically download and install updates from ModiFace from time to time. These updates are designed to improve, enhance, and further develop the Application, and may take the form of bug fixes, new or enhanced functions, and completely new versions. You agree to receive such updates (and permit ModiFace to deliver these to you) as part of your use of the Application. If you do not want the Application to be automatically updated, you may be able to set your device settings to prohibit automatic updates.
- Feedback. If you provide any ideas, suggestions or recommendations regarding the Application or ModiFace’s services or technology, you acknowledge and agree that you do so voluntarily and that ModiFace is free to, and you grant ModiFace a non-exclusive right to, make, use, modify, distribute, and commercialize any such ideas, suggestions or recommendations as part of ModiFace’s products and services (regardless of whether those things are marked or otherwise designated as confidential), all without any further notice to or consent from you, and without payment of royalties or other consideration to you.
- Disclaimers. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE”; AND (II) MODIFACE DOES NOT PROVIDE ANY, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMANCE WITH DESCRIPTION), EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS.
IN PARTICULAR, MODIFACE DOES NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE APPLICATION WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR; (C) THE APPLICATION OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE APPLICATION WILL BE CORRECTED.
WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE APPLICATION FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION OBTAINED THROUGH THE APPLICATION BEFORE RELYING ON IT.
Certain jurisdictions do not allow the disclaimer or exclusion of certain warranties. If these laws apply to you, some, or all the exclusions in this provision may not apply to you, and you may have additional rights.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODIFACE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MANDATARIES AND REPRESENTATIVES (COLLECTIVELY, “MODIFACE PARTIES”) WILL NOT BE LIABLE TO YOU OR ANY USERS OR ANY THIRD PARTY FOR (A) DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, AGGRAVATED, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS); (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF OPPORTUNITIES OR CUSTOMERS, LOSS OF USE, LOSS OF GOODWILL; (C) ANY BUSINESS INTERRUPTIONS; (D) ANY LOSS OF OR DAMAGE TO DATA; (E) ANY COST OF REPLACEMENT PRODUCTS OR SERVICES; OR (F) ANY LOSS OF DAMAGE TO REPUTATION OR GOODWILL, ARISING DIRECTLY OR INDIRECTLY FROM THE ACCESS TO OR USE OF (OR THE INABILITY TO ACCESS OR USE) THE APPLICATION. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE MODIFACE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES. YOU HEREBY WAIVE, RELEASE, AND FOREVER DISCHARGE THE MODIFACE PARTIES FROM AND AGAINST ALL OF THE EXCLUDED DAMAGES.
IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE MODIFACE PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
Certain jurisdictions do not, by law, allow the exclusion or limitation of certain damages. If these laws apply to you, some or all the exclusions or limitations set out in this provision may not apply to you, and you may have additional rights.
- Arbitration Agreement YOU AND MODIFACE AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, both you and ModiFace agree that any controversy, claim, action, or dispute between you and ModiFace, its affiliated companies and their respective officers, directors, employee, agents or contractors arising from or relating to the use of the Application (“Dispute”), will be resolved by this dispute resolution procedure and arbitration agreement (“Arbitration Agreement”).
Informal Dispute Resolution. Prior to initiating any arbitration, you must first present any Dispute to ModiFace by contacting [email protected] and [email protected] with subject “INFORMAL DISPUTE RESOLUTION” to allow for an opportunity to resolve the Dispute. You or we may initiate arbitration if your Dispute cannot be resolved within 60 days.
Both you and ModiFace agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party. Our mailing address is 7 St. Thomas Street, Unit 502 Toronto, Ontario, Canada, M5S 2B7.
Right to Bring Small Claims in Court. Instead of arbitration, either you or ModiFace may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, if it is brought and maintained as an individual claim.
How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the Canadian Arbitration Association (“CAA”) pursuant to its Canadian Arbitration Association arbitration rules (“CAA Rules”), as modified by the Arbitration Agreement. The CAA Rules are available on the CAA’s website https://canadianarbitrationassociation.ca, or by calling the CAA at 1-800-856-5154. In the event the CAA is unavailable or unwilling to hear the Dispute, the parties shall agree to another arbitration provider.
Payment of all filing, administration and arbitrator fees will be governed by the CAA’s Rules. If applicable, ModiFace will reimburse those fees in the amount up to $10,000. ModiFace also waives its own right to seek lawyers’ fees and costs in arbitration. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the region where you live or at another mutually agreed location.
Waiver of Right to Bring Class Actions and Representative Claims. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the Dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and ModiFace agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and ModiFace hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any arbitration.
Other Terms. The Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with the Federal Commercial Arbitration Act and, where applicable, laws of the Province of Ontario. The terms of the Arbitration Agreement provisions shall survive after your relationship with ModiFace and/or participation in the program ends. Any arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.
- Release. WITHOUT LIMITING ANY OTHER WORDING IN THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE THE MODIFACE PARTIES FROM ALL CLAIMS, ACTIONS, LIABILITIES AND DAMAGES OF ANY KIND RELATING TO OR ARISING FROM YOUR ACCESS TO AND USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE APPLICATION.
- Indemnity. You will defend, indemnify and hold harmless the ModiFace Parties from and against all claims, actions, suits, proceedings, losses, liabilities, damages, costs and expenses (including litigation costs, expenses and actual legal fees and disbursements) resulting from or related to, directly or indirectly, any violation of these Terms by Customer.
- Entire Agreement. These Terms and our Privacy Policy constitute the whole legal agreement between you and ModiFace and govern your use of the Application and completely replace any previous agreements between you and ModiFace in relation to the Application.
- Force Majeure. ModiFace will not be liable for any non-performance or delay in its performance that is due wholly or in part to any cause beyond its reasonable control.
- Law and Jurisdiction. These Terms will be governed by and construed in accordance with the laws in effect in Ontario, Canada. The courts of Ontario, Canada (including the Federal Court of Canada) will have exclusive jurisdiction over any dispute that may arise out of or in connection with these Terms (provided that ModiFace may apply to any court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction), and any such dispute will be resolved individually, without resort to any form of class action.
- Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
- Independent Contractors. The parties are independent contractors and neither party is the agent or partner of the other party.
- Waiver. Failure by either party in exercising any right, power or privilege under these Terms will not act as a waiver, nor will any single or partial exercise thereof preclude either party from exercising any right, power, or privilege.
- Severability. If any portion of these Terms is invalid or unenforceable, the invalidity or unenforceability will attach only to that portion of the Terms, and the remainder of the Terms will remain in full force and effect.
- Contact Us. If you have feedback, comments, questions, or other communications about the Application, please contact us:
ModiFace, Inc.
7 St. Thomas Street, Unit 502 Toronto, Ontario, Canada, M5S 2B7
[email protected]
