Effective February 13, 2019
PLEASE READ ALL OF THE FOLLOWING TERMS CAREFULLY AS THEY CONTAIN INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 14 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Acceptance of Terms.
- By accessing and using the Website, User hereby READS, UNDERSTANDS, ACCEPTS, and AGREES to be bound by this Agreement’s terms and conditions. Should User NOT accept these terms and conditions, User must neither access nor otherwise use any part of the Website or content or information available therewith. To the extent permitted by law, DHSC may amend, at any time and from time to time, this Agreement by posting a version of this Agreement to https://www.dr.hauschka.com/en_US/legal. DHSC will notify User on the Website that amended terms have been posted. User agrees that its use of the Website 14 days after amendment of these terms constitutes an acceptance of such amendments. User shall have the opportunity to refuse said amendments solely by ceasing access to and utilization of the Website.
- User’s purchase of any goods from DHSC over the Website will incorporate purchase orders (“Purchase Orders”) into which this Agreement is incorporated by reference.
- Residency and Age. The Website is intended to be accessed and utilized by Users who have attained the age of majority in their respective state or province. By accessing and using the Website, User hereby represents, warrants, and affirms that it is either at least 18 years of age, an emancipated minor, or has acquired a parent or guardian’s consent. User hereby affirms that it is, at a minimum and without exception, 13 years old. The Website is not intended to be accessed or utilized by children less than 13 years of age.
- Disclaimer of Warranties.To the fullest extent permitted by law:
- EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE WEBSITE AND THE ENTIRETY OF ITS PRODUCTS, INFORMATION, AND CONTENT PROVIDED THEREWITH ARE PROVIDED “AS IS” AND DHSC HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE DUE TO COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. TO THE EXTENT PERMITTED BY LAW, DHSC EXPRESSLY DISCLAIMS ANY REPRESENTATION THAT: (I) THE WEBSITE WILL MEET USER’S REQUIREMENTS; (II) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) ANY INFORMATION OBTAINED THROUGH OR FROM THE WEBSITE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE WEBSITE WILL MEET EXPECTATIONS; (V) ANY USER-PROVIDED INFORMATION WILL NOT BE DISCLOSED TO THIRD-PARTIES; (VI) ANY DATA OR SOFTWARE ERRORS WILL BE CORRECTED; (VII) THE WEBSITE WILL OPERATE IN A PARTICULAR CONFIGURATION WITH PARTICULAR HARDWARE OR SOFTWARE; (VII) PRODUCT PRICING WILL NOT CHANGE OR WILL BE CONSISTENT WITH PRICING FOUND ELSEWHERE ONLINE OR OFFLINE; OR (VIII) THE INTERNET GENERALLY WILL OPERATE. NO DATA, ADVICE, OR INFORMATION OBTAINED FROM THE DHSC PARTIES SHALL CREATE ANY WARRANTY. USER WAIVES ANY STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
- USER UNDERSTANDS AND AGREES THAT DHSC IS NOT A MEDICAL SERVICES PROVIDER AND THAT ANY ADVICE OR CONSULTATION USER OBTAINS FROM THE WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY. USER IS ENCOURAGED TO SEEK THE ADVICE OF LICENSED MEDICAL COUNSEL REGARDING ANY HEALTH-RELATED QUESTIONS INCLUDING, WITHOUT LIMITATION, USER’S DERMATOLOGICAL ISSUES. DHSC CANNOT AND DOES NOT PROVIDE ANY TYPE OF MEDICAL ADVICE, EXPLANATION, OPINION, OR RECOMMENDATION ABOUT USER’S MEDICAL CONDITIONS.
- Website Uses.
- Website Usage Generally. The Website generally allows a User, pursuant to the terms and conditions herein, to explore DHSC’s product catalog, learn about DHSC’s products (“Products”), and purchase Products subject to their respective availabilities.
- Limited License. Access and utilization of the Website is licensed and not sold. Subject to the terms and conditions herein and subject to applicable Services Orders, DHSC grants to User a limited, non-exclusive, revocable license to access and use the Website only to explore DHSC’s Product catalog, contact DHSC, learn about DHSC’s Products, and purchase Products to be delivered to User within the United States for User’s personal and non-commercial use and not for re-sale, and not for any other purpose.
- Website Updates. User acknowledges that DHSC may from time to time issue upgraded versions of the Website and may automatically electronically upgrade the version of the Website or components thereof. User consents to such automatic upgrading.
- Website Monitoring. DHSC reserves the right to monitor the Website and User’s activity thereon.
- Registration. To use certain features of the Website, User may be asked to register with the Website. User agrees: (i) to provide true, accurate, current and complete information (“User Information”) about itself as prompted by any registration form; and (ii) to maintain and promptly update its User Information to keep it true, accurate, current and complete. If DHSC has reasonable grounds to suspect that User Information is untrue, inaccurate, not current or incomplete, DHSC may suspend or terminate User’s access to and use of the Website (or any portion thereof). User is solely and fully responsible for maintaining the confidentiality of its username and password (“Credentials”) and is solely and fully responsible for all activities that occur under its Credentials. User agrees to: (i) immediately notify DHSC of any unauthorized use of User’s Credentials or any other breach of security; and (ii) ensure that User logs off from its account at the end of each web applications session. DHSC cannot and will not be liable for any loss or damage arising from User’s failure to comply with this section.
- Product Purchases.
- General. If User purchases any Products that DHSC offers on the Website, User authorizes DHSC and/or its designated payment processors to store User’s payment information and other related information. Charges for purchased Products will be as set forth in a Purchase Order. All prices for Products are subject to change without notice.
- Payment Method. DHSC may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain payment providers. User authorizes DHSC to charge User for Products through any payment method(s) User selects when purchasing the Products (the “Payment Method”) and User agrees to make payment using such Payment Method(s) (DHSC may, from time to time, receive and use updated payment method information provided by User or that financial institutions or payment processors may provide to DHSC to update information related to User’s Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between User and the financial institution, credit card issuer, or other provider of User’s chosen Payment Methods (the “Payment Method Provider”). If DHSC does not receive payment from User’s Payment Method Provider, User agrees to directly pay all amounts due upon demand from DHSC.
- Payment Processors. Ordering Products through the Website involves utilizing the secured server of a payment processing service provider (“PSP,” e.g., Vantiv Integrated Payments). Neither PSP nor any person or company related to PSP holds any ownership interest in the Website or DHSC, nor receives any financial benefit from the Website or DHSC other than a fee paid by DHSC to PSP for the services performed by PSP. DHSC makes absolutely no representations and/or warranties, and provides no assurances, regarding the PSP, the PSP owner, or the quality, availability, legality, or description of the payment processing services offered thereon. DHSC EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PSP AND/OR THE SERVICES OFFERED THEREON.
- Product Shipping Policy. Products purchased on the Website are subject to DHSC’s shipping policy as set forth at https://www.dr.hauschka.com/en_US/customer-service/shipping-information/. User understands and agrees to the terms of DHSC’s shipping policy which are incorporated herein.
- Product Warranty; Return Policy. Products purchased on the Website are subject to DHSC’s Warranty and Return Policy terms of which are located at https://www.dr.hauschka.com/en_US/customer-service/return-policy/. User understands and agrees to the terms of DHSC’s Warranty and Return Policy which are incorporated herein. The Product Warranty and Return Policy only applies to Products which are purchased from the Website or from DHSC’s authorized resellers.
- Prohibition Against Resale. Without limiting the scope of prohibitions outlined in Section 6, User may not re-sell Products purchased from the Website. User understands and acknowledges that Product warranties and return policies do not apply to Products re-sold without express written authorization from DHSC. In the event that User wishes to become an Authorized Reseller of DHSC’s Product, User may reach out to DHSC at firstname.lastname@example.org.
- Promotional Codes. User understands and acknowledges that promotional or discount codes will be utilized only subject to their specific terms and conditions, including expirations and restrictions on aggregating or combining associated promotions or discounts, to which User agrees to be bound.
- Proprietary Rights. User acknowledges and agrees that the Website, media and content thereon, and any patents, copyrights, trade secrets, moral rights, trademarks, know-how, or any related or other rights or interests or other intangible assets recognized under any laws, regulations, or international conventions, in any country or jurisdiction in the world (“Intellectual Property Rights”) contained therein is the sole property of DHSC, its wholly-owned subsidiaries, affiliates, licensors (e.g., WALA-Heilmittel GmbH), suppliers, or other third parties. All rights and permissions in and to the Website not expressly granted herein are reserved by DHSC.
- Website Prohibitions. User agrees that it may NOT: (a) use the Website or any Products, content, or information available through the Website for any unauthorized purpose including, without limitation, reselling Products; (b) interfere with or damage the Website including, without limitation, through the use of viruses, spyware, malware, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, or methods that in any way reproduce or circumvent the navigational structure or presentation of the Website; (c) use the Website to collect, store, or distribute any information about any other person in violation of any law, including information related to persons under 13 years of age; (d) use to Website to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third-party privacy rights; (e) use the Website to impersonate any person, company, or entity; (f) modify, sublicense, assign, give, transfer, translate, sell, resell, reverse engineer, decipher, decompile, or otherwise disassemble any code, data, content, or information available through the Website or any software components used on or for the Website or access thereto; (g) attempt to gain unauthorized access to the Website or its related systems or networks; (h) use any third-party software or scripts to collect information from or through the Website; (i) distribute, re-distribute, or permit transfer of the Website or content or information available through the Website in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions; (j) use the Website to disseminate, store, or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail; (k) use the Website to disseminate, store, or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the copyright, trademark, patent, trade secret, trade name or other intellectual property right of any person, entity, partnership, organization, association or otherwise; (l) adapt, translate, or create any derivative works of the Website or content or media thereon, or merge the Website into any other software; (m) use the Website to display or promote spyware, adware, spam, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, the sale of tobacco or alcohol to persons under twenty-one (21) years of age, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, or weapons and accessories; (n) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of DHSC or its affiliates, partners, suppliers or the licensors of the Website or materials available thereon or otherwise obscure or modify the any manner in which the Website is displayed; (n) share access to User’s account; (o) access or utilize the Website without permission on a stolen or lost device; or (p) assist any third-party in doing any of the foregoing.
- Security of User’s System. User shall be solely responsible for the security, confidentiality, and integrity of all content that User receives, transmits through or stores via the Website, or any computer, mobile device, or related equipment that is used to access the Website. User is solely responsible for any carrier rates for phone, data, and text messaging which may apply to User’s use of the Website.
- Term and Termination. This Agreement remains effective from the moment User accesses or uses the Website until terminated. This Agreement will terminate automatically without notice from the DHSC if User fails to comply with any provision of this Agreement (a “Default”). DHSC reserves the right, in its sole discretion and without prior notice to User, at any time and for any reason, to: (i) remove or disable access to all or any portion of the Website; (ii) suspend User’s access to or use of all or any portion of the Website; and (iii) terminate this Agreement.
- Links. The Website may contain links to other Internet sites and resources, and User hereby acknowledges and agrees that: (i) DHSC shall not be responsible for the availability of such external sites or resources; and (ii) DHSC does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. User agrees that DHSC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such website or resource.
- Limited Liability.To the fullest extent permitted by law:
- USER ACCESSES THE WEBSITE AT HIS/HER OWN RISK AND IS SINGULARLY RESPONSIBLE FOR ANY LOSS, DAMAGE, OR COSTS INCURRED DURING SUCH ACTIVITY. DHSC, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUCCESSORS, OR ASSIGNS (“DHSC PARTIES”) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, UNDER ANY LEGAL THEORY, ARISING FROM OR RELATING TO: (I) THE WEBSITE’S AVAILABILITY; (II) THE ACTS, OMISSIONS, OR CONDUCT OF ANY USER OR THIRD-PARTY, WHETHER ONLINE OR OFFLINE; (III) ANY WEBSITE CONTENT; (IV) ANY GOODS OR SERVICES ACQUIRED OR INFORMATION OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE; (V) ANY USE OF GOODS OR SERVICES MADE AVAILABLE ON ANY INTERNET RESOURCE OR WEBPAGE LINKED TO THE WEBSITE; (VI) TECHNICAL MALFUNCTIONS OF ANY TELEPHONE SYSTEM, CELLULAR NETWORK, CABLE SYSTEM, COMPUTER EQUIPMENT, SERVER, PROVIDER, OR SOFTWARE; (VII) INJURY OR DAMAGE TO USER’S COMPUTER OR EQUIPMENT RESULTING FROM ACCESS TO OR USE OF THE WEBSITE INCLUDING, BUT NOT LIMITED TO, WEB PAGE VIEWING, FILE DOWNLOADING OR STREAMING, SERVER USE OR ACCESS, OR FOLLOWING WEBSITE LINKS; (VIII) ANY INCORRECT OR INACCURATE CONTENT POSTED ON OR RECEIVED FROM THE WEBSITE, REGARDLESS OF THE CAUSE OF SUCH INACCURACY. THE DHSC PARTIES SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT OF ANY USER OF THE WEBSITE; OR (X) ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OPERATIONAL DELAY, COMMUNICATION LINE FAILURE, OR THEFT, BREACH, DESTRUCTION, OR ALTERATION OF USER’S COMMUNICATION.
- USER’S ACCESS OR USE OF ANY THIRD-PARTY INTERNET RESOURCE LINKED TO OR FROM THE WEBSITE, OR USER’S USE OF GOODS OR SERVICES FROM THIRD-PARTY INTERNET RESOURCES LINKED TO OR FROM THE WEBSITE, IS MADE AT USER’S OWN RISK. USER HEREBY RELEASES THE DHSC PARTIES FROM ANY DAMAGES USER SUFFERS FROM USER’S ACCESS TO THIRD-PARTY INTERNET RESOURCES, AND USER AGREES NOT TO MAKE ANY CLAIMS AGAINST THE DHSC PARTIES ARISING FROM ANY PURCHASE OR ACQUISITION OF GOODS AND SERVICES MADE AVAILABLE THROUGH THE WEBSITE OR THROUGH THIRD-PARTY INTERNET RESOURCES.
- THE DHSC PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE FAILURE, BY ANY PARTY, TO PROTECT USER PASSWORDS OR ACCOUNT INFORMATION. THE DHSC PARTIES SHALL NOT BE LIABLE FOR ANY FAILURE OR PERFORMANCE DELAY UNDER THE AGREEMENT DUE TO CIRCUMSTANCES BEYOND THE DHSC PARTIES’ CONTROL INCLUDING, BUT NOT LIMITED TO, NATURAL CATASTROPHES, GOVERNMENTAL ACTS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATION SYSTEM INTERRUPTIONS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION INTERRUPTIONS, OR ANY INABILITY TO ACQUIRE MATERIALS OR SUPPLIES. THE DHSC PARTIES SHALL NOT BE LIABLE FOR ANY ILLEGAL, ABUSIVE, OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER INCLUDING, WITHOUT LIMITATION, USING THE WEBSITE TO INFRINGE THE COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT(S) OF ANOTHER. THE DHSC PARTIES SHALL NOT BE LIABLE FOR COMPLIANCE OR LACK THEREOF BY ANY THIRD-PARTY VENDORS WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS.
- D. WITHOUT LIMITING THE FOREGOING, THE DHSC PARTIES’ AGGREGATE LIABILITY TO USER OR ANY THIRD-PARTY, IN ANY MATTER ARISING FROM OR RELATED TO THE WEBSITE OR THE AGREEMENT, SHALL NOT EXCEED THE SUM OF ONE HUNDRED DOLLARS ($100.00).
- Occurrence. User agrees to defend the DHSC Parties to the fullest extent permitted by law, against any and all claims, demands and/or actions and indemnify and hold the DHSC Parties harmless from and against any and all losses, damages, costs and expenses, including reasonable attorney’s fees, (each a “Claim), regardless of whether such Claim is due to a DHSC Party’s active or passive negligence, arising out of or relating to: (i) any User breach of any provision of this Agreement and/or any representation or warranty identified herein; (ii) User’s use or misuse of the Website, including without limitation any statement, data, or content made, transmitted, received, or republished by User which is infringing or otherwise prohibited as unacceptable in Section 6; (iii) any interactions with third-parties or products and services obtained thereform; and (iv) any expenses DHSC incurs in enforcing this Section including, without limitation, reasonable attorney’s fees and costs.
- Procedures. DHSC will promptly notify User of any claim or action with respect to any claim for indemnification hereunder, and User will undertake the defense or settlement and all related costs and expenses of any claim or action for which it has an indemnification obligation. User will have the right to settle or compromise any action to which its indemnification is applicable, except that User may not agree to any settlement without the prior written consent of DHSC if such settlement would cause DHSC to undertake any action, assume any liability, pay any monies, or acknowledge any wrongdoing or have a judgment entered against it. Notwithstanding the foregoing, DHSC will have the right to undertake the defense of any claim asserted against it at User’s expense in the event that: (i) User fails to assume the defense of such claim; (ii) DHSC reasonably determines that an adverse outcome could be material to DHSC’s business; (iii) there are conflicts between User’s and DHSC’s interests in such litigation; or (iv) DHSC reasonably believes that User does not have the financial resources needed to satisfy its indemnification obligation in the event of an adverse outcome.
- Take-Down Requests, DMCA.
DHSC expressly prohibits users from uploading, posting, or otherwise distributing through the Website any content which may violate another party’s Intellectual Property Rights, privacy, publicity, or other rights. If any User believes any Website content violates or otherwise infringes upon any of User’s rights, User is encouraged to contact DHSC immediately to request that the allegedly offending content (“Offending Content”) to be removed from the Website. To make such a request (“Take-Down Request”), User should provide DHSC’s designated agent, listed below, with:
- the identity of the Offending Content in sufficient detail such that it can be readily located (e.g., “The photograph of available at https://www.dr.hauschka.com/item123.jpg”);
- User’s name, mailing address, email address, and telephone number; and
- the name, user id, email, telephone phone number, and mailing address of the person User believes posted the Offending Content (as available).
In accordance with the Digital Millennium Copyright Act (“DMCA”), DHSC has designated a Copyright Agent who is charged with receiving notification of alleged copyright violations and may accept notification of other offending Website content. If User believes in good faith that material appearing on this website infringes its copyright, provide notification, pursuant to 17 U.S.C. § 512(c)(3)(A), to our Copyright Agent at:
Dr. Hauschka Skin Care, Inc.
Attn: Director of Marketing
20 Industrial Dr.
South Deerfield, MA 01373
Similarly, the DMCA provides that if one, in good faith, believe that a notice of copyright infringement has been wrongfully filed against him, he may send to our Copyright Agent a counter notice, subject to the requirements set forth in 17 U.S.C. § 512(g)(3).
Lastly, it should be noted that individuals making misrepresentations made in alleging that material appearing on this website constitutes copyright infringement may be liable for damages pursuant to 17 U.S.C. § 512(f). DHSC will process proper Take-Down Requests, will promptly remove or disable access to any offensive or infringing content, and will terminate the accounts of repeat infringers.
- Dispute Resolution Protocol.
- Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Massachusetts and the United States of America, without regard to its conflict-of-law provisions. User and DHSC agree to submit to the personal jurisdiction of the state and federal courts located within Boston, Massachusetts for any actions involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
- Negotiations. In the event any dispute arises - except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights - User and DHSC agree to first attempt to negotiate the resolution any dispute, informally for at least thirty (30) days before initiating any arbitration or court proceeding.
- Other parties. User accept that, as a corporation, DHSC has an interest in limiting the personal liability of its officers and employees. User agrees that it will not bring any claim personally against DHSC’s officers or employees in respect of any losses User suffers in connection with the Website. Without prejudice to the foregoing, User agree that the limitations of warranties and liability set out in this Agreement will protect DHSC’s officers, employees, agents, subsidiaries, successors, assigns, and sub-contractors as well as DHSC.
- Binding Arbitration.
- . All claims arising from use of the Website (except those disputes involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or User’s outstanding payment of fees due hereunder) will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. User understands that if either party elects to arbitrate, neither party will have the right to sue in court or have a jury trial. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes both of which are available at the AAA website http://www.adr.org. The Parties will submit briefs of no more than 10 pages and the arbitration hearing will be limited to two (2) days maximum. The arbitrator must apply Massachusetts law and any award may be challenged if the arbitrator fails to do so. Unless otherwise agreed by the Parties, arbitration will take place in Boston, Massachusetts. User’s arbitration fees and User’s share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If User’s claim for damages does not exceed $10,000, DHSC will pay User’s share of arbitration fees unless the arbitrator finds that either the substance of User’s claim or the relief sought was frivolous or brought for an improper purpose as determined pursuant to Federal Rule of Civil Procedure 11(b). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing. The Parties may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER. USER AND DHSC AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN DHSC AND USER INDIVIDUALLY. USER ACKNOWLEDGES AND AGREES THAT USER AND DHSC ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE USER’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING.
- WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING THERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Limitation of Action. No action or proceeding shall lie or be maintained by User against the DHSC Parties, upon any claim, counterclaim, or cross-claim arising out of or based upon this Agreement, or by reason of any act or omission or any requirements relating to the giving of notices or information required hereunder, unless such action or proceeding shall be commenced within one (1) year of when the cause of action accrues, and otherwise such cause of action is permanently barred. User agrees to exclude, in its entirety, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
- No Waiver. To the maximum extent permitted by applicable law: (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by a Party, in whole or in Part, by a waiver or renunciation of the claim or right unless in writing signed by such Party; (ii) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
- Entire Agreement and Modification. This Agreement, along with it expressly-incorporated policies and any Purchase Orders, constitutes the complete and exclusive statement of the agreement between the Parties with respect to the Website and purchases of Products therewith and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the Parties concerning the same. This Agreement may be modified by DHSC and User may agree in writing.
- Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
- Remedies. The rights granted by DHSC herein are of a special, unique, and intellectual nature, which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages in an action at law. In addition, User acknowledges that during the course of accessing or using the Website, User will or may have access to DHSC’s proprietary information, including, without limitation, Website code and related materials. Accordingly, the breach by User of the provisions of this Agreement concerning DHSC’s proprietary rights or the unauthorized re-sale of Products will cause DHSC irreparable injury and damage for which DHSC will be entitled, without posting any bond or security, to seek injunctive or other equitable relief. The granting of equitable relief will not be construed as a waiver of any other rights of DHSC in law or in equity. User agrees that the rights and remedies of User in the event of a breach of this Agreement by DHSC shall be limited to the right to recover damages, if any, in an action at law, and in no event shall User be entitled to terminate or rescind this Agreement or enjoin or restrain DHSC’s use or exploitation of the Submissions.
- Assignment. DHSC may assign any of its rights or delegate any of its obligations hereunder to any person or entity at any time without User’s consent. User may not assign any of its rights or delegate any of its obligations hereunder to any person or entity without the prior written consent of DHSC. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement, except such rights as will inure to a successor or permitted assignee pursuant to this Section.
- California Consumer Complaints. Pursuant to Cal. Civ. Code. § 1789.3, user complaints or requests for further information may be sent to email@example.com. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be reached at 1625 North Market Blvd., Suite N. 112 Sacramento, CA 95834 (800) 952-5210.
- Do-Not-Track. To the extent do-not-track implementations from User’s browser(s) prevent or impede the delivery of data or information provided through the Website, those do-not-track implementations are not honored.
- User Representations and Warranties. User represents and warrants that: (i) it is not prevented from and has the legal right and authority to enter into this agreement; (ii) its performance and the rights granted to DHSC hereunder shall not conflict with or violate any law, commitment, or agreement it has to any other person or entity.
- Survival. Sections 3, 5-6, 10-11, and 14-15 shall survive the termination of this Agreement.