Terms of Use

 

Last Updated: September 26, 2017

 

Please read this agreement carefully to ensure you understand each provision.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

 

The Site

Welcome to Orgain Inc.’s (“Orgain”) website. By using our website (or mobile website) (collectively, the “Site”) or placing an order through the Site, you accept and agree to be bound by these Terms of Use (“Terms”) and our Privacy Policy. Use of the Site is only available to users who are 18 years of age or older and reside in the United States or its possessions AND territories. Orgain makes NO claims that the Site OR ANY of its content is accessible from outside the United States. Should you access our Site outside of the United States, you do so on your own initiative and are responsible for compliance with all local laws.

The terms “we,” “us” and “our” refer to Orgain and any of its affiliated companies as appropriate to the context. “You” refers to any person accessing and/or using the Site.

IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CONSTITUTE A LEGALLY BINDING CONTRACT WHICH GOVERN YOUR USE OF THIS SITE. BY ACCESSING, VIEWING, BROWSING, VISITING OR USING THIS SITE YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, PLEASE DO NOT USE THIS SITE. ORGAIN RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY OR REVISE THESE TERMS AT ANY TIME BY POSTING UPDATES TO THIS PAGE. YOU WILL BE DEEMED TO HAVE ACCEPTED ANY SUCH MODIFICATION OR REVISION BY CONTINUING TO USE THE SITE AND SHOULD THEREFORE VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS. ALL MODIFIED OR REVISED TERMS SHALL AUTOMATICALLY BE EFFECTIVE THIRTY (30) DAYS AFTER THEY ARE INITIALLY POSTED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THIS SITE.

You understand that the Site undergoes frequent changes.  Orgain may require that you accept or use updates to the Site in order to continue using the Site.  You acknowledge and agree that Orgain may update the Site without notifying you.

 

Authorized Use

Subject to these Terms, we authorize you to view and download the information and other materials at or through this Site only for your personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained in the original materials on any copies of the materials you make. You may not, without the prior written permission of Orgain, “mirror” any material contained on this Site on any other server. Additional terms and conditions may apply to your use of any products and services offered through this Site. Please review all such terms and conditions before you use any of our products and services.

 

Ownership

You acknowledge and agree that this Site uses and contains proprietary and confidential technology and information owned by or licensed to us, and protected by applicable intellectual property and other laws and international treaties. The content displayed on or through this Site, including without limitation all information, data, text, software, photographs, graphics, video, or other materials (the “Content”) is copyrighted by us or our licensors under United States and international copyright laws. The Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission. You must abide by all copyright notices, information, or restrictions contained in or attached to any Content.

“Orgain,” the “Orgain logo” and certain other words and logos displayed on this Site and which may or may not be designated on this Site by a “™” “®” “SM” or other similar designation, constitute trademarks, trade names, or service marks (collectively, “Marks”) of Orgain or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or our respective licensors.

Nothing contained on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use this Site or any information displayed on this Site, through the use of framing, deep linking or otherwise, except: (a) as expressly permitted by these Terms; or (b) with prior written permission from us or the third-party that may own the trademark or copyright of information displayed on this Site.

 

Disclaimers

YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE, THE CONTENT AND ANY SERVICES OFFERED THROUGH THIS SITE SHALL BE AT YOUR SOLE DISCRETION AND RISK. THIS SITE, THE CONTENT AND THE SERVICES OFFERED THROUGH THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ORGAIN DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.

ORGAIN MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THIS SITE, THE CONTENT, THE SERVICES OFFERED THROUGH THIS SITE OR ABOUT THE RESULTS TO BE OBTAINED FROM USING THIS SITE OR THE PRODUCTS (AS DEFINED BELOW). ORGAIN DOES NOT WARRANT THAT THIS SITE WILL OPERATE ERROR-FREE OR THAT THIS SITE OR ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE. ORGAIN DOES NOT WARRANT THAT ALL USER INFORMATION OR ALL INFORMATION POSTED BY A USER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. ORGAIN DOES NOT WARRANT THAT THE SITE, USER INFORMATION OR ANY INFORMATION POSTED BY A USER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY ORGAIN OR THROUGH THE SITE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED ONLY IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.

 

Special Terms and Conditions Governing Special Promotions, Features or Functionality

The Site may include special promotions, features or functionality. For example, you may be able to use this Site to enter a sweepstakes or contest; to apply for a job; to purchase products; or to design and email a friend. These special promotions, features and functionality may be offered subject to special terms and conditions, such as age restrictions, entry deadlines, return policies, or restrictions on use. If special terms and conditions apply, we will post appropriate notices on the Site on the entry form, the order form or the registration page. Such notices supplement or amend these Terms and are hereby made part of these Terms.

 

Registration

The Site may require registration or may otherwise ask you to provide information to participate in certain features or to access certain Content. As part of the registration and account creation process, you will select a password and provide us with certain registration information. You are solely responsible for maintaining the confidentiality of your password(s) and you will be responsible for all usage or activity on your account, including but not limited to the unauthorized use of your account by any person using your password(s) and any purchases made by parties using your account, whether or not authorized by you.

 

Social Media Platforms

Orgain may choose to enable certain social media functions on the Site in order to help you complete a purchase, share product or other information with yourself or friends, or to post a comment, review or recommendation on either our Site or third-party platforms. If you choose to use social media functions on our Site, you acknowledge and agree to abide by the relevant terms and conditions of each respective social media service that we may utilize. The terms and conditions for the social media services may be found on each respective social media website or mobile app. Such social media websites and mobile apps may also be able to use information about actions you take on our Site. However, note that where you choose to publish information on the interactive parts of our Site outside of these privacy settings, or in any way through a social media website or mobile app, that information will not be protected by us. Such information is considered in the public domain, which may be accessed by any person using the Web in any part of the world and can be found using independent search engines. If you choose to post information to the interactive parts of our Site in this manner, you do so at your own risk. In addition, you acknowledge and agree that we are not responsible for the availability of these websites and mobile apps, or any other social media services that we may add to the connect function, and do not endorse and are not responsible or liable for any Content, advertising, goods, services or other materials on, available through, or provided by such websites, mobile apps or services.

 

Links from the Site

The Site may provide links to third-party websites or services and contain third-party advertisements. We have no control over such websites and services and you acknowledge and agree that we are not responsible for the availability of such websites or services, and do not endorse and are not responsible or liable for any Content, advertising, products, or other materials on or available from such websites or services. You further acknowledge and agree that we 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 inability to use (i) any sites or resources that this Site provides links to or that provide links to this Site, or (ii) any Content, goods, or services available on or through any such sites or resources. We take no responsibility for third-party advertisements which are posted on this Site, nor do we take any responsibility for the goods or services provided by advertisers on this Site. Your dealings with, or participation in promotions of, any third-party advertisers or other third-party providers of goods or services found on or through this Site and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third-party advertiser or provider.

 

Use of the Site and Posting Policy

The following requirements apply to your use of the Site: (a) you will not use any feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, or racially, sexually, religiously, or otherwise objectionable or offensive, all as determined by Orgain in its sole and absolute discretion; (b) you will not upload any Content or link to any Content that contains or promotes any of the foregoing; (c) you will not upload, post, reproduce, or distribute any information, software, pictures, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (d) you will not solicit, collect or store personal data about other users; (e) you will not solicit money from or offer to provide money to other users in exchange for acts or services of any nature; (f) you will not use the Site for any commercial purpose not expressly approved by Orgain in writing; (g) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (h) you will not upload, post, email, or otherwise transmit any material that contains viruses, adware, spyware or any other computer code, cookies, files, or programs which might interrupt, limit, overburden, or interfere with the functionality of any computer software or hardware or telecommunications equipment, including the Site; (i) you will not use or develop any third-party applications that interact with the Site or other users’ Content without our prior written consent; and (j) you will not gain, or attempt to gain, unauthorized access to the Site, the servers or networks connected to the Site by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Site).

From time to time on certain areas of our Site you may be able to submit photos, written posts and certain other materials (“User Content”) pursuant to the policies set forth in these Terms (the “Posting Policy”). By using these features, you agree that you will not post any Content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Orgain in its sole and absolute discretion; that you will not post any Content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential; that you will not impersonate any person or organization, including without limitation, the personnel of Orgain, or misrepresent an affiliation with another person or organization; you will not post any Content that contains viruses, corrupted files, adware, spyware, worms, or any other similar software or programs that may adversely affect the operation of the Site, or any feature of the Site. You further understand and agree that, except as set forth in these Terms, you have no ownership rights in any account you may have with us or other access to the Site or features therein. Orgain may cancel your account and delete all User Content associated with your account at any time, and without notice, if Orgain deems that you have violated these Terms, the law, or for any other reason, in its sole and absolute discretion. Orgain assumes no liability for any information removed from our Site, and reserves the right to permanently restrict access to the Site or a user account. For greater certainty, and without limiting the effect of the foregoing, Orgain reserves the right, in its sole and absolute discretion, to modify, edit, refuse to post, or remove any User Content, or to request a user to modify or edit his or her User Content, if a complaint or notice of allegedly infringing materials is received with respect to the User Content, if User Content violates these Terms, or for any other reason.

By displaying, publishing, or otherwise posting any User Content on or through the Site, you hereby irrevocably grant to Orgain a non-exclusive, fully sub-licensable, non-revocable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, broadcast, publish, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek your or any third party’s permission. Further, you waive all moral rights in and to all User Content that you post on, upload or otherwise submit to or through the Site in favor of Orgain. This license and waiver of rights includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, in video or music software computer programs. You continue to retain all ownership rights you hold in your User Content, and you retain any right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own all of the User Content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.

In these Terms, “Feedback” refers to any material you post on or through this Site that is specifically about how we can improve this Site and/or the products and services we make available through this Site. Although we do not claim ownership of User Content that you post using this Site, the Feedback you provide to us through this Site will be and remain our exclusive property. Your submission of Feedback will, and hereby does, constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

In exercising the rights you grant to us, we may or may not, in our sole discretion, include your name, likeness, photo or biographical information in conjunction with your User Content. By submitting, disclosing or offering User Content, you hereby grant us the right to use your name, likeness, photo or biographical information in connection with our exploitation of the rights granted above.

You agree to indemnify and hold Orgain, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, including, without limitation, the above Posting Policy, or any violations thereof by your dependents or which arise from the use of any Content including User Content that is submitted, posted, or otherwise provided to Orgain or this Site through your account.

By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Site.  You acknowledge and agree that you have no expectation of privacy vis-a-vis us or any of our service providers who provide services to us or you as part of the Site concerning the transmission of any information, including without limitation chat, text or voice communications.

You acknowledge and agree that we have the right to disclose User Content and the identity of the user who posted them in response to a subpoena or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Orgain or others, or to enforce these Terms.

 

Purchases from Orgain
 
General

Orgain offers products for purchase on the Site (“Products”). You may purchase Products by filling in the order form on the Site or by calling the Orgain customer care center. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities or Products purchased per person, per household or per order. These restrictions may include orders placed by or under the same account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you using the email address, billing address and/or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

 

Age

You must be 18 years of age or older to purchase any Products from Orgain.

 

Pricing

Prices for Products are subject to change without notice. All prices for Products are in US dollars, and are exclusive of any applicable local, state, or federal taxes. Shipping and handling fees, if any, will be disclosed and reviewable by you prior to submitting your order.

 

Payment

All payments made through the Site or by phone with our customer care center are processed using a third-party processor. You acknowledge that Orgain is not liable for any breaches of credit card or debit card security or privacy by such third-party processor. You agree to pay all charges from Orgain incurred by users of your credit card, debit card, or other method of payment.  

 

Shipping

Orgain will ship all Products purchased through the Site to the address specified in the shipping address section of the order form. Shipments will be made via standard ground service unless otherwise specified at the time of purchase. The time period from the time of order to the time of delivery will vary depending on location. Products will only be shipped to addresses located within the United States. Additional charges may be incurred, and free shipping and other promotions may not be available, for shipments to Alaska and Hawaii.  APO and FPO shipments may be available on a case-by-case basis.

 

Refunds and Replacements

We stand behind our Product. If you received a Product with a ‘best buy’ date that has passed or that was damaged in transit, or if you are otherwise dissatisfied with the Product for any reason, we will refund your purchase or offer you a replacement Product, at no additional cost to you; provided, however, that such refund or replacement will be limited to a maximum of one case of Product and certain shipping costs may apply. To request a refund or replacement Product, send an email to support@drinkorgain.com with your name, order confirmation number, and reason for the request, within 30 days of when you receive your Product. We may require proof of purchase if we can’t verify your order. If necessary, we will adjust this refund policy as required by the laws of the jurisdiction in which you live. Food safety laws prohibit us from accepting the return of food products.

This refund policy is subject to change without notice.

 

Disclaimers

You agree to use the Products only as instructed by Orgain. You understand that Products may contain materials that could be dangerous if handled improperly, and you acknowledge that Orgain is not liable for any personal injury or property damage arising from any use of any Products offered through the Site that is not in accordance with Product labels and instructions provided by Orgain through the Site; provided, however, that Orgain will have no liability for comments and suggestions for use posted on the Site by you and other users of the Site. You further acknowledge that certain Products may not be suitable for use by children, and you expressly assume sole liability for providing any individual under the age of 18 with access to any Products. You hereby agree not use Products for any illegal purpose and you assume all liability for any action you take for any action that is contrary to any law, rule, or regulation of any jurisdiction.

 

Use of Credit Card

If you wish to purchase any product or service made available through the Site, you may be asked to supply certain information relevant to your transaction, including without limitation your credit card number, CCV code, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf, or through your account on the Site. Verification of your information may be required prior to the acknowledgment or completion of any transaction.

 

Limitation of Liability

IN NO EVENT SHALL ORGAIN OR ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE, THE CONTENT OR SERVICES OFFERED THROUGH THIS SITE INCLUDING, BUT NOT LIMITED TO, RELIANCE BY A USER ON ANY INFORMATION OBTAINED AT THIS SITE, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION AT LAW, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, OR OTHER TORTUOUS ACTION, OR AN ACTION IN EQUITY, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT AVAILABLE THROUGH THIS SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

Indemnity

You agree to defend, indemnify, and hold harmless Orgain, its affiliates, shareholders, directors, officers, employees, agents and licensors, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your use of this Site or your breach of any representations, warranties, covenants or obligations contained in these Terms.

 

No Personal Advice or Endorsements

The Site and its Content (including any User Content) are for informational purposes only, and is not intended to replace or substitute for any professional financial, medical, legal or other advice. Information is many times general in nature and may be helpful to some persons but not others, depending on personal needs. You should always consult with your personal physician prior to changing or undertaking a new diet or exercise program. Never disregard professional medical advice or delay in seeking it because of something you have read on this Site. In addition to the disclaimers and limitations of liability set forth above, we and our affiliates make no representations or warranties and expressly disclaim any and all liability in connection with any health claims or information offered or provided by users of the Site. Any such health claims or information offered or provided by users are not tested, substantiated or endorsed by us and individual results may vary and may not be typical for individual consumers.

 

Copyright Policy

Orgain respects the rights of copyright owners to control the uses of their intellectual property, and requires our users to do the same. You are responsible for complying with all copyright laws while using this Site. You agree that you will not use this Site to infringe the copyrights or other intellectual property rights of others in any way, including but not limited to, copying or distributing copyrighted works.

It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”).  If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our Copyright Agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the DMCA, the written notice (the “DMCA Notice”) must include substantially the following:  (a) your physical or electronic signature; (b) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works; (c) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (d) adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address); (e) a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law; (f) a statement that the information in the DMCA Notice is accurate; and (g) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated Copyright Agent to receive DMCA Notices is:

Jessica Nguyen

Email: dmca@Orgain.com

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.

WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

Other than claims filed by you or by Orgain in small claims court or by Orgain related to protection of Orgain’s or any of Orgain’s licensor’s intellectual property, you and Orgain hereby agree to seek resolution of the dispute only through arbitration of that dispute in accordance with these Terms and to not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND Orgain SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.

You acknowledge that the rights granted and obligations made under these Terms to Orgain are of a unique and irreplaceable nature, the loss of which shall irreparably harm Orgain and which cannot be replaced by monetary damages alone, so that Orgain shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.  You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Site, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Site or any content or other material used or displayed through the Site and agree to limit your claims to claims for monetary damages as set forth above.

 

General

These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. Any legal proceeding arising out of the use of this Site, the Content or any other materials on this Site, or these Terms must be brought in Orange County, California and must be brought within one year after the claim or cause of action arises or it is barred. By using this Site you agree to submit to the personal and exclusive jurisdiction of the courts or neutral arbitrator located within the county of Orange, California, U.S.A. You may not assign or transfer your rights or obligations under these Terms, in whole or in part, without our prior written consent. Any attempted assignment in violation of this provision will be null and void and of no force or effect. We may assign our rights and obligations under these Terms freely at any time without notice. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect. These Terms and the Privacy Policy constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and supersede any and all prior or contemporaneous agreements or understandings, written and oral.

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