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Terms of Service
Updated: 03/15/2024
Welcome to www.itsa10haircare.com (Website). Please read these Terms of Service and the posted Privacy Policy (collectively “Terms of Service”) carefully before visiting our website, ordering our products, or utilizing our services, features, promotions, credits, content, apps, or purchasing our products (collectively “Services”). We are located in the United States. If you are using the Services outside of the United States, you agree that by accessing this Website and using our Services, you waived all international treaties and rights you may have in your country. These Terms of Service are a legally binding contract for your use of our Website and Services. You represent and warrant that you are at least 18 years of age.
By browsing, registering, or purchasing our Services through our Website or our mobile applications (“Apps”), you agree to these Terms of Service and any additional rules, policies, and procedures that may be published from time to time on our Website or through our Services. If additional terms are posted, those terms are incorporated by reference to the posted Terms of Service. If you do not accept these Terms of Service, you are not permitted to, and you must not, access or use the Services or purchase products from us.
ARBITRATION NOTICE AND CLASS ACTION WAIVER.
YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, AS DETAILED IN THE “DISPUTE RESOLUTION” SECTION BELOW.
CONTENT DISCLAIMER.
For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, illustrations, videos, audio clips, artwork, products, written posts and comments, scripts, graphics, and interactive features, provided or otherwise made accessible on or through the Services. Although we do our best to ensure our content is accurate and up to date, there may be mistakes or misstatements in the Content. Also, our advice is not reviewed by the Federal Drug Administration (“FDA”), and it is not intended to treat or cure any medical conditions. Our Content is not a substitute for information from experts or professionals in an applicable area. You agree that all Content relied upon by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other person resulting therefrom. We do not guarantee that any Content will be made available on our Website, Apps, or Services. We reserve the right, but not the obligation, to: (i) remove, edit, or modify any Content or Services in our sole discretion, at any time, without notice to you and for any reason or for no reason at all; and/or (ii) remove or block any Content from our Website and Services.
USER CONTENT TERMS AND DISCLAIMER.
Any user Content submitted to us by any method including uploaded, distributed, or posted to the Website, Apps, or Services, however transmitted, including, without limitation, product reviews, photographs, videos, or comments (collectively “User Content”), is the sole responsibility and liability of the person who originated the User Content. User Content includes Content provided third-party services such as a social media accounts (e.g., Facebook, Instagram, Twitter, etc.). If User Content references or tags any of our products or Services, the author represents that all such User Content is accurate, complete, up-to-date, and in compliance with all applicable laws, rules, and regulations. User Content that you submit must not: (i) contain any third-party intellectual property or privacy rights of a third-party; (ii) be defamatory or threatening; (iii) impersonate any person or entity; (iv) contain unauthorized advertising; or (v) transmit or distribute any virus and/or other code that has contaminating or destructive elements.
Upon submission of User Content, the author grants us a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers), fully paid, royalty-free license and right to use, copy, transmit, distribute, publicly perform, and display (through all media now known or hereafter created), edit, modify, and make derivative works from your User Content (including, without limitation, your name and likeness, photographs, and testimonials) for any purpose whatsoever, commercial or otherwise, without compensation to you. This license is extended to all users of our Website, Apps, and Services. This License will extend in perpetuity including after your termination of your Account or the Services.
Any feedback, reviews, comments, suggestions, or recommendations for modifications, improvements or changes to our Website, Apps, or Services you provide to us (collectively “Feedback”) shall be solely owned by us including all intellectual property rights therein and thereto. Your submission constitutes your agreement to irrevocably assign to us all of your right, title, and interest in and to all Feedback, including, without limitation, all worldwide patent, copyright, trade secret and other proprietary or intellectual property rights therein.
We reserve the right to access, read, preserve, and disclose any information or User Content as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce these Terms of Service, including, without limitation, the investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of us, our users, and the public.
We do not investigate or confirm any User Content. We disclaim any and all accuracy to statements, images, or other representations, warranties, or guarantees contained within any User Content. Such content is viewed and relied upon at your sole risk and is presented as is.
INTELLECTUAL PROPERTY RIGHTS.
The Website, Apps, and Services may contain Content specifically owned or licensed to us and is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You agree to abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. You agree to not sell, license, rent, or otherwise use or exploit any Content for commercial use or in violate any third-party intellectual property ownership and rights.
LIMITED, REVOCABLE USE LICENSE.
Our Content, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the Website, Apps, and Services, are owned, controlled, and/or licensed by or to us. Subject to these Terms of Service, we grant each user of a limited worldwide, non-exclusive, non-sublicensable, non-transferable and revocable license to use (i.e., to download and display locally) Content solely for their personal purposes. No commercial license is granted to you. You agree not to distribute, copy, or duplicate our Content and Services for a commercial purpose.
SMS TERMS.
Some of our Services may allow you to receive SMS, MMS, or other text messages which promote our Services (each, a “Text Message”). To the extent you agreed to receive such Text Messages from us sent directly to your mobile phone, the following terms shall apply:
Express Written Consent.
By providing us with your wireless phone number, you confirm that you want us to send you information that we think may be of interest to you to such phone number, which may include using automated dialing technology, to send you Text Messages at the wireless number you provided.
Fees Apply.
Your mobile provider’s standard message and data rates may apply to our confirmation Text Message and all subsequent Text Messages depending upon your individual data and/rate plan by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text alerts, you may not receive the Text Messages from us. You can opt-out of receiving any further Text Messages from us by replying “STOP” to any Text Message you receive from us.
Text Disclaimer.
We will not be liable for any delays in the receipt of any Text Messages, as delivery is subject to effective transmission from your network operator. Text Message services are provided on an “AS IS” basis. Data obtained from you in connection with any Text Message services may include your cell phone number, your provider’s name, and the date, time, and content of your messages. We may use this information to contact you and to provide the Services you request from us.
Opt-Out or Stop Text Message.
You can opt-out of receiving any further Text Messages from us by replying “STOP” to any Text Message you receive from us.
PROHIBITED USER CONDUCT.
You agree not to take the following actions: (i) any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Website, Apps, or Services; (iii) bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, other accounts, our computer systems, or networks; (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of our Website; (v) harvest or scrape any Content; (vi) distribute false, misleading, untruthful, unlawful, or inaccurate information; (vii) promote software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, or interfere with the proper function of any software, hardware, or our equipment or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third-party.
You further agree not to directly or indirectly take the following actions: (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including, without limitation, any application); (ii) modify, or otherwise create derivative works of any part of our Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder to any other party or third person.
ORDERING, DELIVERY, PAYMENTS, BILLING AND RETURN.
Orders.
You may order our products and Services for your personal, non-commercial use, and once delivered to you may not be resold, redistributed, exported, or used for any other commercial purpose, including through online sales channels or online marketplaces. The rights you have under these Terms of Service are personal to you and are non-transferable. Please note that we cannot offer refunds, exchanges, or customer service for products that have been acquired from an unauthorized reseller, including, but not limited to, any seller on Amazon, eBay, or similar online marketplaces. All orders of our products must be for personal use only. By purchasing our products, you agree not to resell or distribute such products for any commercial purposes, including through e-commerce sites (e.g., eBay, Amazon, Facebook) or provide them to any person or entity who you know is likely to sell them on such sites. If we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place.
Confirmation.
After submitting your order and providing a payment method, a page will be displayed confirming that the order was received. An email confirming receipt of the order will also be sent to you shortly after the order is submitted. If an order confirmation does not arrive within 24 hours after submission, you agree to contact It’s a 10 Haircare Online Customer Service by email at info@itsa10haircare.com for assistance.
Shipping.
It’s a 10 Haircare orders are shipped on business days (Monday through Friday 9am-4:00pm excluding major holidays). Only authorized orders will be processed and shipped. All orders are subject to authorization. If an order was not shipped, was incorrectly shipped, is missing a product or contains a damaged or defective item, You agree to contact It’s a 10 Haircare Online Customer Service by email at info@itsa10haircare.com within thirty (30) days for assistance. It’s a 10 Haircare isn’t responsible for any unforeseen, or Force Majeure events beyond our control. It's a 10 Haircare is not responsible for any lost or damaged packages once delivered by the carrier. Shipping & Handling Fees may apply to all orders. We offer Free Standard Shipping on orders within the Continental United States only over $35.00 only. A $5.00 Shipping Fee will be applied to orders under $35.00. We do not offer Free shipping for P.O. Boxes. P.O. Boxes will have a $9.99 shipping fee applied. A flat fee of $9.99 will be applied to P.O. Box orders and orders going to Hawaii and Alaska.
Terms of Payment.
We use a third-party payment processor (“Payment Processor”). The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
REFUND AND RETURN POLICY.
Returns.
We are unable to offer refunds, returns, or exchanges for our products as they are personal care items. All sales are FINAL. Please note It’s A 10 Haircare reserves the right to refuse all returns, reshipments, and refunds. In the unlikely event that a product arrived damaged or defective the customer must contact customer service at info@itsa10haircare.com within 48 hours of receipt. Customer must include photos of the issue and a screenshot of your order confirmation email. If you received an incorrect item, please provide us with your order number along with a photo of the incorrect item you received.
Please double check your shipping address before checking out. We cannot accommodate address changes. You will have to file a claim with the shipping carrier that is on your tracking information.
Refunds.
Once your return is received and inspected, we will send you an email to notify you that we have received your returned item. We will also notify you of the approval or rejection of your refund. If you are approved, then your refund will be processed, and a credit will automatically be applied to your credit card or original method of payment, within a certain amount of days There are certain situations where only partial refunds are granted this includes any item not in its original condition, is damaged or missing parts for reasons not due to our error and any item that is returned more than 30 days after delivery.
Late or missing refunds.
If you haven’t received a refund yet, first check your bank account again. Then contact your credit card company, it may take some time before your refund is officially posted. Next contact your bank. There is often some processing time before a refund is posted. If you’ve done all of this and you still have not received your refund yet, please contact us at info@itsa10haircare.com.
Exchanges.
We only replace items if they are defective, damaged or incorrectly shipped the wrong item. Please contact us at info@itsa10haircare.com with any questions.
Subscribe & Save Orders.
By clicking the "Subscribe & Save 10%" option at checkout, you confirm that your product(s) will automatically renew and your credit card will be automatically changed the subscription discounted price according to the order summary page or until you cancel your subscription. Orders that are on a recurring subscription basis may be cancelled at anytime by contacting info@itsa10haircare.com or by logging in here and cancelling the subscription.
LOYALTY REWARDS PROGRAM.
MIRACLE REWARDS CLUB
The terms and conditions outlined in this Loyalty Program Agreement (“Loyalty Agreement”) govern membership in the Miracle Rewards Club. Participants in the Program are subject to the terms and conditions herein.
Your enrollment in the Program is expressly conditioned upon your compliance with this Loyalty Agreement. By enrolling into the Program, you (“you” or “Member”) agree that you have read, understand, and agree to be bound by this Loyalty Agreement, including the Terms of Service and Privacy Policy, which are incorporated herein by reference, and to comply with all applicable U.S. laws and regulations. If you do not agree with the terms of this Loyalty Agreement, please do not become a Member or terminate your membership, if applicable. Program terms and conditions are void to the extent where prohibited by law. Taxes may apply where required by law. Your enrollment in the Program is subject to present and future Program terms and conditions. This Loyalty Agreement does not alter in any way, the terms, or conditions of any other agreement you may have with us. If you do not agree to by bound by this Loyalty Agreement, our website Privacy Policy, and our website Terms of Service, you cannot enroll in the Program.
The Program is offered at the sole discretion of It’s A 10 Haircare. or its affiliates or subsidiaries (“It’s A 10 Haircare” or “we”). Membership is open to individuals who are legal residents of the United States (including its territories and possessions) and at least 18 years old or the age of majority in the Member’s jurisdiction of residence, whichever is older. Membership in the Program is voluntary. No purchase or payment of any kind is necessary in order to enroll in the Program. The Program is available to individuals for their personal use only and is limited to one account per individual. Corporations, associations, or other groups may not enroll in the Program. Employees of It’s A 10 Haircare and their dependents are not eligible to enroll in the Program. It’s A 10 Haircare reserves the right to limit the number of participants in the Program. Loyalty Program is valid only at ITSA10HAIRCARE.COM. This offer is void at affiliate sites or retail locations.
- MEMBERSHIP ENROLLMENT.
Eligible individuals may enroll in the Program by visiting ITSA10HAIRCARE.COM (collectively, “Site”), creating an account, and joining the Program. Individuals who already have an account on the Site are automatically enrolled in the Program. You may be required to provide your full name, telephone number, mailing address, email address, and other type of personal information and to create a password in order to enroll. Once you provide this information, you will be enrolled in the Program and provided a Member account. You are solely responsible for maintaining the accuracy of your account information and for updating it as required. Members must provide the required information to be enrolled and to be eligible for benefits and rewards, such as free gifts with purchase (“Rewards”). Only one Member account may be associated with a single email address. In the event of a dispute over ownership of the Member account, the member will be deemed to be the authorized account holder of the email address submitted at the time of enrollment. For purposes of this Loyalty Agreement, the “authorized account holder” is the natural person who is assigned to the submitted email address by an internet provider, online service provider, or other organization (e.g., business, educational institution, etc.) that is responsible for assigning email addresses for the domain associated with the submitted email address.
The Program is a rewards program that benefits its Members with points every time they shop. You may earn points (“Points”) for each dollar you spend on online transactions on ITSA10HAIRCARE.COM excluding federal, state, and local taxes, shipping charges, employee discounts, commercial account purchases, charitable donations, returns, refunds, and items purchased with a gift card, merchandise credits, or any Rewards or other awards (“qualifying purchases”). For your purchase to qualify to earn Points, you must be signed into your Member account at the time of purchase; or provide your Program member identification (that is, the email address you registered under the Program), when making a qualifying purchase. If you return items from a qualifying purchase, the appropriate number of Points will be automatically deducted from your account balance. It’s A 10 Haircare may also, at its sole discretion, provide additional Points in connection with certain transactions and promotions. You are able to earn Points and reach Program loyalty tiers by making eligible purchases or taking certain other Program actions. Once you earn Points and reach a certain loyalty tier, you may be eligible for certain Rewards applicable to that tier, which may change from time to time, and may be offered on a limited basis. Eligible purchases and other opportunities to earn Points and reach Program loyalty tiers will be posted on the Site or may be published through other media (for example, in marketing communications and social media). Visit our FAQs to learn more about earning points and reaching the Program loyalty tiers.
Points and Rewards have no cash value, are non-negotiable, and cannot be redeemed either in whole or in part for cash. Only the Member paying for products in a qualifying purchase may accumulate Points or Rewards. Points do not constitute property of any Member or other person and may not be brokered, bartered, pledged, gifted, sold, or otherwise transferred for consideration, other than by Its A 10 Haircare or as expressly provided for in this Loyalty Agreement, and any receipt or use of Points in violation of the terms and conditions herein will render such Points void. Neither accounts nor Rewards or Points may be shared or combined. Points are not capable of being combined or transferred to any other type of It’s A 10 Haircare promotion or award. All points and rewards expire after (12) months. There will be no exceptions or extensions past 12 months. It's A 10 Haircare reserves the right to cancel or remove any points or rewards at their discretion at any time.
- REWARDS & REDEMPTION.
The number of Points necessary to earn a Reward is determined by Its A 10 Haircare in its sole discretion and may be changed without prior notice to you. You may view how many Points you have accumulated by signing into your online It’s A 10 Haircare account and visiting your account details. You may redeem Rewards by accessing your account at ITSA10HAIRCARE.COM. Once you select your Reward, you will receive a unique code (“Code”), which you must enter at checkout with your purchase. Points used to redeem a Reward will be deducted from the total Points available in your Member account. Points may not be used towards purchases of It’s A 10 Haircare gift certificates, charitable items, promotional value sets, sales tax, or shipping charges. We reserve the right to change Rewards, how you earn Points, how you reach each Program tier, and how we evaluate and reward your eligible purchases and other Program activity. We reserve the right to place limits on the number of purchases or activities that are eligible for the Program or for any given tier, the number or types of Rewards you may receive or earn in any given tier, in a given time period, or for the duration of the Program, or any combination thereof. Rewards can only be redeemed on the Site, unless otherwise expressly authorized by Its A 10 Haircare. You cannot combine Rewards with any other coupon or promotion. Rewards cannot be exchanged or returned for another product or service or a monetary refund. The products available through the Program are for your personal use only. You may not sell or resell any of the products you purchase or otherwise receive from us through the Program. We reserve the right, without notice, to cancel or reduce the quantity of any order to be filled or any products to provide to you that we believe, in our sole discretion, may result in a violation of this Loyalty Agreement. The Rewards and the Codes may expire in the event the Member does not redeem them in the six (6) months following their issuance.
As a member, you may periodically receive marketing emails from Its A 10 Haircare about the Program. You may opt-out of the marketing emails at any time, but operational emails will still be sent to you as it relates to your membership in the Program. Examples of these include the welcome email, Rewards updates, etc.
- ADDITIONAL REWARDS REDEMPTION.
It’s A 10 Haircare reserves the right to cancel, modify or restrict any aspect of the Program at any time with or without notice. Membership in the Program may be revoked at any time. Membership is nontransferable. Any abuse of the Program, failure to follow any terms of the Program, or any misrepresentation may subject Members to revocation of Membership and will affect eligibility for further enrollment in the Program. Further, It’s A 10 Haircare reserves the right to seek all remedies, whether available at law or at equity, criminal or civil, in the event Member defrauds or abuses the Program, fails to follow any terms of the Program, or makes any misrepresentation to Its A 10 Haircare. Program purchases, as reflected in It’s A 10 Haircare records, shall be deemed correct and It’s A 10 Haircare reserves the right to determine the qualification for any transaction and to correct or modify the Reward at any time based on It’s A 10 Haircare records and calculation of account information. It’s A 10 Haircare is not responsible for communications or Rewards lost due to an inaccuracy in or change of address or other contact information. The Program shall be governed by the laws of the State of Florida, U.S.A., without regard to its conflict of laws and principles. Further, Members in the Program submit solely to the jurisdiction of state or local courts in the state of Florida for adjudication of disputes arising from this Loyalty Agreement. Taxes on Rewards may apply where required by law. Any tax liability, including disclosure, is the sole responsibility of the Member. From time to time, Rewards balances and values will be updated in the Program. Please check your account details for the most up-to-date Point balances. It’s A 10 Haircare may waive compliance with these terms and conditions in its sole discretion and may run promotions from time to time that provide enhanced benefits to select Members. Notwithstanding the foregoing, It’s A 10 Haircare’s failure to exercise any of its rights under this Loyalty Agreement or its delay in enforcing or exercising any of those rights, shall not constitute a waiver of such rights. If you have concerns that a purchase or other activity was not properly applied to your account, you should contact us by emailing Info@itsA10Haircare.com. Your email must specify your name and email address associated with the Program, the date of the Program activity, and the issue you encountered. For more information about the Program or your Member account, email us at info@ItsA10Haircare.com.
The Program has no predetermined termination date and may continue until such time as It’s A 10 Haircare, at its sole discretion, elects to designate a termination date for the Program. In the event that the Program terminates, It’s A 10 Haircare will notify you of the termination date. It’s A 10 Haircare reserves the right, in its sole discretion and without notice, to expire a Member’s account after one (1) year of account inactivity. No extensions, cash refunds, or other exchanges will be allowed for Points that have been removed from an account based on inactivity. It’s A 10 Haircare reserves the right to deactivate an Account in which Points were obtained as a result of fraudulent activity or technical failures of any kind. In order to reactivate an account, or if you want to cancel enrollment in the Program, or request not to be contacted, you must notify It’s A 10 Haircare at info@ItsA10Haircare.com. All accrued Points will be lost if your Member account expires or is cancelled, and you will not be able to redeem any remaining Points for Rewards.
- LIMITATION OF LIABILITY AND ADDITIONAL TERMS.
BY ENROLLING IN THE PROGRAM AND REDEEMING THE REWARDS, THE MEMBER AGREES THAT IT’S A NEW 10, LLC, IT’S A 10 HAIRCARE AND THEIR AFFILIATED AND SUBSIDIARIES, THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR, AND SHALL BE HELD HARMLESS BY MEMBERS OR ANY PERSON FOR, ANY LIABILITY FOR ANY INJURIES, LOSSES, OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY DAMAGES) TO PERSONS, INCLUDING PERSONAL INJURY OR DEATH, OR PROPERTY ARISING IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM ANY ACTION TAKEN OR NEGLECTED TO BE TAKEN WITH REGARD TO THE PROGRAM, WITH THE EXCEPTION OF VERIFIED ERRORS IN POSTING POINTS TO ACCOUNTS. THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR: (I) LOSS OR MISDIRECTION OF, OR DELAY IN RECEIVING, ANY MEMBERSHIP APPLICATION, DATA, CORRESPONDENCE, OR REWARDS; (II) THEFT OR UNAUTHORIZED REDEMPTION OF CREDITS OR REWARDS OR USE OF A REWARD CAUSED BY CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF US OR OUR REPRESENTATIVES OR AGENTS; (III) ANY ACTS OR OMISSIONS OF THIRD-PARTIES; OR (IV) ANY ERRORS PUBLISHED IN RELATION TO THE PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY TYPOGRAPHICAL ERRORS, ERRORS OF DESCRIPTION, AND ERRORS IN THE CREDITING OR DEBITING OF CREDITS FROM MEMBER ACCOUNTS. WE RESERVE THE RIGHT TO CORRECT, WITHOUT NOTICE, ANY ERRORS. IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY DELAY IN OR FAILURE TO PERFORM DUE TO CAUSES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ANY ACT OF GOD, ACT OF WAR, NATURAL DISASTER, TERRORISM, OR ANY ACT OR OMISSION OF A THIRD-PARTY.
WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THESE PROGRAM RULES, EVERYTHING REGARDING THE PROGRAM, INCLUDING THE SITE AND THE REWARDS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
THIS SECTION WILL SURVIVE TERMINATION OF MEMBER’S ENROLLMENT IN THE PROGRAM.
TERMINATION.
We may terminate your access to all or any part of our Website, Apps, or the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your Account. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity provisions, and limitations of liability.
WARRANTY DISCLAIMER AND RELEASE.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding which users gain access to the Services, or how you may interpret or use the Content. You release us, our officers, directors, and employees from all liability arising out of or relating to your having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Website, Apps, or Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE WEBSITE, APPS, AND SERVICES INCLUDING THE CONTENT THEREON ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE WEBSITE, APPS, OR SERVICES: (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (III) FOR ANY DIRECT OR INDIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF THE GREATER OF: (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD; OR (B) $100.00. THESE LIMITATIONS WILL ONLY APPLY TO THE EXTENT PERMITTED BY LAW AND DO NOT APPLY TO DEATH OR PERSONAL INJURY RESULTING FROM OUR ACTS OR OMISSIONS OR TO LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
DISPUTE RESOLUTION.
ARBITRATION CLAUSE AND CLASS ACTION WAIVER
Any controversy or claim arising out of or relating to the Website, Apps, Services, or this Terms of Service Agreement, or the breach thereof, will be settled by binding arbitration and that we both waive our respective rights to a trial by jury and settle the dispute by submitting the controversy to binding arbitration. You and we agree to waive all rights to trial by jury or to any court.
The arbitration will be filed with, and administered by, Judicial Arbitration and Mediation Services (“JAMS”) under its consumer rules and procedures. Copies of the rules and procedures are available at the JAMS website at www.jamsadr.com/adr-rules-procedures/. The arbitration will be conducted by a single arbitrator who has the authority to determine jurisdiction and arbitrability issues as a preliminary matter, except the arbitrator shall not have the authority to determine whether the arbitration can proceed on behalf of or against a class.
Notwithstanding the rules of the JAMS, the following will apply to all arbitration actions:
- All arbitration proceedings will be held in Miami Florida.
- The arbitration agreement and the arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. To the extent that there is a conflict between the Federal Arbitration Act and Florida law, the Federal Arbitration Act prevails. The Federal Rules of Evidence will apply in all cases.
- The arbitrator shall have no authority to award punitive damages. Each Party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration, except where an applicable statute or other law allows for punitive damages.
Each party to the arbitration will be responsible for its own costs and expenses of arbitration, including legal and filing fees, except where an applicable statute or other law provides for recovery of legal fees and costs. The decision of the arbitrator will be final and binding on the parties and may, if necessary, be reduced to a judgment in any court of competent jurisdiction.
You and We agree and understand that maintaining confidentiality of disputes and dispute resolution is of the utmost importance and agree that each of Us will maintain the confidentiality of the entire arbitration process and will not disclose to any person not directly involved in the arbitration process:
- The substance of, or basis for, the controversy, dispute, or claim.
- The content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in arbitration.
- The terms or amount of any arbitration award.
- The rulings of the arbitrator(s) on the procedural and/or substantive issues involved in the case.
Neither You nor We agree the arbitrator shall have no authority to proceed on such a basis. Each party may assert a claim or counterclaim only in that party’s individual capacity and not as a plaintiff or class member in any purported class proceeding. Notwithstanding anything to the contrary in the JAMS rules, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class proceeding. UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE (1) OF YOU OR OUR CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the entire agreement to arbitrate will be null and void.
WAIVER OF CLASS ACTIONS.
YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS OR CLASS ARBITRATIONS.
INDEMNIFICATION.
You shall defend, indemnify, and hold Us harmless from all liabilities, claims and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services or Content in violation of these Terms of Service, or infringement by you, or any third-party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will assist and cooperate with Us in asserting any available defenses.
GOVERNING LAW AND JURISDICTION.
Subject to the Disputes section above, these Terms of Service shall be governed by and construed in accordance with the laws of the State of Florida, including its conflicts of law rules, and the laws of the United States of America. Subject to the Disputes section above, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and federal courts in Miami, Florida.
MODIFICATION.
We reserve the right, in our sole discretion, to modify or replace any portions of these Terms of Service, or change, suspend, or discontinue the Website, Apps, and Services, in whole or in part, (including, without limitation, the availability of any feature, database, or content) at any time without notice. We may also impose limits on certain features and Services or restrict your access to parts or all of the Services without notice or liability. While we will use commercially reasonable efforts to timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Subject to the Disputes section, your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
MISCELLANEOUS.
ENTIRE AGREEMENT AND SEVERABILITY.
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site and the Application, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between You and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
FORCE MAJEURE.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation, acts of God, pandemic or disease epidemic, embargoes, or blockades, national or regional emergency, or flood fire or explosion.
ASSIGNMENT.
These Terms of Service are personal to you, and are not assignable, transferable, or sublicensable by you except with our prior written consent. We may assign, transfer, or delegate any of our rights and obligations hereunder without consent.
NOTICES.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given: (i) when received, if personally delivered, or sent by certified or registered mail, return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by facsimile or email; or (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to your primary email address on your account.
NO WAIVER.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
HEADINGS; INTERPRETATION.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of the words “including”, “for example” or “such as” in these Terms of Service shall be read as being followed by “without limitation” where appropriate.