Last modified: January 3, 2020
Mens Vitality Products LLC, a Delaware limited liability company (“we”, “us” or “our”), is providing our websites, including but not limited to mobile and online versions of www.everydaymale.com and any related mobile applications or email, text and other electronic messages between you and us (collectively, “Website”) with the express condition that users (“you” or “user”) agree to be bound by the terms and conditions set forth in these TOU. These TOU constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to our Website, the content, products or services provided by or through our Website. We reserve the unilateral right to change any terms and conditions of these TOU at any time, without notice to you, and it is your responsibility to consult the most recent version of these TOU (not an older cached version) each time you view our Website. Use of our Website constitutes your acceptance of all of the terms and conditions contained in these TOU, in their current form or as they may be modified. Please review these TOU carefully. If you do not agree to these terms, you may not use our Website. Our Website is intended for viewing by users in the United States. If you are in another country, local laws may not permit access to the information contained in our Website.
YOU AGREE THAT BY USING OUR WEBSITE, YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
Description of Services
Our Website provides users access to certain men’s health information and the ability to purchase certain nutritional supplement and other related products (the “Services”), including but not limited to EveryDay Male®, Men’s Probiotic, EveryDay Omega® and other related products (each a “Product” and collectively, the “Products”).
We assume no responsibility or liability for the timeliness, deletion or failure to store any user communications or personalization data or settings. All such risks shall be borne by the user.
Medical and Health Disclaimer
Our Website does not provide or contain medical advice, diagnosis or treatment information. The contents of our Website, including text, graphics, images, information and other materials contained on our Website regardless of the originating source (collectively, “Content”) is for informational purposes only. Our Website (including its Content) is not intended to be a substitute for professional medical advice, diagnosis or treatment. Always seek the advice of your physician, other qualified health provider or expert with any questions you may have regarding a medical condition, health care options and health-related services. Never disregard professional medical advice or delay in seeking it because of something you have read on our Website.
Your reliance on any Content or testimonials contained on our Website or otherwise provided by or on behalf of us is solely at your own risk. Testimonials and statements by customers contained on our Website are specific to that individual customer and are no guarantee of any results or benefits you may obtain from taking any of the Products. By purchasing any of the Products, you agree that you are doing so without reliance on any testimonial or implied result contained on our Website.
The statements made on our Website, as well as any materials, Products, or supplements distributed, or advertised, have not been evaluated by the Food and Drug Administration or any other governmental authority. Any products or information appearing on our Website are not intended to diagnose, treat, cure, or prevent any disease.
Terms Applicable to Purchases of Products from Our Website
Generally. To purchase any Products or Services from our Website’s online store, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any Products or Services, you must provide us with a valid credit card number and associated payment information including all of the following: ai) your name as it appears on the card, (b) your credit card number, (c) the credit card type, (d) the date of expiration, and (e) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For any Product or Service that you order on our Website, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
Methods of Payment, Credit Card Terms and Taxes . All payments must be made through your Visa, MasterCard or other credit/charge cards we may accept from time to time at our discretion. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these TOU to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify us of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the Products or Services. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. We will automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
Return Policy. All purchase transactions made through our Website are subject to Company’s return policy and/or money back guarantee policy in effect at the time of purchase.
Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by us upon our delivery of Products or Services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with us has been effected until you receive a confirmation from us via email or the Website. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
No Responsibility to Sell Mispriced Products or Services. We use reasonable and good-faith efforts to describe every item, Product or Service offered on our Website as accurately as possible. However, we do not warrant that specifications or pricing on our Website is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, Product or Service, we will have the right to refuse or cancel any orders in our sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a Product you purchased from us is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
Modifications to Prices or Billing Terms. The purchase of Products and Services on our Website is subject to availability. PRODUCTS AND SERVICES DISPLAYED ON OUR WEBSITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. WE RESERVE THE RIGHT, AT ANY TIME, TO CHANGE THE PRICES AND BILLING METHODS FOR PRODUCTS AND SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON OUR WEBSITE OR BY E-MAIL DELIVERY TO YOU.
SMS. (a) How it Works: All new and existing customers agree to receive marketing emails from us and our affiliates and may unsubscribe from such emails by clicking a link contained in the email they receive. You may also be asked to opt-in to receive text marketing messages to your phone. You may be asked to reply to confirm your phone number and your email address. Text messages are sent using autodialed technology to the wireless number you use to subscribe. You do not have to sign up for this program in order to buy Products or Services. Message & data rates may apply. (b) Participant Requirements: You must have a wireless device of your own capable of 2-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions. (c) Participant Opt-Out or Help: To opt out of future messages at any time, reply STOP to any text message or contact us via e-mail at email@example.com. To receive help at any time, reply HELP to any text message or contact us via e-mail at firstname.lastname@example.org. (d) Costs: You will be charged the standard text messaging fee by your wireless carrier for each message you send or receive, in accordance with the terms of your cellular subscription plan. Message and data rates may apply, depending on your individual wireless pricing plan, in accordance with your wireless customer agreement. You are responsible for all applicable taxes. Consult your wireless service provider regarding their pricing plans. The SMS service is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. (e) Rights Releases; No Warranties; Reservations: By participating, you agree to release and hold harmless us and participating wireless carriers (“Released Parties”) and their respective representatives, agents, successors, assigns, employees, members, officers and directors, from any and all liability, for loss, harm, damage, injury, cost or expense whatsoever including without limitation, property damage, personal injury and/or death which may occur in connection with this Initiative, and for any claims based on violation of law or infringement or violation of any rights of any person or entity, including, without limitation, violation of publicity rights, defamation, invasion of privacy. Released Parties are not responsible for any printing, typographical, mechanical or other errors. The Released Parties make no warranties, and hereby disclaim any and all warranties, express or implied, concerning any offer furnished by third parties in connection with the SMS service. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL SERVICES, INCLUDING SMS SERVICES, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE RELEASED PARTIES HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES AND/OR NON-INFRINGEMENT.
Copyright and Trademarks
The Content and other matters related to our Website are protected under applicable U.S. and international copyright, trademark and other proprietary (including but not limited to intellectual property) rights and are either owned by us or are the property of our suppliers or licensors. You may not use such materials without permission. You do not acquire ownership rights to any Content viewed through our Website. The posting of information or materials on our Website by us does not constitute a waiver of any rights in such information and materials.
The related design marks, and other trademarks on our Website and related to the Products are owned by us. Page headers, custom graphics, button icons and scripts are trademarks or trade dress we own. You may not use any of these trademarks, trade dress, or trade names without our express written permission.
Wireless Features. Our Website may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access out Website’s features and upload content to our Website, receive messages from our Website, and download applications to your wireless device (collectively, “Wireless Features“). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
Terms of Wireless Features. Subject to the terms and conditions stated above, you agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via our Website for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number).
Personal Use Only
You are granted a limited, personal, non-exclusive, non-commercial license to view, print or download content, graphics, forms or documents from our Website for use solely by you for your own personal use. Our Website may not be used for any commercial purpose, commercial advantage or private monetary compensation.
No page (including any Content) from our Website may be copied, reproduced, republished, uploaded, posted, transmitted, framed, commercialized, distributed in any way, or incorporated into any other website or electronic or mechanical information retrieval system, except that you may download one copy of the viewed materials on any single computer for your personal, non-commercial home use only (but not for resale or redistribution), provided you keep intact all copyright and other proprietary notices. Modification of any Content or use of any Content for any other purpose is a violation of the Content provider’s copyright and other proprietary rights. The use of any such Content on any other website or networked computer environment is prohibited. All rights, title and interest in and to the Content on our Website (including but not limited to all copyrights, trademarks, service marks, trade names and all derivative works) are owned or controlled by and shall remain at all time vested in us or our Content providers.
If you send submissions (e.g., postings to chats, message boards, or contests) or creative suggestions, ideas, notes, drawings, concepts, or other information (collectively, “Submissions”) to us through our Website or otherwise, the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidence on the part of us, and we shall not be liable for any use or disclosure of any Submissions. You hereby represent and warrant that you have all necessary rights in and to the Submissions you provide and that all information they contain shall not infringe any proprietary or other rights of third parties, or contain any libelous, tortuous, or otherwise unlawful information. Without limiting the foregoing, you hereby grant to us, and you agree to grant to us, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Submission (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Submission and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Submission for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to us to your Submission, you also hereby grant to us, and agree to grant to us, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Submission, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Submission, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section.
We do not endorse and have no control over the content of Submissions submitted by others to our Website. Submissions submitted to our Website are not necessarily reviewed by us prior to posting and do not necessarily reflect our opinions or policies. We make no warranties, express or implied, as to the content of the Submissions on our Website or the accuracy and reliability of any Submissions and other materials on our Website. Nonetheless, we reserve the right to prevent you from contributing Submissions to our Website and to edit, change and/or remove such Submissions for any reason whatsoever without prior notice.
You agree to defend, indemnify and hold harmless us, our affiliates and each of our and their respective directors, officers, employees and agents (collectively, “Affiliated Parties”) from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or accruing from: (a) any material posted or otherwise provided by you that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; (b) any misrepresentation made by you in connection with your use of our Website; (c) any non-compliance by you with the terms and conditions of these TOU; and (d) claims regarding any liability, loss, claim and/or expense arising from or related to your access and use of our Website, including information obtained through our Website. Notwithstanding the foregoing, we reserve the right to assume at your expense the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
Third-Party Websites, Products and Services
We allow access to or advertise third-party sites (“Other Sites”) from which you may purchase certain goods or services. Other Sites may also include other websites that may be affiliated with us. You understand that we do not operate or control the products or services offered by Other Sites. Each Other Site is responsible for all aspects of its order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and the Other Sites. YOU AGREE THAT USE OF SUCH OTHER SITES IS AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESS, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DAMAGES (DIRECT OR INDIRECT) ARISING FROM ANY TRANSACTIONS BETWEEN YOU AND OTHER SITES OR FOR ANY INFORMATION APPEARING ON OTHER SITES OR ANY OTHER SITE LINKED TO OUR WEBSITE. The inclusion of any advertisements on our Website does not imply any recommendation, approval, or endorsement by us of the quality of the goods or services being advertised or any other characteristics or qualities of the Other Sites or their goods or services. We are not responsible for the content, accuracy or opinions expressed in such Other Sites, and such Other Sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked Other Sites on our Website does not imply approval or endorsement of the linked Other Site by us. If you decide to leave our Website and access Other Sites, you do so at your own risk. You expressly agree not to rely on any claims made on our Website regarding the quality of the goods or services being advertised. It is your responsibility to perform all reasonable inquiries into the quality, sufficiency, legality, fitness, and ability of the Other Site’s goods or services to meet your needs. None of the Other Sites has no power to bind us in any way, including but not limited to issues regarding warranties, adequacy of goods, and all other concerns. All rules, policies (including privacy policies) and operating procedures of Other Sites will apply to you while on such Other Sites. We are not responsible for information provided by you to the Other Sites.
Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from our Website infringe your copyright, you may request removal of those materials (or access to them) from our Website by submitting written notification to our agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on our Website, a representative list of such works.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
• Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent to receive DMCA Notices is:
2618 San Miguel Dr #176
Newport Beach, CA 92660
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on our Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Child Online Protection Act Notification
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.
Information and Press Releases
Our Website may contain information and press releases about us. While this information was believed to be accurate as of the date prepared, we disclaim any duty or obligation to update this information or any press releases. Information about companies other than ours contained in press releases or otherwise, should not be relied upon as being provided or endorsed by us.
You acknowledge and understand that if our Website or any portion or component thereof is unavailable as a result of a force majeure event, we will not be in breach of any of its obligations toward you under these TOU. A force majeure event means any event beyond the control of us.
WE SHALL NOT HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR FAILING TO PERFORM ITS OBLIGATIONS UNDER THESE TOU TO THE EXTENT THAT SUCH FAILURE IS AS A RESULT OF A FORCE MAJEURE EVENT.
Domestic Use and Export Restriction
Operation of Site; Availability of Products and Services; International Issues. We control and operate our Website from our offices based in the United States, and we make no representation that out Website is appropriate or available for use beyond the United States. If you use our Website from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Our Website may describe products and services that are available only in the United States (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of our Website and/or the provision of any content, program, product, service, or other feature described or available on Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these TOU of the Convention on Contracts for the International Sale of Goods.
Export Controls. Software related to or made available by our Website may be subject to export controls of the United States. No software from our Website may be downloaded, exported, or re-exported: (a) into (or to a national or resident of) any country or other jurisdiction to which the United States has embargoed goods, software, technology or services, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (c) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (a) – (c) above.
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). You and we agree that we intend that this Section satisfies the “writing” requirement of the FAA. This Section can only be amended by mutual agreement.
(a) Informal Resolution. If any controversy, allegation, or claim arises out of or relates to our Website, the Content, your Submissions, or these TOU, whether heretofore or hereafter arising (collectively, “Dispute“), or to any of our actual or alleged intellectual property rights (an “Excluded Dispute“, which includes those actions set forth in Subsection (d) below, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Subsection (a). Your notice to us must be sent to: email@example.com. For a period of sixty (60) days from the date of receipt of notice from the other party, you and we will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or us to resolve the Dispute or Excluded Dispute on terms with respect to which you and us, in each of our sole discretion, are not comfortable.
(b) Binding Arbitration. If we cannot resolve a Dispute as set forth in Subsection (a) above (or if we agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND US MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF OUR WEBSITE (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY – AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TOU. The FAA shall govern the arbitrability of all disputes between us and you regarding these TOU and our Website, including the “No Class Action Matters” section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. A Dispute will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS“), in accordance with the then-current streamlined Arbitration Rules and Procedures (“Rules“) of, or by any other arbitration administration service that you and our legal representative consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in Orange County, California. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require us to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these TOU and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.
(c) Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SUBSECTION (a) ABOVE) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (i) by delivery of written notice as set forth above in Subsection (a) above; (ii) filing for arbitration with JAMS as set forth in Subsection (b) above; or (iii) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
(d) Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to our Website, any Content, your Submission and/or our intellectual property rights (including such rights we may claim that may be in dispute), our operations, and/or our Products or Services.
(e) No Class Action Matters. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Subsection 10(b) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Subsection 10(f) below. Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this Subsection (e)), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
(f) Federal and State Courts in Orange County, California. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Orange County, California. Accordingly, you and we consent to the exclusive personal jurisdiction and venue of such courts for such matters.
(g) Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
(a) DISCLAIMER OF WARRANTIES: WE PROVIDE OUR WEBSITE AND ALL CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT REPRESENT OR WARRANT THAT OUR WEBSITE OR ANY CONTENT: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OF OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOU, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR CAUSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
(b) HEALTH-RELATED INFORMATION: WE PROVIDE INFORMATION ON OUR WEBSITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR THE ADVICE OF A DOCTOR OR OTHER HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH OUR WEBSITE FOR DIAGNOSING OR TREATING A MEDICAL CONDITION. IF YOU HAVE OR SUSPECT THAT YOU HAVE A MEDICAL PROBLEM OR CONDITION, PLEASE CONTACT A QUALIFIED HEALTHCARE PROVIDER IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON OUR WEBSITE. YOU SHOULD CAREFULLY READ THE INSTRUCTIONS OF ANY PRODUCTS SEEN, REFERENCED OR ADVERTISED ON OUR WEBSITE PRIOR TO USE. IN ADDITION, TESTIMONIALS OF BENEFITS ARE OF INDIVIDUAL USERS AND ARE NO GUARANTEE OF SIMILAR RESULTS BEING ACHIEVED AND YOU SHOULD NOT RELY ON SUCH.
(c) PRODUCTS: ALL PRODUCTS SEEN, REFERENCED OR ADVERTISED ON OUR WEBSITE ARE SUBJECT TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR CAUSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NONCOMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
(e) EXCLUSION OF DAMAGES: WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF OUR WEBSITE OR ANY PRODUCTS SEEN, REFERENCED OR ADVERTISED ON OUR WEBSITE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
(f) LIMITATION OF LIABILITY: IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOU, INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO OUR WEBSITE OR THE PRODUCTS SEEN, REFERENCED OR ADVERTISED ON OUR WEBSITE, EXCEED $100.
These TOU will be binding upon each party hereto, as well as upon its successors and permitted assigns. These TOU are governed by and construed in accordance with the laws of the State of California, without regard for conflict of law principles. To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. These TOU, and all of your rights and obligations under them, may not be assigned or transferred by you without our prior written consent. No failure or delay by a party in exercising any right, power, or privilege under these TOU will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof, or the exercise of any other right, power, or privilege under these TOU. You are an independent contractor, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOU. If any provision of these TOU is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these TOU, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these TOU (which will remain in full force and effect).