True Botanicals, Inc. Terms of Service

Effective Date: January 1, 2023

 

Please read this Terms of Service Agreement (“Agreement”) carefully. This Agreement is a legal contract between you (“User”) and True Botanicals, Inc. (“True Botanicals”, “we” or “us”).

 

IF YOU SUBSCRIBE TO ANY SUBSCRIPTION WE MAY OFFER THROUGH THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT TRUE BOTANICALS’ THEN-CURRENT FEE FOR SUCH SUBSCRIPTION UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 4.4 BELOW.

 

SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

 

 By accessing or using www.TrueBotanicals.com (“Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

 

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

 

Subject to Section 13.13 of this Agreement, True Botanicals reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

 

1. USE OF THE SERVICES AND TRUE BOTANICALS PROPERTIES. The Website, the Services, and the information and content available on the Website and in the Services (as these terms are defined herein) (each, a “True Botanicals Property” and collectively, the “True Botanicals Properties”) are protected by copyright laws throughout the world.  Subject to the Agreement, True Botanicals grants you a limited license to reproduce portions of True Botanicals Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by True Botanicals in a separate license, your right to use any and all True Botanicals Properties is subject to the Agreement.

 

1.1 Updates. You understand that True Botanicals Properties are evolving.  As a result, True Botanicals may require you to accept updates to True Botanicals Properties that you have installed on your computer or mobile device.  You acknowledge and agree that True Botanicals may update True Botanicals Properties with or without notifying you.  You may need to update third-party software from time to time in order to use True Botanicals Properties.

 

1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit True Botanicals Properties or any portion of True Botanicals Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other True Botanicals Properties (including images, text, page layout or form) of True Botanicals; (c) you shall not use any metatags or other “hidden text” using True Botanicals’ name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of True Botanicals Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access True Botanicals Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of True Botanicals Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in True Botanicals Properties. Any future release, update or other addition to True Botanicals Properties shall be subject to the Agreement.  True Botanicals, its suppliers and service providers reserve all rights not granted in the Agreement.  Any unauthorized use of any True Botanicals Property terminates the licenses granted by True Botanicals pursuant to the Agreement.

 

2. Registration

 

2.1. Registering Your Account. In order to access certain features of True Botanicals Properties, you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”).

 

2.2 Access Through a SNS. If you access the True Botanicals Properties through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts, by allowing True Botanicals to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to disclose your Third-Party Account login information to True Botanicals and/or grant True Botanicals access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating True Botanicals to pay any fees or making True Botanicals subject to any usage limitations imposed by such third-party service providers.  By granting True Botanicals access to any Third-Party Accounts, you understand that True Botanicals may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through True Botanicals Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through True Botanicals Properties via your Account.  Unless otherwise specified in the Agreement, all SNS Content shall be considered content that is owned by you (“Your Content”) for all purposes of the Agreement.  Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on True Botanicals Properties. Please note that if a Third-Party Account or associated service becomes unavailable or True Botanicals’ access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through True Botanicals Properties.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND TRUE BOTANICALS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  True Botanicals makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and True Botanicals is not responsible for any SNS Content.

 

2.3 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using True Botanicals Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of True Botanicals Properties by minors.  You may not share your Account or password with anyone, and you agree to (y) notify True Botanicals immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or True Botanicals has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, True Botanicals has the right to suspend or terminate your Account and refuse any and all current or future use of True Botanicals Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account per platform or SNS at any given time.  True Botanicals reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use True Botanicals Properties if you have been previously removed by True Botanicals, or if you have been previously banned from any of True Botanicals Properties

 

2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of True Botanicals.

 

3. Purchasing Products.

 

3.1 Product Descriptions. Certain products available on our Website may be available exclusively online through the Website. These products may have limited quantities. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this Website is void where prohibited.

 

3.2 Order Acceptance. Each part of any order that you submit to True Botanicals constitutes an offer to purchase. If you do not receive a message from True Botanicals confirming receipt of your order, please contact our Customer Service department at trueteam@truebotanicals.com before re-entering your order. True Botanicals’ confirmation of receipt of your order does not constitute True Botanicals’ acceptance of your order. True Botanicals is only deemed to have accepted your order once the product(s) you ordered have been shipped (the “Product”).

 

3.3 Order Issues. Although we strive to accept all valid orders, True Botanicals reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. 

 

3.4 Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, True Botanicals reserves the right to cancel your order and provide you a refund for the amount paid for the Product.

 

3.5 Return Policy. True Botanicals offers a thirty (30) day return policy on full sized products that you have not been previously purchased. Notwithstanding the foregoing, product returns must contain at least one half the amount of volume of original product shipped, and will otherwise only be eligible for a refund at the discretion of True Botanicals. True Botanicals reserves the right to not offer this refund to any user suspected of abusing this return policy. If you receive such notice from True Botanicals, regardless of whether such abuse is established, you acknowledge that by making subsequent purchases, you agree not to participate in the subscription refund program.

 

3.6 Restrictions on Resale. To protect the intellectual property rights of True Botanicals and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. True Botanicals reserves the right to decline any order that we deem to possess characteristics of reselling.

 

 4. Fees and Purchase Terms. 

4.1 You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account. You also agree to pay all applicable taxes. To make an order through the Services, you must provide valid payment information. By providing your payment information, you agree that True Botanicals is authorized to immediately invoice your Account for all fees and charges due and payable to True Botanicals hereunder and that no additional notice or consent is required. You agree to immediately notify True Botanicals of any change in your billing address, debit card, credit card, or other relevant payment account information.  True Botanicals uses Braintree Payments (“Braintree”) and/or Shopify, Inc. (“Shopify”) as a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services).  By using the Services, you hereby consent and authorize True Botanicals and Braintree and/or Shopify to share any information and payment instructions you provide to complete your transactions. You agree to immediately notify True Botanicals of any change in your payment information by sending an e-mail to trueteam@truebotanicals.com. True Botanicals reserves the right at any time to change its prices and billing methods. Please contact trueteam@truebotanicals.com regarding any billing disputes.

 

4.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any subscription we may offer through the Services (each, a “Service Subscription Fee”) at the time you create your Account and subscribe to the Subscription (each, a “Service Commencement Date”). Except as set forth in any separate refund policy posted on the Services, all fees are non-refundable. No contract will exist between you and Company for the Services until True Botanicals accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication. For additional details on True Botanicals subscriptions, please visit https://truebotanicals.com/pages/subscribe.  Your participation in any subscription is subject to this Agreement.

 

4.3 The payments required under Section 4 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If True Botanicals determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, True Botanicals shall collect such Sales Tax in addition to the payments required under Section 4 of this Agreement.  If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to True Botanicals, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify True Botanicals for any liability or expense True Botanicals may incur in connection with such Sales Taxes.  Upon True Botanicals’ request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

4.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at True Botanicals’ then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from True Botanicals that your subscription will be automatically renewed, you will have thirty days from the date of the True Botanicals notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.  If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact True Botanicals at trueteam@truebotanicals.com or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize True Botanicals to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if True Botanicals does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that True Botanicals may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

4.5 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official True Botanicals communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.

4.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact True Botanicals to have the charges reversed.

 

5. OWNERSHIP

 

5.1 True Botanicals Properties. You agree that True Botanicals and its suppliers own all rights, title and interest in True Botanicals Properties.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any True Botanicals Properties.

 

5.2 Trademarks. and all related graphics, logos, service marks and trade names used on or in connection with any True Botanicals Properties or in connection with the Services are the trademarks of True Botanicals and may not be used without permission in connection with your or any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in True Botanicals Properties are the property of their respective owners.

 

5.3 Other Content. You agree that you have no right, title, or interest in or to any Content that appears on or in True Botanicals Properties, except Your Content as expressly described herein.

 

5.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to True Botanicals through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that True Botanicals has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to True Botanicals a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of True Botanicals Properties and/or True Botanicals’ business.

 

5.5 Ratings, Reviews, and Testimonials. The Services allow you to post reviews, ratings and comments about True Botanicals Products (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are Your Content or the Content of other users and such Content is not endorsed by True Botanicals nor does such Content represent the views of True Botanicals. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. True Botanicals shall have the right, but not the obligation to monitor or review any Reviews at any time. True Botanicals reserves the right to refuse to post or remove any material submitted or posted in any Review. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with True Botanicals; (ii) you will not provide a rating or review for True Botanicals if you have an employment relationship or other affiliation with True Botanicals; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If True Botanicals determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Content without notice. The Services also allow you to submit photographs of yourself before you started using True Botanicals Products (“Before Photographs”), as well as photographs of yourself after using True Botanicals Products for a period of time (“After Photographs”) (together, the “Photographs”). Such Photographs are considered Your Content. By submitting your Reviews and Photographs, you grant True Botanicals and its agents the worldwide, perpetual (even after termination of this Agreement) irrevocable, royalty-free, non-exclusive and sub-licensable right to use, reproduce, copy, publish, display, distribute, perform, translate, adapt, modify, and otherwise exploit the Photographs, to display your name and likeness in connection therewith, and to incorporate the Photographs in other works in any and all markets and media, whether now known or hereafter discovered, without any additional approval or consideration, in connection with advertising and marketing True Botanicals and the True Botanicals Products and to otherwise provide or improve the Products and Services. Photographs submitted by you must not violate any applicable laws, rules, and regulations. True Botanicals shall have no obligation to copy, publish, display, or otherwise exploit the Reviews or Photographs.

 

6. THIRD-PARTY SERVICES. True Botanicals Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left True Botanicals Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites and Third-Party Ads are not under the control of True Botanicals.  True Botanicals is not responsible for any Third-Party Websites or Third-Party Ads. True Botanicals provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or any product or service provided in connection therewith.  You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

7. INDEMNIFICATION. You agree to indemnify and hold True Botanicals, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “True Botanicals Party” and collectively, the “True Botanicals Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any True Botanicals Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations.  True Botanicals reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with True Botanicals in asserting any available defenses.  This provision does not require you to indemnify any of the True Botanicals Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to True Botanicals Properties.

 

8. DISCLAIMER OF WARRANTIES

 

8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TRUE BOTANICALS PROPERTIES IS AT YOUR SOLE RISK, AND TRUE BOTANICALS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TRUE BOTANICALS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. This Section 8 does not affect in any way our return policy for goods purchased on the Website. If for any reason you are not satisfied with a purchase you make on the Website, please return it in accordance with the terms of our return policy, as described in Section 3.5.

1. TRUE BOTANICALS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) TRUE BOTANICALS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF TRUE BOTANICALS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF TRUE BOTANICALS PROPERTIES WILL BE ACCURATE OR RELIABLE.
   B. ANY CONTENT ACCESSED THROUGH TRUE BOTANICALS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS TRUE BOTANICALS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
   C. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TRUE BOTANICALS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
   D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TRUE BOTANICALS OR THROUGH TRUE BOTANICALS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
   Certain state laws do not allow limitations on implied warranties. If these laws apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you, and you might have additional rights.

 

8.2 No Liability for Content. THE SERVICE CONTAINS OPINIONS AND VIEWS OF TRUE BOTANICALS. TRUE BOTANICALS DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT POSTED BY TRUE BOTANICALS THAT ARE MADE AVAILABLE THROUGH THE SERVICES.

 

8.3 No Liability for Conduct of Third Parties or Products. YOU ACKNOWLEDGE AND AGREE THAT TRUE BOTANICALS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TRUE BOTANICALS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

 

8.4 Professional Advice Disclaimer.

1. THE CONTENT AND INFORMATION LOCATED ON THE TRUE BOTANICALS PROPERTIES ARE DESIGNED FOR EDUCATIONAL AND INFORMATIONAL, PURPOSES ONLY AND IS NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE TRUE BOTANICALS PROPERTIES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES.
2. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT AVAILABLE ON THE TRUE BOTANICALS PROPERTIES. THE USE OF INFORMATION AND CONTENT PROVIDED THROUGH THE TRUE BOTANICALS PROPERTIES IS SOLELY AT YOUR OWN RISK.
3. NOTHING STATED OR POSTED ON THE TRUE BOTANICALS PROPERTIES OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE INCLUDES, WITHOUT LIMITATION, PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
4. THE TRUE BOTANICALS PROPERTIES ARE CONTINUALLY UNDER DEVELOPMENT AND TRUE BOTANICALS MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE.

 

9. LIMITATION OF LIABILITY

 

9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TRUE BOTANICALS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

9.2 Cap on Liability. IF YOU HAVE PURCHASED ANY PRODUCTS FROM TRUE BOTANICALS THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE TRUE BOTANICALS INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO TRUE BOTANICALS BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES. IF YOU HAVE NOT PURCHASED ANY PRODUCTS FROM TRUE BOTANICALS THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE TRUE BOTANICALS INDEMNITEES ARE LIABLE TO YOU EXCEED ONE HUNDRED DOLLARS ($100).

 

9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRUE BOTANICALS AND YOU.

 

9.4 Exclusions. The laws of some states do not allow for the exclusion or limitation of certain damages. If these laws not apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you and you might have other rights. 

 

10. Remedies

 

10.1 Violations. If True Botanicals becomes aware of any possible violations by you of the Agreement, True Botanicals reserves the right to investigate such violations.  If, as a result of the investigation, True Botanicals believes that criminal activity has occurred, True Botanicals reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  True Botanicals is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in True Botanicals Properties, including Your Content, in True Botanicals’ possession in connection with your use of True Botanicals Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of True Botanicals, its Users or the public, and all enforcement or other government officials, as True Botanicals in its sole discretion believes to be necessary or appropriate.

 

10.2 Breach. In the event that True Botanicals determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for True Botanicals Properties, True Botanicals reserves the right to:

1. A) Warn you via e-mail (to any e-mail address you have provided to True Botanicals) that you have violated the Agreement;
2. B) Delete any of Your Content provided by you or your agent(s) to True Botanicals Properties;
3. C) Discontinue your registration(s) with any of True Botanicals Properties, including any Services or any True Botanicals community;
4. D) Discontinue your subscription to any Services;
5. E) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
6. F) Pursue any other action which True Botanicals deems to be appropriate.

 

11. TERM AND TERMINATION

 

11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use True Botanicals Properties, unless terminated earlier in accordance with the Agreement.

 

11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used True Botanicals Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any True Botanicals Properties, unless earlier terminated in accordance with the Agreement.

 

11.3 At its sole discretion, True Botanicals may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, True Botanicals reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to True Botanicals for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 5 through 9, 11, 13, and 14.

 

12. International Users. The Services are controlled and offered by True Botanicals from its facilities in the United States of America. True Botanicals makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

 

13. Dispute Resolution

Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires that you and True Botanicals arbitrate disputes against one another.

Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 13 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND TRUE BOTANICALS HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 19 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND true BOTANICALS BE RESOLVED BY BINDING AND FINAL ARBITRATION.  THIS SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ THIS SECTION 13 CAREFULLY.

13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and True Botanicals agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the True Botanicals Service, any communications you receive, any products sold or distributed through the True Botanicals Service, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and True Botanicals may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or True Botanicals may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.  

13.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and True Botanicals. If that occurs, True Botanicals is committed to working with you to reach a reasonable resolution. You and True Botanicals agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and True Botanicals therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.

13.3 The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to True Botanicals that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to trueteam@truebotanicals.com or regular mail to our offices located at True Botanicals, 522 Washington Street, San Francisco, California 94111.The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

13.4 Waiver of Jury Trial.  YOU AND TRUE BOTANICALS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and True Botanicals are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. 

13.5 Waiver of Class and Other Non-Individualized Relief. YOU AND TRUE BOTANICALS AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 13.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 13.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and True Botanicals agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco County in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or True Botanicals from participating in a class-wide settlement of claims.

13.6 Rules and Forum.  The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and True Botanicals agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.  

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. 

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  

Unless you and  otherwise agree, or the Batch Arbitration process discussed in subsection 13.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. 

You and True Botanicals agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. 

13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 13.9 (Batch Arbitration)  is triggered, JAMS will appoint the arbitrator for each batch.

13.7 Authority of Arbitrator.  The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or True Botanicals need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs. 

13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and True Botanicals agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against True Botanicals by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by True Botanicals.

You and True Botanicals agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: True Botanicals, 522 Washington Street, San Francisco, California 94111 or trueteam@truebotanicals.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your True Botanicals account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

13.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with True Botanicals as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

13.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if True Botanicals makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to True Botanicals at: True Botanicals, 522 Washington Street, San Francisco, California 94111, your continued use of the True Botanicals Service, including the acceptance of products and services offered on or through the True Botanicals Service, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the True Botanicals Service, any communications you receive, any products sold or distributed through the True Botanicals Service or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. True Botanicals will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.

13.13 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if True Botanicals makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing True Botanicals at the following address: True Botanicals, 522 Washington Street, San Francisco, California 94111.

 

14. GENERAL PROVISIONS.

14.1 Electronic Communications. The communications between you and True Botanicals may take place via electronic means, whether you visit True Botanicals Properties or send True Botanicals e-mails, or whether True Botanicals posts notices on True Botanicals Properties or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from True Botanicals in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that True Botanicals provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

 

14.2 Release. You hereby release True Botanicals Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of True Botanicals Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of True Botanicals Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a True Botanicals Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.

 

14.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without True Botanicals’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

 

14.4 Force Majeure. True Botanicals shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

 

14.5 Governing Law. This Agreement and any action related thereto shall be governed and interpreted by and under the laws of the State of California, without regard to conflicts of law provisions. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and True Botanicals agree that the exclusive jurisdiction of any dispute arising out of, or relating to, this Agreement or any dispute arising out of, or relating to, this Agreement or services provided in connection therewith shall be in the state and federal courts located in San Francisco, California.

 

14.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to True Botanicals Properties, please contact us at: True Botanicals, 1 Lovell Avenue, Mill Valley, California, 94941. We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

 

14.7 Where True Botanicals requires that you provide an e-mail address, you are responsible for providing True Botanicals with your most current e-mail address. In the event that the last e-mail address you provided to True Botanicals is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, True Botanicals’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to True Botanicals to the address above. Such notice shall be deemed given when received by True Botanicals by letter delivered by nationally recognized.

 

14.8 Waiver. No waiver of any provision herein shall be valid unless in writing and signed by an authorized representative of both you and True Botanicals. True Botanicals’ failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.

 

14.9 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.

 

14.10 Export Control. You may not use, export, import, or transfer True Botanicals Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained True Botanicals Properties, and any other applicable laws.  In particular, but without limitation, True Botanicals Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using True Botanicals Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use True Botanicals Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by True Botanicals are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer True Botanicals products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

 

14.11 Entire Agreement. This Agreement is the entire and exclusive agreement between the parties, and it supersedes all previous communications, representations or agreements, either oral or written, between them with respect to this subject matter. No representations or statements of any kind made by any affiliate of True Botanicals, which are not included in this Agreement, shall be binding on True Botanicals or its affiliates.

 

 

15. TRUE BOTANICALS SMS / MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

 

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

 

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


 

User Opt Out:  If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program.  You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out.  You 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, 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 HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, 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 that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events. 

 

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 Us. In addition to any fee of which you are notified, your mobile provider's message and data rates may apply to our confirmation text message and all subsequent text message correspondence according to your individual rate plan provided 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 or our affiliates be responsible for any text messaging or wireless changes incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text messages, you may not receive the text messages. Neither we nor wireless carriers will be liable for any delays in the receipt of, or failure to deliver, any text messages, as delivery is subject to effective transmission from your network operator. 

 

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email textsupport@wunderkind.co.  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.

 

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

 

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages. Data obtained from your connection with any text message services may include your cell phone number, your provider's name and the date, time and content of your text messages. We may use this information in accordance with our Privacy Policy to contact you and to provide the services you request from us. For more information, on how we use telephone numbers, please read our Privacy Policy. 

 

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 of 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 True Botanicals or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in accordance with Section 13 above.