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Terms of service


These Terms of Use and Purchase (“Terms of Use”) apply to your access to, and use of, the website of Aroma360, LLC (“Company”), located at www.aroma360.com (the “Site”), as well as your purchase of any of the product(s) and/or service(s) provided on the Site (the “Product(s)”). These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have with the Company, or its subsidiaries, affiliates and/or partners, for products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Use on such entity’s behalf.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, USING, PURCHASING A PRODUCT OR REGISTERING FOR THIS SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, AGREEMENTS, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, PLEASE DO NOT USE THE SITE OR PURCHASE ANY PRODUCTS ON THE SITE.

1. Changes to the Terms of Use

The Company may change these Terms of Use at any time. Upon any change in these Terms of Use, the Company will post the amended Terms of Use on the Site. Your continued use of the Site following such posting shall constitute your affirmative acknowledgement of the Terms of Use,  and any modification or amendment, and agreement to abide and be bound by the Terms of Use, as modified or amended.

2. Privacy Policy

Please refer to the Company’s Privacy Policy for information on how the Company collects, uses and discloses personally identifiable information from its users. The Privacy Policy can be found here.

3. Using the Site 

  1. Eligibility. You must be at least eighteen (18) years of age to register for the Site or use the Site. Membership of the Site is void where prohibited. By using the Site, you represent and warrant that you have the right, authority and capacity to enter into these Terms of Use and to abide by all of the terms and conditions of these Terms of Use.
  2. Limited License. You are granted a limited, non-transferable, non-sublicensable, revocable license to access and use the Site subject to the terms and conditions set forth in these Terms of Use.
  3. Registration. In order to register for the Site, you will need to provide certain personal information about yourself. You agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
  4. Communications from Company. By using, accessing, purchasing Products and/or registering for the Site, you agree and consent to receive certain communications in connection with the Site and the Products.  

4. Ownership in Site Content

All content on the Site, including, without limitaton, designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of the Company or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company’s prior written permission. Company also owns the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world associated with the Site Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws.

5. Prohibited User Conduct

You are prohibited from using the Site or the Site Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate the Company’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Site or any related website, other websites, or the Internet. The Company reserves the right to terminate your use of the Site or any related website for violating any of the prohibited uses set forth in these Terms of Use.

6. User Content

The Site may include areas in which users may post content and information (the “User Content”) and may include other interactive areas or services in which you or third parties may create, post, modify or store information, content, materials or other items on the Site. You are solely responsible for your use of the Site and your use is at your own risk. By using the Site, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:

  • User Content that is false, misleading, unlawful, libelous, defamatory, infringing, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, hateful, or otherwise objectionable;
  • User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
  • User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content as provided under these Terms of Use;
  • User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  • Private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
  • Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Site or any computer software or hardware or telecommunications equipment;
  • Any answers, responses, comments, opinions, analysis or recommendations that you are not properly qualified to provide; and/or
  • User Content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person or entity from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type.

Company takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity or profanity you may encounter. Enforcement of the User Content or the conduct rules set forth in these Terms of Use is solely at Company’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of Company’s right to enforce such rules in other instances.

Company is not liable for any statements, representations, responses, comments or other User Content provided by its users in any review, rating, forum, question, answer, guide or other area of the Site. Although Company has no obligation to screen, edit or monitor any of the User Content posted on the Site, Company reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice. Any use of the Site in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site.

You grant Company and its partners and affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully assignable, transferable and sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display User Content throughout the world in any media whether now know or hereinafter created. You also grant Company and its partners, affiliates, assignees and sublicensees the right to use the name that you submit in connection with such User Content.

You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Site (b) you have the authority to grant the rights granted herein; (c) the User Content is accurate and not misleading; and (d) use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.

7. Products

Certain Products may be available exclusively online through the Site. These Products may have limited quantities. All Products are subject to return or exchange only according to our Refund Policy.

The Company has made every effort to display as accurately as possible the colors and images of our Products that appear on the Site. However, the Company cannot guarantee that your computer monitor’s display of any color will be accurate. The Company reserves the right, but is not obligated, to limit the sales of our Products to any person, geographic region or jurisdiction. The Company may exercise this right on a case-by-case basis. The Company reserves the right to limit the quantities of any Products that it offers. All descriptions of Products or Product pricing are subject to change at anytime without notice, at the sole discretion of the Company. The Company reserves the right to discontinue any Product at any time. Any offer for any Product made on this Site is void where prohibited.

The Company does not warrant that the quality of any Products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors on the Site will be corrected.

8. Accuracy of Billing Information and Account Information

The Company reserves the right to refuse any order you place with us. The Company may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, the Company may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. The Company reserves the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made on the Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that the Company can complete your transactions and contact you as needed.

9. Links to Third Parties

This Site may contain links to other websites for the convenience of Company’s users. These other sites have not been reviewed by the Company and are maintained by third parties over which the Company exercises no control. The Company expressly disclaims any responsibility for the content, policies and practices of these other websites and for the availability, accuracy, reliability, completeness, currency, quality, performance or suitability of the information, products and services available or advertised on or through these other websites. These links do not imply, directly or indirectly, Company’s endorsement of or affiliation with any other website or website owner, or any information, products or services provided by any third party. When leaving this Site, you should be aware that the Company’s terms and policies may no longer govern, and, therefore, you should review the applicable terms and policies of each linked website.

10. Indemnification

You agree to defend, indemnify and hold the Company and its parent, subsidiaries, partners, service providers, affiliates, officers, employees, and agents (“Company Related Parties”) harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Site or those conducted on your behalf): (i) your User Content or your access to or use of the Site; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; and/or (v) any misrepresentation made by you. You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Company.

 

11. Gift Cards

 Gift Cards are available online in the following denominations: $50, $100, $250, $500. Gift Cards never expire. Gift Cards can be redeemed for online purchases by entering the Gift Card Number during checkout.  Use of a U.S. Gift Card constitutes acceptance of the following terms. Cards cannot be redeemed for cash, except as required by law. This card is issued by Aroma360 LLC and is redeemable for merchandise only on www.aroma360.com. This card may not be used for payment on any credit card account, to purchase another Gift Card, or toward previously purchased merchandise. Treat this card as cash. If this card is lost, stolen or destroyed, Aroma360 may replace it if you provide the card number. Replacement card will be the value of the card at the time Aroma360 receives your report of loss, theft or unauthorized use. This card carries no expiration date. If you need assistance, please call Customer Service at 1-561-206-0053. Your E-Gift Card number is required for all inquiries.

12. General Limitation of Liability

IN NO EVENT SHALL THE COMPANY AND/OR THE COMPANY RELATED PARTIES  BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO (I) YOUR USE OF, OR INABILITY TO USE, THE SITE, (II) YOUR USE OF, OR INABILITY TO USE, THE PRODUCTS, OR (III) THESE TERMS OF USE. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, THE COMPANY AND/OR THE COMPANY RELATED PARTIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE COMPANY AND/OR THE COMPANY RELATED PARTIES’ TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR YOUR USE OF THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO THE COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR (B) $100. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

13. Submissions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site (“Submissions”) provided by you to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

14. Electronic Contracting and Notices

Your affirmative act of using this Site, purchasing Products and/or registering for the Site constitutes your electronic signature to these Terms of Use, which includes our Privacy Policy, and your consent to enter into agreements with us electronically.

15. Digital Millennium Copyright Act Notice

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on this Site, please notify Company’s copyright agent, as set forth in the Digital Millennium Copyright Act (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:

(i) An electronic or physical signature of a person authorized to act on behalf of the copyright owner; (ii) Identification of the copyrighted work that you claim is being infringed; (iii) Identification of the material that is claimed to be infringing and where it is located on the Site; (iv) Information reasonably sufficient to permit the Company to contact you, such as your address, telephone number, and e-mail address; (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and (vi) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Aroma360, LLC
Attn: DMCA Agent
2058 NW Miami Court
Miami, FL 33127
support@aroma360.com 

 

16. Termination

The Company may terminate and/or suspend your account immediately, without notice, if there has been a violation of these Terms of Use or other policies and terms posted on the Site by you or by someone using your account. The Company may also cancel or suspend your account for any other reason, including inactivity for an extended period. The Company shall not be liable to you or any third party for any termination of your access to the Site. Sections 4, 7, 8 10, 11, 12, 13 and 19 shall survive termination or expiration of these Terms of Use.

17. Assignment

The Company may assign these Terms of Use at any time to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of the Company to another entity. The Company will use reasonable efforts to notify you regarding any change of ownership. You may not assign, transfer or sublicense these Terms of Use to anyone else and any attempt to do so in violation of this section shall be null and void.

18. Choice of Law; Venue; Class Action Waiver

These Terms of Use shall be construed and enforced in accordance with and governed by the laws of the State of Florida (without giving effect to any conflicts or choice of laws or provisions thereof that would cause the application of the domestic substantive laws of any other jurisdiction). The parties expressly and irrevocably consent to the exclusive venue, and each further agree to submit to the exclusive jurisdiction of, the Federal and State courts located in Palm Beach County, Florida relating to any disputes between them arising out of or relating to these Terms of Use or their relationship. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

19. Entire Agreement

These Terms of Use and any supplemental terms, policies, rules and guidelines posted on the Site, including the Privacy Policy, constitute the entire agreement between you and the Company and supersede all previous written or oral agreements. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

 

SMS Terms of Service

SMS MOBILE MESSAGE MANAGEMENT PROGRAM TERMS AND CONDITIONS

Last revised: May 12, 2021

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

User Agreement to Receive Text Messages

You agree to receive SMS mobile messages from Us and Recharge at the phone number you provided when you signed up for your subscription, and any additional or updated phone number you provide as a contact number in connection with your subscription. Regardless of how you joined the Program, you agree that these Program Terms apply to your participation in the Program. You agree to receive autodialed, prerecorded, or predetermined mobile messages at the phone number associated with your subscription, and you understand that your consent to receive these messages is not required to make any purchase. These messages will include information on how to manage your subscription and may include special offers and other promotional content. 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 the mobile messages you receive from Us or Recharge are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out

If you do not wish to continue participating in the Program or no longer agree to these Program Terms, you agree to reply STOP to any mobile message from Recharge in order to opt out of the Program. You also may email Recharge with your phone number and the subscription for which you wish to opt out of the Program at sms@rechargeapps.com. You may continue to receive SMS messages while we process your request, and you may receive a mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out of the Program. 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.

Duty to Notify and Indemnify

If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, Recharge, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US AND RECHARGE HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO COMPLY WITH YOUR DUTY TO NOTIFY US IN ACCORDANCE WITH THIS SECTION, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description

Without limiting the scope of the Program, users can expect to receive messages concerning the management of the users digital subscription, events, available products and services, and special promotions.

Cost and Frequency

Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with the Program.

Support Instructions

For support regarding the Program, text “HELP” to the number you received messages from our email at support@rechargeapps.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.

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 and Recharge 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 and Recharge’s control.

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.

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.

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.

Dispute Resolution

In the event that there is a dispute, claim, or controversy between you and Us, or between you and Recharge 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 the Program, 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 through binding arbitration or, if applicable, in small claims court.

Any arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules or, if applicable, the Consumer Arbitration Rules, of then in effect. Except as otherwise provided herein, this arbitration agreement is governed by the Federal Arbitration Act (“FAA”) and the arbitrator shall apply the substantive laws of California, 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 as an arbitrator and and have  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, under the applicable rules, who must satisfy the same experience requirements. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the  “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. If allowed for by the applicable rules, 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. Unless expressly allowed for by applicable law, 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 to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration 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.

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.

 

 

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