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TERMS OF USE

 

  1. Acceptance of Terms of Use
        1. This website, app, platform and any service offered under the names “ZitStickatm” operated and owned by ZitSticka, Inc. (“us”, “we” and “our”).
        2. Your use of this Platform is subject to these terms of use (“Terms of Use”).  The Terms of Use constitute a binding legal agreement between you and us, and your continued use of the Platform constitutes your acceptance and acknowledgement of these Terms of Use and any policy displayed on the Platform, all of which constitute a part of the Terms of Use. If you do not agree to the Terms of Use, you must not use the Platform.
        3. Any time you visit the Platform, purchase any goods or services from us, or enter into any transaction with us whatsoever, you are taken to accept these Terms of Use.
        4. We may amend or modify the Platform, the Terms of Use and/or the Privacy Policy at our sole discretion and at any time.  Any amendments are effective 14 days after publication on the Platform. Your continued use of the Platform indicates your continued acceptance of the Terms of Use as modified.
        5. These Terms of Use will prevail over any other terms or agreement between you and us.
  2. Definitions
        1. In these Terms of Use:
          1. Cookie Policy means our cookie policy available www.zitsticka.com/cookie-policy.
          2. Content means any content whatsoever which you upload to the Platform, including but not limited to any bios, experience, descriptions, reviews, usage data, feedback, comments, chats, media.
          3. Platform means this website, app, platform and any service offered under the name “ZitStickatm”.
          4. Price means for each Product, the price listed on Platform and which are subject to change from time to time.
          5. Privacy Policy means our privacy policy available www.zitsticka.com/privacy-policy.
          6. Product means any products or goods offered for sale on our Platform.
          7. Sale Contract means a binding legal agreement under which we sell you the relevant Product/s for the Price/s.
          8. Terms of Use means these Terms of Use which include the Privacy Policy.
          9. Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.
          10. We, we, us, our means ZitSticka, Inc.
          11. You, you or your mean you and any user of this Platform or any person buying Products from us.
  3. Access
        1. Access to and use of this Platform, and the availability of any Products, is subject to you being at least 18 years old and having the legal capacity to entering into binding contracts. If this condition is are not satisfied, please cease using the Platform immediately.
  4. Registration
        1. You may be required to be a registered member to access certain features of our website.
        2. When you register and activate your account, you will provide us with personal information such as your name and email address and other details. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.
        3. You will create a username and password. You are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name. You must not share your account credentials with any third party. We do not authorise anyone to use the service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.
        4. You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your account may be suspended and legal action may be taken against you.
  5. Content
        1. Where the Platform allows you to upload any Content, you:
          1. represent and warrant to us that you have all right, title, interest and authority in the Content;
          2. represent and warrant to us that you have the permission to use the name and likeness of each person whose image appears in any Content in the manner contemplated by these Terms;
          3. represent and warrant to us that the use or exploitation of Content will not infringe the rights of any third party (including, but are not limited to, intellectual property rights and privacy rights); and
          4. agree and undertake to us to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Content to or via the Platform.
        2. It is your responsibility to back up any of Content to your own systems. We do not guarantee that the Platform will always be available at all times.
        3. You agree that we can store Content in our servers.
        4. To the maximum extent permitted by law, you release us and indemnify us from any claim or loss in relation to Content being stored in our servers.
        5. This clause 5 will survive termination of these Terms.
  6. Your conduct
        1. In using the Platform, you must:
          1. strictly comply with any policy displayed on our Platform;
          2. obey all laws whatsoever (including international law) which may apply in respect of your use of the Platform;
          3. Behave courteously and politely to our employees and representatives;
          4. not take any action that is likely to impose upon the Platform or our (or its third-party suppliers) a disproportionately large load;
          5. not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Platform;
          6. except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;
          7. not add any Content:
            1. unless you hold all necessary rights, licences and consents to do so;
            2. that may result in you or us breaching any law, regulation, rule, code or other legal obligation;
            3. that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
            4. that would bring us or the Platform into disrepute;
            5. that infringes the rights of any person;
            6. that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate;
            7. that contains unsolicited or unauthorised advertising (including junk mail or spam); or
            8. that contains computer or software viruses, files or programs that are designed to interfere with the ordinary functions of the Platform, or obtain unauthorised access to any system, information, security device belonging to us or any third party.
  7. Products
    1. Sale Contracts

Every time you purchase any Products from us using the Platform or otherwise, you enter into a separate Sale Contract with us to buy the relevant Product in exchange for the relevant Price. The
Sale Contract is subject to these Terms of Use, which are incorporated into every Sale Contract.

    1. Price

The Price must be paid without setoff or deduction. All Prices are subject to change at any time until a Sale Contract is confirmed by us. Payment must be effected through our current payment platform of choice.

    1. Descriptions

Products displayed on our Platform or otherwise disclosed may not be available or be exactly as described.  We will use our best endeavours to ensure that Product details, descriptions, images and prices are correct at the time the relevant information is entered into the system or disclosed to you. However, to the extent permitted by law, we do not warrant that the descriptions or other content available on the Platform or otherwise disclosed are accurate, complete, reliable, current, or error-free.

    1. Ordering Products
          1. Product Prices may change region to region and due to a variety of factors, including without limitation promotional events or new offerings.
          2. All Products are subject to availability.
          3. We reserve the right to refuse to sell or supply Products to any person, for any reason, at our sole discretion.
    2. Personal Use

Our Products and any samples which are provided to you are for your personal use only. You must not sell or resell any of the Products, or samples, that you purchase or otherwise receive from us. You must not supply them to anyone else, whether or not for reward.

    1. Cancellation of Order
          1. We may cancel or reduce your Products without notice if we believe, in our sole discretion, that:
            1. you have breached the Terms of Use or that the completion of your Products may result in a breach of the Terms of Use; or
            2. you are hostile or discourteous towards us;
            3. you initiate credit card chargebacks or dispute/claims without valid cause.
          2. We may also cancel a Product or part of Products for any of the following reasons:
            1. the Product or item(s) for the Product is no longer available;
            2. there was difficulty in processing payment information;
            3. delivery to the address was not possible;
            4. a duplicate order for a Product was placed;
            5. the Product was cancelled with your consent; or
            6. any other reasonable reason.
          3. If your Product is cancelled, you will be contacted to explain the reason for the cancellation and (if applicable) the appropriate amount will be refunded via your original payment method.
          4. You may not cancel an order without our prior written consent, which may be withheld at our sole discretion and provided on a case by case basis.
    2. Delivery
          1. Title to Goods: we retain the legal ownership of any Products until the latter of the dispatch of the Products to you or when full payment for the Products is received by us. The legal ownership of the Products will immediately revert to us if we refund any such payment to you.
          2. Delivery Timeframe: any delivery times quoted to you are indicative only. Products may be delivered in one or more parts. To the extent permitted by law, we do not accept any liability whatsoever for delayed delivery caused by any third-party.
          3. Risk of Loss: Risk in the Products will pass to you upon delivery to you.
          4. Receipt of Products: Upon delivery of the Products, you must inspect the Products for any shortage or quality issues. You will be deemed to have accepted the Products and waived the right to make any claim unless you notify us in writing within 7 days of receiving the Products. If we have provided you with more Products than what you ordered, you must also notify us and return the surplus Products to us (we will bear the shipping costs).
    3. Returns
          1. Returns are only with our prior written consent, which may be withheld at our sole discretion and provided on a case by case basis.
          2. If you have received the wrong Products, any item is damaged or your order does not arrive please contact us immediately (and no longer than 7 days from receipt of the Products) and give a full detailed description of the problem / damage, as well as your name, contact number or email and order number. We will then determine how best to resolve your problem.
  1. Intellectual Property Rights
        1. Except where otherwise indicated or implied by context, we are the sole owners or licensees of all intellectual property comprised in the Platform (including all intellectual property comprised in the Platform content), and nothing in these Terms of Use constitutes a transfer of any intellectual property rights in or related to the Platform or Platform content.
        2. You acknowledge and agree that the Platform and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Platform.
        3. You must not do anything which breaches or otherwise interferes with our intellectual property rights or the intellectual property rights of any of its third-party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Platform content without our prior written permission or the relevant third-party licensor or exploit such contents for commercial benefit.
        4. You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause 8 and that equitable or injunctive relief may be necessary.
  2. Third party sites
        1. The Platform may contain links to websites that are owned and operated by third parties. We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.
        2. You acknowledge and agree that when you access a third-party website available via a link contained on the Platform:
          1. you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website;
          2. we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and
          3. you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.
  3. Disclaimer and limitation of liability
        1. RESULTS AND EFFECTIVENESS OF THE PRODUCTS MAY VARY FROM PERSON TO PERSON AND MAY BE DOWN TO A VARIETY OF FACTORS, MANY OF WHICH ARE OUTSIDE OF OUR CONTROL. ACCORDINGLY, WE DISCLAIM ANY LIABILITY FOR POOR-PERFORMANCE OF THE PRODUCTS AND FOR ANY NON-ECONOMIC LOSS INCLUDING WITHOUT LIMITATION LOSS OF ENJOYMENT, DISAPPOINTMENT, DISTRESS OR FRUSTRATION, WHETHER PHYSICAL OR MENTAL.
        2. OUR PRODUCT STATEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION. OUR PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. WE DO NOT PROVIDE MEDICAL ADVICE AND OUR PRODUCTS ARE STRICTLY COSMETIC ONLY.
        3. THIS PLATFORM MAY INCLUDE FORWARD-LOOKING STATEMENTS OR STATEMENTS OF OPINION. THESE STATEMENTS ARE BASED ON THE REASONABLE BELIEFS OF OUR MANAGEMENT AS WELL AS ASSUMPTIONS MADE BY AND INFORMATION CURRENTLY AVAILABLE TO US. MANY FACTORS THAT WE ARE UNABLE TO PREDICT WITH ACCURACY COULD CAUSE OUR PRODUCTS’ ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS TO BE MATERIALLY DIFFERENT FROM THOSE THAT MAY BE EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS.
        4. OUR LIABILITY ARISING IN CONNECTION WITH THESE TERMS OF USE OR THE PLATFORM IS LIMITED AS FOLLOWS:
          1. WE EXCLUDE ALL LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, NON-ECONOMIC OR REMOTE LOSS, INCLUDING LOSS OF OPPORTUNITY OR BUSINESS;
          2. OUR TOTAL MAXIMUM TOTAL LIABILITY ARISING IN CONNECTION WITH THESE TERMS OF USE IS CAPPED TO THE TOTAL AMOUNT OF ANY PRODUCTS PRICES YOU HAVE PURCHASED FROM US IN THE LAST 12 MONTHS;
          3. OUR LIABILITY IS EXCLUDED TO THE EXTENT THAT YOU CONTRIBUTED TO THE LIABILITY;
          4. WE EXCLUDE ALL LIABILITY FOR ANYTHING YOU HAVE BEEN AWARE OF FOR LONGER THAN SIX MONTHS AND YOU HAVE NOT COMMENCED A CLAIM; AND
          5. OUR LIABILITY IS SUBJECT TO YOUR DUTY TO MITIGATE YOUR LOSS.
        5. Any information or advice provided on the Platform, including any information advice in relation to the Products, health or anything else, is of general nature only. You acknowledge that:
          1. your use of any Products and any accessories or any advice is solely at your own risk;
          2. you must rely entirely on your own enquiries and judgment in relation to Products and any accessories, anything offered by us, any advice and any other information or material contained on the Platform;
          3. you must not use any Products or other accessories in a manner inconsistent with any displayed instructions;
          4. you should not rely solely on any information on the Platform and you must always consider obtaining independent advice, including without limitation advice from a medical professional. If a medical professional provides you with any advice in relation to the Products, you must follow that advice;
          5. we are not liable for any reckless or negligent act or omission by you;
          6. if at any time you have reason to believe that a certain act or omission is likely to result in damage or harm to any persons or property, you must not do that act or omission.
        6. We exclude all liability for any damage to the Products caused by your failure to properly follow our advice or reasonable caution in relation to storage, maintenance and cleaning of the Products. You must take reasonable steps to store, maintain and clean all Products and accessories in accordance with standard practice and any instructions provided.
        7. To the extent that any law restricts our right to exclude Warranties under these Terms of Use, these Terms of Use must be read subject to those provisions and nothing in these Terms of Use is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, notwithstanding any other provision of these Terms of Use, to the extent that we are entitled to do so, we limit our liability pursuant to such provisions:
          1. in the case of goods:
            1. the replacement of the goods or the supply of equivalent goods;
            2. the payment of the cost of replacing the goods or of acquiring equivalent goods; and
          2. in the case of services:
            1. the supply of the services again; or
            2. the payment of the cost of having the services supplied again.
        8. We provide the Platform on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Platform, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have disruption or other difficulties in using the Platform.
        9. In the event that we terminate the Platform or your access to the Platform pursuant to these Terms of Use, you release us from all liability, loss or claims suffered by you as result of or arising out of such termination.
        10. All of the above subclauses are cumulative to one another.
  4. Release and Indemnity
        1. To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
        2. To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
        3. In this clause:
          1. Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
          2. Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
          3. Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates affiliates, subsidiaries, sponsors, and other third-party partners. We hold the Released Parties’ rights on trust for their benefit.
          4. Relevant Matter means anything in connection with:
            1. any damage to person, property, personal injury or death;
            2. your breach of these Terms of Use;
            3. any matter for which we have purported to disclaim liability for under these Terms of Use;
            4. your use, misuse, or abuse of the Platform; and
            5. your breach or failure to observe any applicable law.
  5. Termination
        1. You acknowledge and agree that:
          1. we may terminate your access to the Platform at any time without giving any explanation.
          2. we may terminate these Terms of Use or any Sale Contract immediately by notice to you in writing if you are deemed to breach these Terms of Use or associated policies in any way, in our sole discretion.
          3. Termination of these Terms of Use, a Sale Contract or your access to the Platform does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.
  6. General
        1. You agree to all policies displayed on the Platform, including but not limited to the Privacy Policy and the Cookie Policy.
        2. You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms of Use.
        3. If a provision of these Terms of Use is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
        4. These Terms of Use are governed by the laws of NSW, Australia and each party submits to the exclusive jurisdiction of the courts of that State and all courts of appeal therefrom.
        5. Any waiver of any term on these Terms of Use by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
        6. The contents of these Terms of Use constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.
        7. A provision of this agreement which can and is intended to operate after its conclusion will remain in full force and effect – including all indemnities and releases.

 

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

ZitSticka (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

  1. User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies. 

  2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that ZitSticka and its service providers will have no liability for failing to honor such requests.  You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

  3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of skincare products, offers and launches. Messages may include checkout reminders. 

  4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

  5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at support@zitsticka.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

  6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

  7. Our Disclaimer of Warranty: The Program 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. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

  8. Participant Requirements: You must have a wireless device of your own, capable of two-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.
  9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

  10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

 

  1. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in {Company’s City, State} before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which ZitStickas principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. 

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.  

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

  1. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents.  For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code.  You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us.  Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

  2. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.