Terms of Use

Last Update: November 03, 2020

Room by Color is a purchasing agency that facilitates the selection and procurement of finish products and materials for interior renovations. Room by Color (“Room by Color”, “we”, “us”, or “our”) is a New York State registered d.b.a. (doing business as) of Massforma Architecture, PLLC. The following terms and conditions (the “Terms of Use”) form a binding agreement between you and Room by Color, and govern your use of the website located at www.roombycolor.com (the "Site”), the services offered through the Site, and any orders that you place with us (collectively, "Services”).  Our Services include selecting products (includes products, materials, fixtures, hardware, paints, wall coverings, forming a "Curation"), assembling product information for online access ("Online Curation Page"), sending you physical material samples ("Sample Kit"), purchasing products on your behalf (each invoiced group of products represents a "Purchase Order"), coordinating their deliveries with you and third party vendors, and connecting you with third party professionals and resources ("Support Services").


By using the Site and Services, you affirm that you are able and legally competent to agree to and comply with these Terms of Use. If you do not agree to these Terms of Use or if you are not legally competent to agree to them, then you may not use the Site or Services. You accept email as the primary form of communication between Room by Color, you, your Contractor, and any third party concerning your order status and any other information related to the Services. You also agree to provide, keep current, maintain, and monitor your email and email address with Room by Color.

Please note that these Terms of Use contain provisions that govern the resolution of claims between Room by Color and you. Please see the Dispute Resolution section for complete details.

UPDATES TO TERMS OF USE AND THE SITE OR SERVICES

Room by Color may update the Terms of Use from time to time. Be advised to review the Terms of Use periodically for any updates. At our discretion, we may also notify you of certain updates by email associated with your account. Updates will be effective immediately for new users of the Services. For existing users of the Services, updates will be effective thirty (30) calendar days following our posting of the updates.

We reserve the right to modify or discontinue the Site and Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and Services. If you object to any such changes, your sole recourse will be to contact us to discuss available options depending on the status of your order and/or account. Continued use of the Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified.

 

CURATION, SAMPLE KIT AND ONLINE CURATION PAGE

Our Services are not substitutes for professional design services offered by a "Design Professional" such as an Architect or Interior Designer. The compatibility of products for your project must be independently verified by you, your Design Professional, and/or your Contractor. Your Sample Kit includes ninety-day (90-day) online access to the Online Curation Page and samples of select products contained in your Curation. The samples contained in the Sample Kit provide approximate representations of the texture and color of product finishes in the Curation. Actual product's finish may vary. Samples are not available for all products. The product information included in the Sample Kit provides partial information about a product's appearance, size and/or function. Additional product information is available on the Online Curation Page and after placing a Deposit for Purchase Order(s).

Ordering a Sample Kit does not require that the customer place a Deposit for continuing service on the Curation by Room by Color. 

 

PURCHASE ORDER, COORDINATION AND DELIVERY

Purchase Orders issued by Room by Color follow the agency relationship between you and Room by Color. You understand that you are not purchasing products from Room by Color. Rather, you are purchasing from third party vendors independent of Room by Color, and the vendors remain responsible for their obligations in their sale contracts with you. By fully funding the Purchase Order issued by Room by Color, you grant us the authority to (1) purchase products in the Purchase Order on your behalf; (2) enter into contracts with third party vendors on your behalf toward procuring the products in the Purchase Order; and (3) withhold funds as payment for our services consistent with our compensation terms. Room by Color shall retain records of all transactions, including all contracts, warranties and receipts.

Room by Color reserves the right to benefit from financial arrangements and professional trade programs offered by any third party vendor, including any discounts, coupons or special pricing. We reserve the right not to disclose the terms and details of such arrangements or programs. On request, we shall furnish the contract(s) and receipt(s) documenting the vendor's retail price(s) for the Purchase Order product. 

Room by Color requires a nonrefundable monetary commitment ("Deposit") prior to starting Purchase Order(s) for the Curation. The Deposit is credited to the final Purchase Order balance and extends your access to the Online Curation Page until the completion or termination of all Purchase Orders for the Curation. Outstanding Purchase Orders remaining unpaid beyond ninety (90) days of the Deposit are subject to cancellations and your forfeiture of the Deposit. Until the remaining balance for the Purchase Order is fully received, we make no guarantee of the availability of any product in the Purchase Order.

In processing a Purchase Order, Room by Color may contract with third party vendor(s) for assembly or delivery services. We track and coordinate the delivery of each product from their respective vendor to you. You are responsible for designating a Mover to receive curbside deliveries (a.k.a. "Sidewalk Deliveries") and safely transport them to a designated storage area.  You are responsible for immediately inspecting all deliveries upon arrival for damages prior to accepting the deliveries, and to document any damages and report them immediately to us and to the delivery company. Room by Color is not liable for damages incurred by the vendor or the vendor's delivery company prior to you receiving the delivery.

 

You are responsible for obtaining all necessary approvals to safely transport or store the delivered product(s). Room by Color is not responsible for additional costs, delays, damages, or penalties resulting from your failure to designate a Mover or your failure to obtain the necessary approvals. You and your Mover are responsible for all associated moving and storage costs, including but not limited to costs associated with labor, equipment, storage, permits, and insurance required to safely transport and store the product at the final destination. You are responsible for following the appropriate care and storage instructions from the vendor or manufacturer.  Please contact us if you need assistance obtaining those instructions. 

Room by Color does not warrant any product purchased through us. Immediately document and report to us all damages or defects upon discovery so we may promptly assist you in finding a resolution.

 

SUPPORT SERVICES

Our Support Service refers you to licensed and insured Contractors and Architects who can work with Curations from Room by Color. We do not warrant the quality or performance of the services performed by any Contractor or Architect regardless if the Contractor or Architect is referred by us.

 

ACCEPTING ORDERS AND OUR RIGHT TO SUSPEND, MODIFY OR CANCEL

The receipt of an order from you, whether it be for the Sample Kit, Purchase Order (with a Deposit) or Support Service, does not constitute the acceptance or availability of the order by Room by Color. Verification of information or qualifications may be required prior to the acceptance of an order. Room by Color reserves the right, in our discretion, to limit, postpone or cancel an order for any reason, or to suspend your account, your use of the Services, as necessary to protect the security or operation of the Services. Your order status, including acceptances, postponements, or cancellations, are communicated through your registered email. Your full payment and our successful delivery of each Sample Kit and Purchase Order constitutes a completed transaction.

Room by Color makes no guarantee that the products and materials represented in the Sample Kit are available at the time of the Purchase Order. If you find the estimated delivery date for a specific product unacceptable, you must contact us within twenty-four (24) hours of receiving the estimated delivery date to modify the Purchase Order. Room by Color reserves the right to make modifications or substitutions for each Purchase Order. You may decline the modifications or substitutions initiated by us within forty-eight (48) hours of receiving notice from us. You acknowledge that modifications to the Purchase Order may require price adjustments and fees, and may suspend the Purchase Order partially or entirely until price adjustments and/or additional fees are paid in full. Room by Color is not responsible for project delays or other consequences resulting from the cancellation, suspension, or modification of the Purchase Order.

 

RETURN AND REFUND POLICY

Return, refund or replacement of products, whether damaged, defective or otherwise, are subject to the warranty and return policies of their respective vendor and manufacturer. At your request, Room by Color shall furnish relevant records for your case with the vendor and/or manufacturer, and offer additional assistance to you at our discretion. Regardless of our level of involvement, we do not guarantee the satisfactory resolution of your case with the vendor or manufacturer. Room by Color reserves the right to retain our compensation for services already performed, regardless of any returns, refunds or other resolutions reached between you and the vendor or manufacturer.

Carefully inspect all deliveries prior to accepting and moving them into your jobsite. Immediately document and report to us all damages or defects upon discovery so we may promptly assist you in finding a resolution. Follow installation, care and warranty instructions and policies from the product's vendor and manufacturer. Installed products are typically not eligible for refunds.

Unless otherwise noted, we do not accept returns or offer refunds for successfully delivered Sample Kits. We do not refund the Deposit if you cancel a Purchase Order. Refund of the Purchase Order balance is not guaranteed if you cancel the Purchase Order after the order has commenced. Modifications to a Purchase Order may be eligible for a refund after accounting for price variables and fees. Unless otherwise noted, we issue the refund within thirty (30) calendar days of our decision to issue the refund.

 

INTELLECTUAL PROPERTY

You understand and acknowledge that the software, code, and proprietary methods and systems used to provide the Services (“Our Technology”), and the content, information, drawings and materials made available or displayed by us through the Site and Services (collectively, “Our Content”) are: (a) copyrighted by us or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. Neither Our Content nor Our Technology may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. Subject to these Terms of Use, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access Our Content, and Our Technology solely for your own personal, noncommercial use in connection to using our Services. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Content or Our Technology and you may not remove or alter any such notice, information, or restriction. Nothing in these Terms of Use grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Services according to these Terms of Use. Furthermore, except for the limited license above, nothing in these Terms of Use will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology or Our Content. Certain of the names, logos, and other materials displayed in the Site and Services constitute trademarks, trade names, service marks or logos (“Marks”) of Room by Color or other entities. Ownership of all such Marks and the goodwill associated with such Marks remains with us or those other entities.  You are not authorized to copy, modify, or otherwise use our Marks. Any use of third party software provided in connection with the Services will be governed by such third parties’ licenses and not by these Terms of Use.

 

RULES OF CONDUCT

You agree not to (i) take any action or (ii) make available any content on or through the Site and Services that: (A) violates any third party right, including any intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (C) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (D) involves commercial activities and/or sales without our prior written consent; (E) impersonates any person or entity; (F) interferes with or attempts to interfere with the proper functioning or security of the Site and Our Technology in any way; or (G) attempts to engage in or engage in, any potentially harmful acts that are directed against Room by Color, Our Technology, the Site, or the Services.

 

THIRD PARTY WEBSITES

The Site may contain links to third party websites ("Other Sites") that are not under Room by Color's control.  Room by Color makes no claim and accepts no responsibility regarding the quality, nature or reliability of the Other Sites that are accessible by hyperlinks from the Site or link to the Site. Inclusion of such links in the Site does not imply endorsement by Room by Color of Other Sites or any association with the operators of such Other Sites. The Services may also contain links to websites that are affiliated with us but which operate under different terms of use. You are responsible for viewing and abiding by the privacy statements and terms of use posted at any third party sites. You agree that in no event will we be liable to you in connection with any websites, content, products, materials, or practices of any third party.

 
 

DISCLAIMER OF WARRANTIES

The Services and all content, products, materials, and services included on or otherwise made available to you through the Services are provided by Room by Color “with all faults” and on an “as is” and “as available” basis, unless otherwise specified in writing. Room by Color makes no representations or warranties of any kind, whether express or implied, as to the operation of the Services or any content, products, or services included on, or otherwise made available to you through, the Services, unless otherwise specified in writing, including without limitation any warranties of merchantability, fitness for a particular use or purpose, non-infringement, quiet enjoyment, and accuracy. You expressly agree that your use of the Services, products and materials purchased through the services is at your sole risk. We make no warranty that the products or the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the products or the Services, or that defects in the products or the Services will be corrected. We specifically disclaim any liability associated with the use of the products and you agree that you will not sue Room by Color for any claim related to any products purchased through the Services. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material in any way related to the Services and/or Our Content.  No advice or information, whether oral or written, obtained by you from us through the Services, or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms of Use.

Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the maximum permitted under such applicable law.

LIMITATION OF LIABILITY

You acknowledge and agree that Room by Color is only willing to collect payment, facilitate the fulfillment of orders, and provide access to the Services if you agree to certain limitations of our liability to you and to third parties. You understand that to the extent permitted under applicable law, in no event will we or our officers, employees, directors, parents, subsidiaries, affiliates, agents, or licensors be liable for any indirect, incidental, special, consequential or exemplary damages, including without limitation damages for loss of revenues, profits, goodwill, use, data, lost opportunities, or business interruptions or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to your use of or access to, or the inability to use or to access, the Services, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute, or otherwise. We will not be liable for any damages arising from the products or for any information appearing on any other site linked to the Services. If you are dissatisfied with any portion of the Services, your sole and exclusive remedy is to discontinue use of the Services. Our total liability to you for all claims arising from or related to Our Services is limited, in aggregate, to the greater of (i) the total amount of your Sample Kit, or (ii) the retail-priced amount of the affected product in your Purchase Order, or (iii) one hundred U.S. dollars (U.S. $100).

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

Without limiting the foregoing, under no circumstances will we or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including without limitation internet failures, telecommunication equipment failures, computer equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.

 

INDEMNITY

You agree to indemnify, defend and hold harmless Room by Color, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants, licensors and agents, from and against any and all third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Site or the Services including products and materials ordered through us; (ii) your violation of these Terms of Use; (iii) your violation of any rights of any other person or entity; (iv) any content, information or materials you upload to the Services; or (v) any viruses, Trojan horses, worms, time bombs, spyware, malware, bots or other similar harmful or deleterious programming routines input by you into the Services.

 

DISPUTE RESOLUTION

Please read this section carefully. It is part of your contract with us and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.

Application of Dispute Resolution Process.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms of Use or the use of the Services that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis according to the process described herein. Unless otherwise agreed to, all arbitration proceedings will be held in English. This dispute resolution process, including binding arbitration, applies to you and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, assigns, suppliers and licensors as well as all authorized or unauthorized users or beneficiaries of the Services.

 

Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to us should be sent to our office. After the Notice is received, the parties may attempt to resolve the claim or dispute informally. If the parties do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

 

Arbitration Rules. Arbitration will be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties will agree to select an alternative ADR Provider. The rules of the ADR Provider will govern all aspects of the arbitration, including without limitation the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms of Use. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org. The arbitration will be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is ten thousand U.S. dollars (US $10,000) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S. the arbitrator will give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that we made to you prior to the initiation of arbitration, we will pay you the greater of the award or two thousand five hundred U.S. dollars (US $2,500). Each party will bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration and will pay an equal share of the fees and costs of the ADR Provider.

Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration will be conducted by telephone, online and/or based solely on written submissions; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

Time Limits. If either party pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of the parties, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon the parties.

Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes will be resolved by arbitration under this Dispute Resolution section. Arbitration procedures are typically subject only to very limited review by a court. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, the parties waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this Dispute Resolution section must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.

Confidentiality. All aspects of the arbitration proceeding, including without limitation the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Dispute Resolution section, to enforce an arbitration award, or to seek injunctive or equitable relief.

Severability. If any part or parts of this Dispute Resolution section are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Dispute Resolution section will continue in full force and effect.

Right to Waive. Any or all of the rights and limitations set forth in this Dispute Resolution section may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Dispute Resolution section.

Survival. This Dispute Resolution section will survive the termination of your relationship with us.

Small Claims Court. Notwithstanding the foregoing, either party may bring an individual action in small claims court.

Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Dispute Resolution section.

Claims Not Subject to Arbitration. For any claim that by law is not subject to arbitration, we and you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state or federal courts located in New York City.

 
 

GENERAL TERMS

These Terms of Use and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. These Terms of Use are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms of Use to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. Any delay or failure by us to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. These Terms of Use constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersede all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of the Terms of Use will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms of Use will continue in full force and effect.

SURVIVAL

Even after your rights under these Terms of Use are terminated, all provisions of these Terms of Use which by their nature should survive, will survive, including without limitation ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability.

 

CONTACT

Massforma Architecture, PLLC dba Room by Color 
33 West 60th Street, Floor 2, New York, NY 10023
support@roombycolor.com
(212) 333-3022