Terms of Services

These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between Color of Sales, LLC (“Company”), and its clients (each a “Client”) who purchase and/or attend a course from Company by entering into a Course Enrollment Agreement (“Course Enrollment Agreement”) with Company. These Terms of Service are expressly incorporated into each Course Enrollment Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Course Enrollment Agreement. By signing a Course Enrollment Agreement or otherwise receiving any Courses from Company, Client, including all of Client’s participants, agrees to be bound by these Terms of Service.

1. Relationship of the Parties. In providing the Course, Company (and its representatives) will be acting as an independent contractor and not as an agent, partner, employee or representative of Client. Nothing in the Course Enrollment Agreement or these Terms of Service shall be construed to create a partnership, joint venture, employment relationship, or fiduciary relationship between the parties.
2. Confidentiality of Client Information. In connection with the provision of the Course, Client or Client’s designated third-party representatives may provide information regarding Client (“Client Information”) to Company. Except as consented to in writing by Client or as required by applicable law or court order, Company will maintain the confidentiality of all Client Information, and will use the Client Information for the sole purpose of providing the Course; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party. Company agrees to control the use and disclosure of Client Information with diligence and care and to treat the Client Information with the same level of protection as it affords its own confidential information of a similar nature. Company may share Client Information with its agents and representatives who reasonably need to know such information for the sole purpose of performing Company’s obligations under the Course Enrollment Agreement.
3. Course Content. The contents of Company Courses, including all text, images, graphics, logos, video, audio, software and other content (collectively, “Course Content”), are protected under both United States and international copyright, trademark, patent, trade secret and other intellectual property laws. All Course Content is the sole and exclusive property of Company. Unauthorized copying or use of the Course Content will violate intellectual property rights and/or other laws. Client shall not use, reproduce, modify, transmit, display, publish, sell, create derivative works, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Course Content.
4. Default Interest Fees and Collection Costs. All fees and expenses required to be paid by Client to Company for the Courses shall be due in accordance with the payment terms agreed upon in the Course Enrollment Agreement. Any fees or expenses remaining unpaid from the start date of the applicable Course shall bear interest at the rate of 1.5% per month or the maximum allowable interest rate, whichever is lower, until fully paid. Further, Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from Company, Company may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and/or (iii) file a civil legal action to collect the amounts owing. Client agrees to pay all costs incurred by Company in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees and reasonable attorneys’ fees, whether incurred prior to, during or subsequent to any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection or appellate proceeding.
5. Termination. Either party may terminate the Course Enrollment Agreement and any Courses (a) for any reason or no reason upon at least thirty (30) days prior written notice to the other party; (b) with cause following five (5) days prior written notice to the other party regarding the other party’s uncured material breach of any covenant, obligation, representation or warranty of the Course Enrollment Agreement or these Terms of Service; or (c) with cause immediately in the event of any act of fraud, gross negligence, reckless or willful misconduct, felonious conduct, or in the event the other party is insolvent or files for bankruptcy. Company also reserves the right to terminate the Course Enrollment Agreement and any Courses immediately in the event Company discovers information regarding Client or its agents or representatives that is counter to Company’s business or financial interests, reputation or goodwill, in Company’s sole and absolute discretion. In the event of any termination, Courses are non-refundable, and Client shall be responsible for all fees and costs agreed to in the Course Enrollment Agreement. The confidentiality obligations of Company set forth in Section 2 of these Terms of Service shall survive for a period of three (3) years after the termination of the Course Enrollment Agreement or completion of the Course.
6. Return or Destruction of Client Information. Upon termination of the Course Enrollment Agreement for any reason, Company will promptly return, or, at the election of Client, destroy, all Client Information and other property of the Client, if any, then in Company’s possession or control. Client acknowledges and understands that Company’s policy is to delete, destroy or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the on-going performance of Course after six (6) months of receipt or last use. Company shall have no obligation to maintain records for Client other than what is necessary to provide the Course. Notwithstanding anything else herein to the contrary, Company, at its sole discretion, may retain copies of its work product and supporting information for its records.
7. Limited Warranty. Company represents and warrants that it will provide the Courses in a diligent, professional and competent manner in accordance with industry standards, utilizing personnel with a level of skill commensurate with the Courses to be provided. Company MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE COURSES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.
8. Limitation of Liability.  IN NO EVENT WILL COMPANY BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  MOREOVER, COMPANY’S TOTAL LIABILITY UNDER THE COURSE ENROLLMENT AGREEMENT AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO COMPANY FOR THE APPLICABLE COURSE OR PURSUANT TO THE COURSE ENROLLMENT AGREEMENT, WHICHEVER IS LOWER.
9. Basis of the Bargain. The limited warranty and disclaimer, exclusive remedies, and damages cap set forth above are fundamental elements of the basis of the agreement between Company and Client. Company would not be able to provide the Courses to Client on an economic basis without such limitations. Furthermore, the limitations or exclusions of warranties, remedies or liability contained in these Terms of Service shall apply only to the extent permissible under applicable law, which may vary from state to state.
10. Force Majeure. If the provision of the Courses or any other obligation under the Course Enrollment Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, and/or work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
11. Integration and Severability. The Course Enrollment Agreement and these Terms of Service represent the complete and exclusive agreement between Company and Client and supersedes all prior communications, whether written or oral, relating to the subject matter hereof. No amendment or modification to the Course Enrollment Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. If any provision of the Course Enrollment Agreement or these Terms of Service is determined by a court of competent jurisdiction to be invalid or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability. All other terms hereof and thereof shall remain in full force and effect.
12. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither Company nor Client may assign all or a portion of its rights and obligations here under without the prior written consent of the other party, except that Company may assign all or a portion of its rights and obligations here under to an affiliate of Company whether now existing or hereafter created (but such assignment will not relieve Company of any obligation under this Agreement). Any assignment in contravention of this provision will be void.
13. Modifications.  These Terms of Service may be amended and updated from time to time at the sole discretion of Company.  Modified versions of these Terms of Service will be considered effective as of the date and time posted to Company’s website.  Client’s continued use of the Courses after such modifications are posted will signify Client’s continued acceptance of, and agreement to be bound by these Terms of Service, as modified.
14. Arbitration.  Any controversy or claim arising out of or relating to the Course Enrollment Agreement or these Terms of Service, or the making, performance or interpretation thereof, other than a claim by Company for injunctive or equitable relief, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  The arbitration shall be held in Salt Lake County, Utah.  Any judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy.
15. Legal Disputes.  In the event of any legal dispute (including arbitration) regarding the interpretation or enforcement of the Course Enrollment Agreement or these Terms of Service, the prevailing party in such dispute shall be entitled to recover from the other party its costs and expenses incurred in such dispute, including reasonable attorneys’ fees, court/arbitration costs, and expert witness fees, the amount of which shall be fixed by the court/arbitrator and made a part of any judgment rendered.