TERMS OF SERVICE
These Terms of Service (“Terms”) are effective October 21, 2022.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE COMPANY WEBSITE AND SERVICES. THESE TERMS LIMIT OUR LIABILITY TO YOU, REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
This website is operated by Plant Devas Inc. dba evanhealy. Throughout the website, the terms “COMPANY,” “we,” “us,” and “our” refer to Plant Devas Inc. and its affiliates, successors, and assigns. The words “you” and “your” refer to each individual user accessing and using our website and services. The COMPANY offers this website, including all information, tools, and services available from this website to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here.
By visiting our website and/or purchasing products from us, you engage in our “Service” and agree to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms apply to all users engaging in our Service, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of posts.
Please read these Terms carefully before accessing or using our Service.
SECTION 1: GENERAL CONDITIONS
By using our Service you are representing you are 18 years of age or older and are legally capable to enter into contracts. We will not be liable for any damages that may result from a misrepresentation of age by a user of our website. We reserve the right to refuse Service to anyone for any or no reason at any time.
You understand that any information or content that you provide us (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The headings used in these Terms are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 2: ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this website or our Service is not accurate, complete or current. The material on this website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this website is at your own risk.
This website may contain certain historical information. Historical information may not be current and is provided for your reference only. We reserve the right to modify the contents of this website at any time, but we have no obligation to update any information on our website. You agree that it is your responsibility to monitor changes to our website.
SECTION 3: ACCOUNTS
Some features of the Service require that you register and create an account. When you create an account with us, you guarantee that you are over the age of 18 and that the information you provide us is accurate, complete and current at all times. Inaccurate, incomplete or obsolete information may result in the immediate termination of your account and use of the Service. As part of the registration process, you will be asked to provide us with certain personal information about you including your name, email address and country that you reside in and to create a password for your account. To sign in to your account you will be asked to provide us with your email address on file and the password that you have created (collectively, “Account Credentials”). You are responsible for maintaining the strict confidentiality of your Account Credentials.
Your commitment to maintaining the strict confidentiality of your Account Credentials is a material condition of your access and use of the Service. You agree to accept responsibility for any and all activities or actions that occur under your Account Credentials. You must not allow others to use your Account Credentials, and you agree to notify us immediately if you have reason to believe that someone is using your Account Credentials without your permission or upon becoming aware of any breach of security or unauthorized use of your account. Except to the extent required by law, we will not be liable for any losses arising out of the unauthorized use of your Account Credentials, either with or without your knowledge.
You should be mindful of any communication requesting that you submit your Account Credentials or credit card or other account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to our website and not through a hyperlink in an email or any other electronic communication, even if it looks official. The COMPANY reserves the right to place any account on hold anytime with or without notification to a participant in the Subscription Program in order to protect itself and its partners from what it believes to be fraudulent activity.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the website or any component thereof and to block or prevent future access to and use of the website and to delete your account and any related information.
SECTION 4: PRODUCTS
We cannot guarantee the availability of a particular product at any particular time. We reserve the right to change our product offerings on the website, without notice, at any time. We also reserve the right to change contents, features and offerings, and adjust accessibility, of the website from time to time in our sole and absolute discretion.
Although we attempt to be as accurate as possible when describing products, we do not warrant in any way that product descriptions or other content of the website is accurate, complete, reliable, current or error free.
The COMPANY will not be held liable for any indirect, punitive, incidental, special or consequential damage arising out of or connected with your misuse of our products, including without limitation any use for an unintended, illegal or unauthorized purpose.
The products available on our Service, and any samples thereof we may provide to you, are for personal use only. You may not sell or resell any of the products, or samples thereof, you purchase or otherwise receive from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that we believe, in our sole discretion, may result in the violation of our Terms.
SECTION 5: MODIFICATIONS TO THE SERVICE AND PRICES; SHIPMENTS AND RETURNS
Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue any of our products or the Service without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of any product or the Service.
Please refer to our Shipping (https://www.evanhealy.com/pages/shipping) and Returns & Refunds (https://www.evanhealy.com/pages/returns) policies found on our homepage, and incorporated herein by reference, for further details regarding our shipping and return policies.
SECTION 6: ACCURACY OF BILLING AND ACCOUNT INFORMATION
If you wish to purchase any product made available through the Service (“Purchase”), you may be asked to supply certain information relevant to your Purchase, including without limitation your account information (e.g., Account Credentials), credit card number, the expiration date of your credit card, security code, your billing address and your shipping information.
You agree to provide current, complete and accurate purchase and account information for all Purchases made through the Service. You agree to promptly update your account and other information, including without limitation your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
You represent and warrant that: (a) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; (b) the information you supply to us is true, correct and complete; and (c) that you will pay for all charges incurred through the use of your account (if applicable).
If you provide your telephone number to us, you are explicitly providing us with your consent to call you even if you have opted into the National Do Not Call List administered by the Federal Trade Commission or any state equivalent Do Not Call List. You can opt-in to join our mailing list to receive alerts and promotional information about our Service. If you no longer want to receive communications from us, you must notify us directly or follow the opt-out instructions found in our communications.
SECTION 7: SUBSCRIPTION PROGRAM; AUTOMATIC RENEWAL FEES
Some products available through our Service provide you an option to participate in our subscription program aimed to allow you to make recurring orders on such products while supplies last (“Subscription Program”). Ground shipping is free for recurring orders, regardless of the value of the products being shipped.
Deliveries on all recurring orders under the Subscription Program will automatically continue at the frequency and quantity you specify from the date of your subscription order, unless you modify your Subscription Program as set forth in this paragraph. You can customize your Subscription Program by changing your product selections, quantity and delivery frequency or cancel your subscription at any time at least one business day before your next subscription charge. Any changes or cancellations received by the COMPANY after 5.p.m PST, will be processed the next following business day. You can manage or cancel your participation in our Subscription Program at any time online by logging into your account and updating your status under the section entitled Subscription, calling us at 1-888-335-0190 Monday through Friday from 9 a.m. to 5 p.m. P.T., or sending an email to [email protected]
You can also add one-time product purchases to your subscription order. If you cancel or postpone your subscription, your one-time product purchase may also be cancelled or postponed. In order to separately cancel a one-time product purchase made with a subscription order, you will need to log in to your customer account and manage the delivery schedule of such order in your account or contact us separately by phone or email.
BY JOINING OUR SUBSCRIPTION PROGRAM, YOU AGREE TO ALL TERMS AND CONDITIONS REGARDING OUR SUBSCRIPTION PROGRAM INCLUDING RECEIVING RECURRING PRODUCT DELIVERIES AND AUTHORIZING THE COMPANY TO CHARGE YOUR DEBIT OR CREDIT CARD OR OTHER PAYMENT ACCOUNT THE FEES ASSOCIATED WITH THE RECURRING ORDER YOU SELECTED. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY WILL NOT OBTAIN ADDITIONAL AUTHORIZATION FROM YOU FOR EACH RECURRING FEE CHARGED TO YOUR DEBIT OR CREDIT CARD OR OTHER PAYMENT ACCOUNT. YOU ARE SOLELY RESPONSIBLE FOR ALL CHARGES, FEES, DUTIES, TAXES, AND ASSESSMENTS ARISING OUT OF ANY USE OF YOUR ACCOUNT OR THE SUBSCRIPTION PLAN SELECTED BY YOU OR ANYONE ELSE USING YOUR ACCOUNT. IN ADDITION, YOU AGREE THAT THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY OVERDRAFT CHARGES OR FEES WHICH YOU MIGHT INCUR AS A RESULT OF YOUR PARTICIPATION IN OUR SUBSCRIPTION PROGRAM. YOU UNDERSTAND AND AGREE THAT IF YOU PARTICIPATE IN OUR SUBSCRIPTION PROGRAM, THIS CONSUMER TRANSACTION INVOLVES A NEGATIVE OPTION, AND YOU MAY BE LIABLE FOR PAYMENT ON PRODUCTS UNDER THESE TERMS IF YOU FAIL TO NOTIFY THE COMPANY TO CANCEL YOUR SUBSCRIPTION. YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR THE DURATION OF THE SUBSCRIPTION PLAN THAT YOU SELECTED. THE RENEWAL CHARGE SHALL BE THE AGGREGATE PRICE OF THE PRODUCT(S) SELECTED AS STATED ON OUR WEBSITE PLUS ANY ADDITIONAL APPLICABLE TAX CHARGES OR FEES. PRICES ARE SUBJECT TO CHANGE. THE SUBSCRIPTION PROGRAM CANNOT BE COMBINED WITH OTHER OFFERS AND/OR DISCOUNTS OFFERED BY THE COMPANY. YOU MUST PROMPTLY NOTIFY US IF YOUR CREDIT CARD IS LOST, STOLEN, OR USED WITHOUT PERMISSION. IN SUCH AN EVENT, WE WILL REMOVE THAT CREDIT CARD NUMBER FROM YOUR ACCOUNT AND UPDATE OUR RECORDS.
THE COMPANY RESERVES THE RIGHT TO CANCEL YOUR SUBSCRIPTION AND/OR THE SUBSCRIPTION PROGRAM AT ANY TIME FOR ANY OR NO REASON. UPON CANCELLATION OF YOUR SUBSCRIPTION, YOU WILL NOT BE CHARGED ANY ADDITIONAL FEES FOR THE NEXT RECURRING ORDER AND YOU WILL CEASE RECEIVING ANY SUBSCRIBED PRODUCTS.
SECTION 8: CONSENT TO RECEIVE ELECTRONIC NOTICES
You consent to receive electronically any agreements, notices, disclosures and other communications (collectively, “Notices”) arising from these Terms including without limitation by e-mail or by posting notices on this website. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive Notices electronically, you must notify us of your withdrawal of such consent by emailing us. Please note that this consent to receive Notices is entirely separate from any election you may make with respect to receipt of our newsletters or marketing communications. If you no longer want to receive our newsletters or marketing communications, you must notify us directly or follow the opt-out instructions found in our communications.
SECTION 9: OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the website is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.
SECTION 10: THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third parties.
Third-party links on this website may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third‑party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third‑party websites. Please review carefully the third‑party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third‑party products should be directed to the third party.
SECTION 11: SOCIAL MEDIA
This Section applies to everyone who interacts with our social media presence including without limitation those who comment, view, hashtag, tag, create content featuring our products or Service, tweet, link or anyway interact with any other elements of our social media presence viewable on Facebook, Instagram, Twitter, YouTube, Pinterest, or any other third-party social media platforms (“External Social Media Sites”) that we may utilize (collectively “External Social Media Presence”).
The comments and opinions expressed by users on External Social Media Sites are theirs alone and do not reflect our opinions. Comments that some would consider inappropriate or offensive may appear on our External Social Media Presence and may remain there until they have been called to our attention or the attention of the appropriate party to work through the necessary procedures and technical processes to have them removed. If you see an offensive or inappropriate post or comment on our External Social Media Presence, you should report it to the operator of the applicable site or platform using the procedures they have established for that purpose. If you see an offensive or inappropriate post or comment on our website, including any External Social Media Presence that we incorporate into our Service, you should report it to us via the contact information below.
The COMPANY may incorporate or feature its External Social Media Presence on this website and Service at its sole and absolute discretion, including without limitation “posts” (as defined below) created by you.
SECTION 12: USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS; YOUR LICENSE TO US
If you send certain specific submissions or creative ideas, suggestions, proposals, plans, reviews, testimonials, commentary, feedback or other materials, whether online, by External Social Media Sites, by linking to or interacting with our External Social Media Presence, by email, by postal mail, or otherwise, whether with or without our consent (collectively, “posts”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any posts that you forward to us. We are and shall be under no obligation: (a) to maintain any posts in confidence; (b) to pay compensation for any posts; or (c) to respond to any posts.
By providing, publishing, posting or displaying posts you: (i) represent and warrant that (1) you own or otherwise have all necessary rights to the posts and have the right to grant the applicable license set forth herein, (2) the posts comply with all applicable laws, and (3) you are at least eighteen (18) years old; and (ii) grant to us a royalty-free, worldwide, perpetual, irrevocable, non-exclusive, fully paid, and fully transferable, assignable, and sublicensable worldwide right and license to copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, publish, broadcast, make, sell, export, and otherwise use the posts (in whole or part) on this website or otherwise, and/or to incorporate it in other works in any form, media or technology now known or later developed. We cannot be responsible for maintaining any posts that you provide to us; therefore, you should retain copies of all such data and information for your own records.
You represent and warrant that posting and publishing any such posts on or in connection with our products or Service does not violate any third-party intellectual property, publicity, privacy or contract rights. You shall not submit any posts which are libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise give rise to liability, or violate any law or obligation of confidentiality. We assume no and disclaim all responsibility or liability arising from the posts or for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger or inaccuracy of any posts. We reserve the right, in our sole discretion, to post, reject to post, refuse to post or remove any post by you (in whole or in part), or to restrict, suspend or terminate your access to all or any part of the Service at any time, for any or no reason, with or without prior notice, and without liability.
SECTION 13: DMCA/COPYRIGHT POLICY
It is our policy to respect the copyright and intellectual property rights of others. If you upload content on our website, we may remove such content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, we may, at our sole and absolute discretion, terminate your access to our Service if we believe you appear to infringe the intellectual property rights or other rights of others.
We comply with the Digital Millennium Copyright Act (“DMCA”). If you believe that something on our website has infringed your copyright in any material way, please notify the COMPANY and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material you claim is infringing so that we may locate it on the website;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing, or the law;
- a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
- that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by writing to the attention of the COMPANY’s DMCA designated copyright agent who can be reached as follows:
Plant Devas, Inc.
Attention: Lisa Nachtsheim
5925 Priestly Dr #120
Carlsbad, CA 92008
Email: [email protected]
Telephone Number: 1-888-335-0190
SECTION 14: INTELLECTUAL PROPERTY
The content, organization, graphics, design, compilation, product design and labeling, and other matters related to our website and Service are protected under applicable U.S. and international copyright, trademark and intellectual property laws. PLANT DEVAS, EVANHEALY, TRUTH HEALS, WHO YOU ARE IS ENOUGH, THE SKIN BREATHES, HYDROSOUL, and all our logos and other marks are either trademarks or registered trademarks of the COMPANY (“Trademarks”). Unless disclosed otherwise in writing, we exclusively own all worldwide right, title and interest in and to all the Trademarks, documentation, software, contents, graphics, designs, data, computer codes, ideas, know-how, “look and feel,” compilations, magnetic translations, digital conversions and other materials included within our website and related to our Service, and all modifications and derivative works thereof, and all intellectual property rights related thereto (“Intellectual Property”). The posting of information or materials on this website by us does not constitute a waiver of any rights in any Intellectual Property or such information and materials. You will not challenge, contest or otherwise impair the COMPANY’s ownership of the website and the content therein or the validity or enforceability of the COMPANY’s rights in the Intellectual Property. We reserve the right in our sole discretion to edit or delete any information or other content appearing on our website at any time without notice. Nothing contained in these Terms will be construed by implication, estoppel or otherwise as granting you an ownership interest in the Intellectual Property or any copyright, trademark, patent or other intellectual property right of the COMPANY or any third party. None of the material on our website may be downloaded, distributed, reproduced, republished, posted, transmitted or copied in any form or by any means, without the prior written permission of the COMPANY, which permission may be withheld in our sole and absolute discretion.
SECTION 15: PERSONAL INFORMATION
SECTION 16: ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our website or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 17: PROHIBITED USES
In addition to other prohibitions as set forth in these Terms, you are prohibited from using the website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet; or (l) to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the Service is provided, without express written permission by us. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 18: HEALTH INFORMATION DISCLAIMER
Any health related information provided in our Service is provided for informational purposes only and is not intended to constitute medical advice or replace discussions with a healthcare provider or esthetician. The COMPANY does not endorse or warrant the validity of any such health related statements found on its Service or in any in third party sites referenced in the website. You understand that our products and our Service are not substitutes for treatment or advice of your esthetician, dermatology provider, primary care physician, or any other qualified healthcare professional.
Please consult with your physician or other healthcare provider if you have health-related questions before using any of our products or relying on any information you obtain on our Service. Never disregard professional health advice or delay in seeking it because of something you have read on or about our Service and products.
Our products and Service are not intended to diagnose, treat, cure or prevent any disease or skin rash, disorder, acne, scar, or other dermatological condition. You acknowledge that everyone has different skin, allergies, and experiences, and that any product could cause a negative skin reaction or varied reaction from its use. The COMPANY cannot guarantee that you will attain a particular result from the use of its products, and you acknowledge and agree results differ for each individual.
By purchasing our products you agree and accept that some natural ingredients (i.e., essential oils, butters and oils from natural nuts, seeds and fruits, as well as soy, dairy, honey pollen or wax from bees, shellfish and eggs), may cause sensitivity in susceptible individuals and that the COMPANY will not be held responsible for such occurrences. You should test the products on a small area first, before using any new product for the first time. Should you develop any symptoms or allergic reactions, discontinue use immediately and consult your physician. You should never use new products on broken or irritated skin and you should discontinue using any product that causes any of the following: redness, scaling, itching, burning, soreness, blisters, watery eyes, irritation or other similar reactions. If you have any allergies, medical conditions or are pregnant, please read the product label carefully and consult your healthcare professional prior to use.
SECTION 19: DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
THE COMPANY DOES NOT WARRANT THE QUALITY, ACCURACY, OR COMPLETENESS OF ANY CLAIMS, STATEMENTS, OR INFORMATION ON THIS WEBSITE. FURTHER, THE COMPANY MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF ANY OF THE INFORMATION AND/OR PRODUCTS SHOWN ON THIS WEBSITE OR ANY OTHER WEBSITE FOR ANY PURPOSE. ALL PRODUCTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE OR CONTENT AVAILABLE ON THIS WEBSITE.
THE COMPANY DOES NOT WARRANT THE INFORMATION, SERVICES, OR PRODUCTS PROVIDED HEREIN OR YOUR USE OF THE SERVICE GENERALLY, EITHER EXPRESSLY OR IMPLIEDLY, FOR ANY PARTICULAR PURPOSE AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ATTEMPT TO BE AS ACCURATE AS POSSIBLE WHEN DESCRIBING OUR PRODUCTS ON THE WEBSITE; HOWEVER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT WARRANT THAT THE PRODUCT DESCRIPTIONS, COLORS, INFORMATION OR OTHER CONTENT AVAILABLE ON THE WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT COULD RESULT FROM INTERCEPTION BY THIRD PARTIES OF ANY INFORMATION OR SERVICES MADE AVAILABLE TO YOU VIA THIS WEBSITE. THE COMPANY CANNOT AND DOES NOT GUARANTEE THE ACCURACY, VALIDITY, TIMELINESS OR COMPLETENESS OF ANY INFORMATION MADE AVAILABLE TO YOU FOR ANY PARTICULAR PURPOSE. NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS OR EMPLOYEES, NOR ANY THIRD-PARTY VENDOR, WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSS OR DAMAGE THAT YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF THIS WEBSITE, OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING THIS WEBSITE, THE CONTENT CONTAINED HEREIN OR THE PRODUCTS OR SERVICES OFFERED ON THIS WEBSITE AVAILABLE TO YOU, OR FROM ANY OTHER CAUSE RELATING TO YOUR ACCESS TO, INABILITY TO ACCESS, OR USE OF THE WEBSITE OR THESE MATERIALS, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF THE COMPANY OR OF ANY VENDOR PROVIDING SOFTWARE OR SERVICES. IN NO EVENT WILL THE COMPANY OR ANY SUCH PARTIES BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES OR ANY OTHER DAMAGES OF ANY KIND EVEN IF THE COMPANY OR ANY OTHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. THE COMPANY CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE WEBSITE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE COMPANY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND/OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SERVICE, THE CONTENT, THE PRODUCTS OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO THE COMPANY FOR THE SPECIFIC SERVICE(S)/PRODUCTS GIVING RISE TO SUCH CLAIM DURING THE PRIOR SIX (6) MONTH PERIOD. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.
SECTION 20: INDEMNIFICATION
You agree to defend, indemnify and hold harmless the COMPANY and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from loss, liability, costs, damages or expenses from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all claims, judgments, damages, obligations, losses, liabilities, costs or debt, and other expenses of any nature (including reasonable attorney’s fees), resulting or arising in any way from your use and access of the Service, this website, your Purchase, your account, your posts, any acts or omissions by you or on your behalf with respect to any Purchase and/or any posts, or your breach of applicable laws, these Terms or the documents and policies referenced herein and any use of our products for an unintended, illegal or unauthorized purpose. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
SECTION 21: SEVERABILITY
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 22: TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may (a) suspend your rights to use the Service (as well as your COMPANY account) or (b) terminate these Terms, at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms or if we believe you are younger than 18 years old. Upon termination of these Terms, your COMPANY account and right to access and use the Service will terminate immediately. You understand that any termination of your COMPANY account may involve deletion of any posts you may have posted. The COMPANY will not have any liability whatsoever to you for any termination of these Terms, including for termination of your COMPANY account or deletion of your posts.
The provisions herein related to our Intellectual Property, Trademarks, user posts, acceptable use, disclaimer of warranties, indemnity, limitation and liability, and arbitration together with any other rights and obligations which by their nature are reasonably intended to survive such termination, will survive any termination of these Terms.
SECTION 23: ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
These Terms and any policies or operating rules posted by us on this website or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms).
Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party to the extent permitted by applicable law.
SECTION 24: GOVERNING LAW
These Terms and any separate agreements whereby we provide you the Service shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. Subject to the arbitration provision below, any legal actions related to these Terms, or your use thereof, will be brought and conducted in San Diego County, California, and each user consents to such jurisdiction and authorizes and accepts service of process sufficient for personal jurisdiction in any action against him or her as contemplated by this Section.
SECTION 25: CHANGES TO TERMS OF SERVICE
You can review the most current version of these Terms at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms constitutes acceptance of those changes.
SECTION 26: PROMOTIONAL TERMS
Any and all offers or promotions advertised on the Service are void where prohibited, and are subject to the posting of any official rules to such offers or promotions.
SECTION 27: CONTACT INFORMATION
If you have questions or concerns regarding these Terms or need to obtain a copy of these Terms in alternate format due to a disability, please contact us by email at [email protected] or by phone at 1-888-335-0190.
SECTION 28: CIVIL CODE SECTION 1789.3 NOTICE FOR CALIFORNIA USERS
In accordance with California Civil Code Sec. 1789.3, California resident users are entitled to know that they may file grievances and complaints regarding this website with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 North Market Blvd., Sacramento, California 95834, by telephone at (916) 445-1254 or (800) 952-5210, or by email to [email protected].
SECTION 29: DISPUTE RESOLUTION; ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
Both you and the COMPANY agree that any dispute, controversy or claim arising out of or relating to these Terms and this website, our products or Service shall be settled by binding arbitration conducted by JAMS in accordance with JAMS Comprehensive Arbitration Rules and Procedures (“Rules”). Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award and nothing in this arbitration agreement shall be interpreted as limiting any non-waivable statutory rights.
The arbitration shall be heard by one arbitrator to be selected in accordance with the Rules, in San Diego County, California. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. All parties waive the right, if any, to obtain any award for exemplary or punitive damages or any other amount for the purpose or imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to these Terms, or any breach hereof, including any claim that these Terms, or any part hereof, is invalid, illegal or otherwise voidable or void. Notwithstanding the foregoing, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
You agree that you have voluntarily chosen to visit this website, use the Service and purchase our products, and any claim brought by you must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Both you and the COMPANY hereby expressly waive any rights to maintain any Class Action in any forum. Any court or arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration or lawsuit. Any claim that all or part of these Terms to arbitrate and Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
30-Day Right to Opt-Out - To opt-out of your agreement to arbitrate disputes and to waive raising or participating in any Class Action claims, you must notify us in writing within 30 days of these terms first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of these Terms containing an Arbitration Agreement and Class Action Waiver provision) by emailing us at the email address set forth above and provide us with the following information: (i) your name; (ii) your address; and (iii) a clear statement that you wish to opt out of the Arbitration Agreement and Class Action Waiver provision in these Terms.