Terms of Use Agreement

Effective Date: August, 1, 2024

Last Updated: August, 1, 2024

 

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE OR PRODUCTS OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.

This Terms of Use Agreement (“Agreement”) is a legally binding agreement between you and Spritz, Inc., D/B/A Aerflo, and its affiliates and subsidiaries (collectively, “Company,” “we,” “us,” or “our”) and governs your access to and use of (1) our websites, mobile and other online services or applications that link to this Agreement, including Aerflo.co; (2) the features, content, programs, and services we make available through such websites (collectively with (1), the “Website”); and (3) any of the products sold through the Website, retail stores, and authorized sellers, including our Capsules (defined below) (individually a “Product,” and collectively with Capsules, the “Products”). By continuing to access and use the Website or use any of our Products, you agree that such use is legally sufficient consideration under this Agreement. The Capsule User License Agreement which may be included in Product packaging is part of this Agreement. 

THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.

YOUR CONTINUED USE OF THE WEBSITE AND ANY PRODUCTS IS SUBJECT TO YOUR CONTINUED COMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE WEBSITE OR ANY PRODUCTS.

CONTINUED ACCESS AND USE OF THE WEBSITE OR USE OF A PRODUCT AFTER CHANGES HAVE BEEN MADE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT THEN IN EFFECT. YOU AGREE THAT YOU WILL REVIEW THIS AGREEMENT PERIODICALLY AND THAT YOU SHALL BE BOUND BY THIS AGREEMENT AND ANY MODIFICATIONS TO IT.

We are committed to making the Website accessible for all users and will continue to take steps necessary to ensure compliance with applicable laws. Please read our Accessibility Policy for more information. If you have difficulty accessing any content, feature, or functionality of the Website, please Contact Us.

HIGHLIGHTS OF THE AGREEMENT

This Highlights section is intended to provide you with a basic overview of the contents of this Agreement. However, please read the entire Agreement for a complete understanding of the terms you are agreeing to. The meaning of capitalized words can be found in the full Agreement. If there is a conflict between the terms of this Highlights section and the terms of the full Agreement, the terms of the full Agreement control. 

Shopping on Our Website

• By using the Website or our Products, you consent to the terms of this Agreement. We may update this Agreement from time to time, and we will use reasonable efforts to provide you with notice of these updates if they are material.
• THIS AGREEMENT CONTAINS LIMITATIONS ON OUR LIABILITY TO YOU, IMPORTANT DISCLAIMERS OF WARRANTIES, AND INDEMNIFICATION OBLIGATIONS BY YOU.
• THIS AGREEMENT GOVERNS HOW DISPUTES WITH US WILL BE HANDLED, INCLUDING USING BINDING ARBITRATION WITH A CLASS ACTION WAIVER.
• Your use of the Website and our Products may be governed by other terms and conditions applicable to certain features or promotions. You should also read our Privacy Policy.
• This Agreement contains information about how you can Contact Us regarding complaints, questions or copyright infringement claims.

COMPLETE AGREEMENT

ECOMMERCE

Our Websites may allow you to purchase Products directly on them (“Aerflo eCommerce Sites”). 

Except as otherwise expressly stated herein or on a Product description page, refunds, returns, and exchanges will not be issued for Products that have not been purchased directly through an Aerflo eCommerce Site. Capsules purchased from somewhere other than an Aerflo eCommerce Site may be returned or exchanged with us in accordance with ROD as described below. We reserve the right to deny a refund, return, or exchange, and/or issue a shopping credit to your Account (defined below) in place of a refund if we determine that our policy is being abused. We may use any means available to us, including coordination with other companies, to determine if you are abusing our policy. This decision is made in our sole discretion and determination.

Orders

We may make improvements and/or changes in Products or services described on the eCommerce Sites, add new features, or terminate an eCommerce Site at any time without notice. We also: (i) reserve the right to change the goods and services advertised or offered for sale through an eCommerce Site, the prices or specifications of such goods and services, and any promotional offers at any time without any notice or liability to you or any other person; (ii) cannot guarantee that goods or services advertised or offered for sale on an eCommerce Site will be available when ordered or thereafter; (iii) reserve the right to limit quantities sold or made available for sale; (iv) do not warrant that information on an eCommerce Site (including without limitation product descriptions, colors or photographs) is accurate, complete, reliable, current or error-free; and (v) reserve the right to modify, cancel, terminate or not process orders (including accepted orders) where the price or other material information on an eCommerce Site is inaccurate, where we have insufficient quantities to fulfill an order or for any other reason in our sole discretion. If we do not process an order for such reason, we will either not charge you or will apply credit to the payment type used in the order. Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to you. Unless otherwise indicated (or if the eCommerce Site has a non-US domain), Products sold on the eCommerce Sites are intended for end use in the United States and are not labeled or intended for international distribution. 

Taxes

If we are legally required to collect sales tax on merchandise you order, the tax amount will be added automatically to your purchase price. On rare occasions, an error in our tax database may cause the sales tax charge to be incorrect. If this happens, at any time up to two years from your date of purchase, you may Contact Us for a refund of tax overcharges. This right to a refund is your exclusive remedy for sales tax errors.

Payment Processing

We may use a third-party payment processor to process your payment information, including your payment card data. Be aware that you may be subject to the third-party processor’s terms and your information may be subject to their privacy practices. 

Returns and Exchanges

If you are not satisfied with any Product that you purchased through an Aerflo eCommerce Site, you may return it or exchange it subject to the following conditions:

To request a return or exchange, you must contact our customer service department by following the instructions on the Aerflo eCommerce Site. Some Aerflo eCommerce Sites may also let you request a return or exchange through your Account or through other functionality.

In your return or exchange request, you must indicate the specific Product with which you are not satisfied, and include your order number, name, and contact information, as well as the reason for your return or exchange request and the new Product with which you would like to replace the returned Product if you are requesting an exchange.

If we accept your return or exchange request, you must initiate the return of the applicable Product within 60 days from the date of original shipment. Products returned after the 60-day return period may have their return or exchange denied.  If you do not have an Account, we may issue you a shopping credit through other means. 

To initiate the return of a Product, you must use a return label that we provide you and follow our repacking and shipping instructions carefully. Once you repackage the Product that you are returning, securely affix the return label to you to your package and drop off your package the location described in our repacking and shipping. Your return or exchange will begin to be processed as soon as we have confirmed receipt of your return. We may not reimburse you for any shipping and handling fees that you incurred in returning any such Product. 

Promptly within receipt of a returned Product, a credit will be issued back to the original method of payment if you selected a refund, or the new Products that you requested will be shipped to you if you requested an exchange.  

Please note that a new Product for which you want to exchange the returned Product may not be in stock. In such case, you will receive a shopping credit as described above.

If you are making an exchange, new Products that are in stock may not equate to an even exchange and there may be a price difference between the new Product and the returned Product. Any difference in pricing for an exchange will be placed back on the original method of payment. If we are unable to do so, your exchange may not be completed. We may contact you for new payment information or elect to treat it as a return instead. 

Refunds

Some Aerflo eCommerce Sites sell Products for which we allow a refund so long as you provide the item back to use. However, all or a portion of the purchase price sometimes may be returned to you without you providing the item back to us. This may be indicated on the applicable Aerflo eCommerce Site or may be communicated by our customer service. We reserve the right to only issue a refund, or require a return or exchange, in our sole discretion regardless of what an Aerflo eCommerce Site may indicate. Refunds will not be issued for Products that have not been purchased directly through the eCommerce Site.

Timing: For refund eligible Products, you have 30 days from the date of delivery to contact us for a full refund of the purchase price (less shipping and handling fees).  Following such 30-day period, no Product is eligible for a refund. However, even after 30 days, we encourage you to contact us if you are unsatisfied with a Product and so our customer service can improve your experience, which may include providing an exception to this refund policy. 

Conditions: Your refund is subject to the following conditions:

To request a refund, you must contact our customer service department by following the instructions on the Aerflo eCommerce Site. Some Aerflo eCommerce Sites may also let you request a refund through your Account or through other functionality.

In your refund request, you must indicate the specific Product with which you are not satisfied and include your order number, name, and contact information, as well as the reason for your refund request.  

If we accept your refund request, you will receive a credit to your original form of payment. If we are unable to credit that form of payment, your refund may not be completed. We may contact you for new payment information or provide your refund in another way, such as through your Account.

Shipping

We process orders daily Monday through Friday from our fulfillment centers. Most orders are shipped within two business days. You can expect delivery within 8 business days of your order shipping out (as required by the US Department of Transportation regulations, we only ship via surface mail). Please allow 1 business day for order processing. 

Shipping fees vary by Aerflo eCommerce Site and can be found as calculated during the order completion process before checking out.

Unless otherwise indicated, we are only able to ship to one shipping address per order. If you'd like to ship to multiple addresses, please place separate orders for each unique address. Most Products may be shipped to a P.O. Box or Military APO/FPO addresses, but some restrictions apply. At this time, we only ship to the 48 contiguous states and Washington DC. Please make sure your address is correct. Once in transit, we cannot redirect shipments to a new or different address. If you order is returned for an invalid or incorrect address your order will be returned to stock and the order refunded less any shipping charges.

If you have questions regarding shipping, please Contact Us.

Auto-shipping and Capsule Exchange

Our product line uses a novel approach to the ongoing license and fulfillment of refills called Aerflo Capsule Exchange. Capsule Exchange requires you to sign up for automatic reoccurring delivery of Refill Packs upon return of your empty Refill Packs. (“Autoship”). If you opt-in to Capsule Exchange, we automatically bill for and send you your next Refill Pack upon return of the prior Refill Pack (complete with its 12 empty capsules). You have control over your Capsule Exchange orders, and we send an email reminder one to two business days before each order ships. You can change your delivery address or payment method by visiting your Account on the applicable eCommerce Site. Changes to orders can be made any time within 24 hours of the next scheduled shipment date, and you can cancel Capsule Exchange at any time. By electing to participate in Capsule Exchange, you may receive certain discounts as detailed on the applicable site. These discounts are not guaranteed and may be discontinued at any time, including while you are still signed up for Capsule Exchange.

Returning Refill Packs with damaged or missing capsules will result in a financial penalty (“Missing Capsule Penalty”). The Missing Capsule Penalty will be equal to the number of missing or damaged capsules multiplied by the MSRP of an individual capsule. The MSRP of an individual capsule will be calculated using the highest MSRP of an Accessory Refill Pack, divided by the number of capsules in a Refill Pack. We reserve the right to apply or waive the Missing Capsule Penalty at our sole discretion. For more information on the Missing Capsule Penalty, please see here or contact our customer service department using the information below.

The Missing Capsule Penalty will be billed to your most recent form of payment used to purchase goods from us, and a receipt will be emailed to the email address associated with your account.

Promo Codes and Discounts

Certain Aerflo eCommerce Sites create or advertise promo codes, discounts, coupon codes, and offers that provide a benefit to you when entered upon checkout. These cannot be applied to prior or completed transactions, they must be provided at the time of purchase. Generally, promo codes and discounts cannot be combined with other offers or used with Refill Exhcange orders. Only consumers can use promo codes, they cannot be used by resellers, wholesalers, practitioners, or the like. You may have no right to discounts, coupons, or offers that are expired or discontinued even if they remain visible on the Website.

CO2 CAPSULE USER LICENSE AND TERMS

PLEASE READ THIS SECTION AND THE ENTIRE AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE OR CAPSULES, OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.

This Section governs your use of our patent pending Aerflo Carbon Capsules (the “Capsules”). By continuing to use our Capsules, you agree that such use is legally sufficient consideration under this Agreement. 

OUR CAPSULES CONTAIN PRESSURIZED CO2. DO NOT HEAT. DO NOT USE IF DAMAGED. KEEP OUT OF REACH OF CHILDREN. 

OUR CAPSULES, WHETHER LICENSED OR SUBSEQUENTLY REFILLED, ARE PROVIDED UNDER THE LICENSE GRANTED HEREIN; NOT FOR SALE. PLEASE RETURN FOR REFILL.

User Instructions

When our Capsules are empty and ready to be returned for refill:

1. Place empty Capsules back in their packaging after use. Close and seal packaging.
2. Use the pre-printed and pre-affixed return label and drop them off in the mail.
3. Your next Refill Pack with filled Capsules will be on its way to the default address in your account, and your default payment method will be billed.

All Capsules, whether ordered initially or subsequently refilled, are subject to the license granted in this Agreement. It is important to note that any Capsules returned to us must be in their original condition and free from any damage or tampering. Capsules that have been damaged or tampered with will not be accepted. To ensure your safety and security, we are solely responsible for refilling and maintaining our Capsules. It is necessary to return your empty Capsules to us for refilling and maintenance, as attempting to refill them on your own or allowing third parties to service them can be highly hazardous and may lead to physical harm. Unauthorized refilling is also a violation of the law and may infringe upon our rights.

Your Authorized Use of our Capsules

Our Capsules are provided to you pursuant to this Agreement. While using our Capsules, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You may not use our Capsules for any fraudulent or unlawful purpose, and you may not take any action to interfere with a user’s safety and health. For example, you may not do any of the following:

• Refill our Capsules via a third party;
• Heat our Capsules;
• Use our Capsules if damaged;
• Reverse engineer, disassemble, or otherwise attempt to derive the method of operation of our Capsules;
• Utilize our Capsules with any devices not produced by us
• Build a competitive product or service using our Capsules, build a product or service using similar ideas, features, functions, or graphics as our Capsules or determine whether our Capsules are within the scope of any patent; and
• Assist or permit any persons in violating this Agreement or other applicable laws or rules governing the use of our Capsules.

Ownership of our Capsules

Our Capsules are protected intellectual property of, or used with permission or under license by us. Our Capsules are protected by trademark, patent or other proprietary rights and laws. All intellectual property rights associated with our Capsules, and related goodwill, are proprietary to us or our licensors. You agree that our Capsules are our sole and exclusive property. You do not acquire any right, title, or interest in any Capsules by ordering or using our Capsules. Any rights not expressly granted herein are reserved. 

Subject to your compliance with this Agreement, we grant you a limited license to use our Capsules for personal, non-commercial purposes. No Capsules may be reproduced or distributed in any way without our written permission. Our Capsules may only be refilled by Aerflo; any refill by you or by a third party may violate the Company’s intellectual property rights. You agree not to modify, rent, sell, distribute, or create similar works based (in whole or in part) on all or any part of our Capsules. 

Capsule Warranties 

IN ADDITION TO OTHER DISCLAIMERS STATED HEREIN, WE DISCLAIM ALL WARRANTIES RELATED TO CAPSULES REFILLED BY THIRD PARTIES. WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION REGARDING, OR ENDORSE OR OTHERWISE SPONSOR, ANY THIRD PARTIES WHO STATE THAT THEY ARE AUTHORIZED TO REFILL OUR CAPSULES.

EXCEPT AS OTHERWISE STATED HEREIN, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF OUR CAPSULES. OUR CAPSULES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

Capsule Limitation of Liability

TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, IN ADDITION TO OTHER LIMITATIONS DESCRIBED HEREIN, WE AND OUR LICENSORS, AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, SERVICE PROVIDERS AND RETAILERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE OUR CAPSULES, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, OR DEFECTS.

RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OF OUR CAPSULES OR OTHER THIRD PARTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 

REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.

Capsule Indemnity

You agree to indemnify, defend and hold the Releasees and all of our directors, officers, employees, agents, shareholders, successors, assigns, and contractors harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from your activities in connection with our Capsules. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

OUR INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT

All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs, and other content appearing in or on the Website or Products (“Content”) are protected intellectual property of, or used with permission or under license by, our Company. Such Content may be protected by copyright, trademark, patent or other proprietary rights and laws. This includes the entire Content of the Website or Products, copyrighted and protected as a collective work. All intellectual property rights associated with the Website or Products, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title or interest in any Content by accessing or using the Website or Products. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any Content available on the Website or Products is strictly prohibited.

Subject to your compliance with this Agreement, we grant you a limited license to access and use the Website, Products, and their Content for personal, informational, and shopping purposes. No Content from the Website or Products may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of the rights owner, except that you may download or print one copy of specific Content or software made available for your downloading or printing for your personal, non-commercial home use, subject to your compliance with this Agreement, and retain the same solely for as long as you continue to be permitted to access or use the Website or Products. To use Content under such an exception, you must (i) keep any copyright, trademark, or other proprietary notices intact; (ii) use such Content pursuant to any licenses associated with such Content; (iii) not copy or post such Content on any networked computer or broadcast it in any media; (iv) make no modifications to any such Content; and (v) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Website, Products, or the Content.

YOUR AUTHORIZED USE OF THE WEBSITE

While using the Website, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You may not use the Website for any fraudulent or unlawful purpose, and you may not take any action to interfere with the Website or any other party’s use of the Website. In addition, we expect users of the Website to respect the rights and dignity of others. For example, you may not do any of the following without our consent:

• Post, upload, share, transmit, distribute, facilitate distribution of or otherwise make available to or through the Website any content that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising;
• Post to or transmit through the Website any sensitive personally identifiable information about yourself or third parties, such as social security, credit card or bank account numbers, health or medical information, or other information concerning personal matters, unless specifically requested by us;
• Reproduce, duplicate, copy, publicly display, frame, mirror, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Website;
• Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Website, or express or imply that we endorse any statement you make;
• Violate, or attempt to violate, the security of the Website;
• Disseminate on the Website any viruses, worms, spyware, adware, or other malicious computer code, file or program that is harmful or invasive or is intended to damage or hijack the operation of, or monitor the use of, any hardware, software or equipment;
• Reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Website;
• Build a competitive product or service using the Website, build a product or service using similar ideas, features, functions, or graphics as the Website or determine whether the Website are within the scope of any patent;
• Interfere in any manner with the operation or hosting of the Website or monitor the availability, performance, or functionality of the Website;
• Use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the Website or to collect any information from the Website or any other user of the Website; or
• Assist or permit any persons in violating this Agreement or other applicable laws or rules governing the use of the Website.

Linking: You are granted a limited, non-exclusive right to create text hyperlinks to the Website for informational purposes, provided such links do not portray us in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking website or service does not contain any material that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising. Additionally, notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Website’s root directory, we grant to the operators of public search engines permission to use spiders to copy Content from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such Content, but not caches or archives of such Content. We may revoke these permissions at any time. 

USER CONTENT

You are responsible for any information, text, reviews, posts, images, videos or other materials or content that you post on the Website, upload to us, or transmit through the Website (“User Content”). You agree, represent and warrant that any User Content you post on the Website or transmit through the Website is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such User Content. You shall not upload, post or otherwise make available on or through the Website any User Content protected by copyright, trademark or other proprietary right of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content.

PLEASE DO NOT POST OR SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. By sending any ideas, concepts, know-how, proposals, techniques, suggestions or other User Content to us, you agree that: (i) we are free to use such User Content for any purpose; (ii) such User Content will be deemed not to be confidential or proprietary; (iii) we may have something similar already under consideration or in development; and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us. Be aware that we have no obligation to keep User Content confidential unless explicitly stated. 

User Content License: By submitting User Content to us directly or indirectly (including through any use of third-party social media platforms directed at us), you grant to us (or warrant that the owner of such information and material has expressly granted to us) a royalty-free, perpetual, sublicensable, irrevocable, and unrestricted right and license: (i) to use, reproduce, display, modify, adapt, publish, perform, translate, transmit and distribute or otherwise make available to others such User Content (in whole or in part and for any purpose) worldwide; (ii) to incorporate such User Content in other works in any form, media, product, service or technology now known or hereafter developed for any purpose, including sale, manufacture or advertising (and to exercise all intellectual property rights associated with such products or other works); and (iii) to use your name, screen name, location, photograph, avatar, image, voice, likeness and biographical information provided in connection with the User Content in any and all media and for advertising or promotional purposes. You also hereby grant each user of the Website a non-exclusive license to access your User Content through the Website, and to tag, rate, review, comment on, use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Website and under this Agreement. Additionally, you irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of your User Content that you may have under any applicable law or legal theory. Notwithstanding the foregoing, please note that any personally identifiable information you submit to us through our “Contact Us” forms or other forms that are intended to be confidential will be handled in accordance with our Privacy Policy and will not be publicly disclosed, except as described in our Privacy Policy or otherwise approved by you.

INTERACTIVE FEATURES AND FORUMS

We may host message boards, user-generated content, promotions, reviews, blogs, games, and other interactive features or services through which users can post or upload User Content or otherwise interact with the Website or something on them (each, a “Forum”). We do not endorse User Content posted in Forums, cannot guarantee the accuracy or authenticity of such User Content, and are acting only as a passive conduit for such User Content. User Content may include suggestions for uses of our products that have not been evaluated or approved by us; we do not recommend such uses. You should never use our products in any manner other than as is described on its packaging. WE RESERVE THE RIGHT TO REMOVE ANY FORUM CONTENT, OF ANY VARIETY, AT ANY TIME FOR ANY REASON.

Forums are Public: You acknowledge and agree that Forums are public spaces and that your participation in such Forums creates no expectation of privacy. Further, you acknowledge that any User Content you communicate in Forums may be seen and used by others. You understand that our staff, outside contributors, or other users connected with us may participate in Forums or other aspects of the Websites and may employ anonymous usernames when doing so. Any user failing to comply with this Agreement may be expelled from and refused continued access to Forums in the future. However, we are not responsible for User Content that you or others choose to communicate in Forums, or for your actions or the actions of other users. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON OR THROUGH THE WEBSITE, YOU DO SO AT YOUR OWN RISK.

Our Rights: You acknowledge and agree that we reserve the right (but have no obligation) to do one or all of the following, at our sole discretion: (i) evaluate User Content before allowing it to be posted on the Website or any Forum; (ii) monitor User Content and Forums; (iii) alter, remove, reject, or refuse to post or allow to be posted, without notice to you, any User Content, for any reason or for no reason whatsoever; provided, however, that we shall have no obligation or liability to you for failure to do so or for doing so in any particular manner; and/or (iv) disclose any User Content, and the circumstances surrounding its transmission, to any third-party in order to operate the Website, to protect us, our Website visitors or others, to comply with legal obligations or governmental requests, to enforce this Agreement, or for any other reason or purpose we deem appropriate. If you see User Content on our Website that you believe violates this Agreement, please Contact Us.

Sharing Content: The Websites may also allow you to make recommendations or send Content to others, for example through an “email this” feature that will send content to the email address you provide. Only provide contact information for individuals who have told you they want to receive the Content. By providing someone’s contact information, you represent and warrant that they have confirmed to you that they want to receive the Content. 

INTERACTIVE CHAT AND CHATBOTS

The Website may have chat, live support, instant messaging, or similar functionality to serve you better (“Chats”). Chats may allow you to speak to a human representative, a Chatbot (as defined below), or some combination of the two. You should review our Privacy Policy to learn how we treat information that could identify you gathered via a Chat. If you are signed into an Account while using a Chat, the Chat may link the Account information with you or the Chat interaction. You may not impersonate or attempt to gain information regarding another individual via a Chat. Information provided via a Chat may not be inaccurate, and Chats may not always be available or error-free. Chats may be provided by third-parties, and you may be entering into a contractual agreement with those third-parties when you use the Chat. You should refer to the applicable Chat and its hyperlinks to learn more.

Chats may use interactive, automated computer programs and similar technologies to provide customer service via the Chat (“Chatbots”). Chatbots often work by using “natural language processing” technology to understand your questions and inputs and respond to them with relevant information or follow-up inquiries. Our Chatbots typically identify that you are interacting with a computer program and not a human, sometimes by a “Powered by…” or a similar legend in the Chat or by setting up the Chat in such a way that its apparent that a Chatbot is used. Chatbots use technology to respond to your inputs without human intervention. Although Chatbots are automated, your inputs and responses may be viewed and accessed by our real people, possibly in real time. Be aware that some Chatbots may connect you to one of our human representatives. The Website may provide features that enable you to get support for certain products including a chat feature, a support email address, or a telephone hotline. Information collected via these support methods is subject to our Privacy Policy. Be aware that communications may be monitored for quality assurance and other purposes. All information you provide to us for purposes of support is considered User Content. 

TEXT MESSAGE PROGRAM TERMS

BY PARTICIPATING IN A TEXT MESSAGE PROGRAM, YOU ARE AGREEING TO THE DISPUTES, ARBITRATION, AND CLASS ACTION WAIVER OF THIS AGREEMENT AS WELL AS THE REST OF THE TERMS HEREIN, INCLUDING THE LIMITATION OF LIABILITY.

We offer our customers mobile alerts regarding sales, promotional events, new product releases, loyalty program alerts, cart reminders, and order and shipping alerts by SMS message (each a “Text Message Program”). By participating in a Text Message Program, you acknowledge your personal information is subject to our Privacy Policy.

Signing Up and Opting into a Text Message Program 

Enrollment in a Text Message Program requires you to provide your mobile phone number and to agree to this Agreement. You may not enroll if you are under eighteen (18) years old (or the applicable age of majority in your home state) or if you do not agree to the terms of this Agreement. We reserve the right to stop offering a Text Message Program and/or terminate your participation in a Text Message Program at any time with or without notice.

By opting into a Text Message Program, you:

• Authorize us to use auto dialer or non-auto dialed technology to send recurring text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).
• Acknowledge that you do not have to consent to receive text message advertisements as a condition of purchasing goods or services.
• Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt into the Text Message Program.
• Consent to the use of an electronic record to document your opt-in. 

While you consent to receive messages sent using automated technology, this Agreement shall not be interpreted to suggest or imply that we send any or all of our text messages using an automatic telephone dialing system (or other automated technology, as defined under applicable laws).

Content You May Receive 

Once you opt-in to a Text Message Program, your message frequency may vary. You may receive alerts about:

• Marketing, Offers and Coupon Programs
• Promotional Events and New Product Releases
• Cart Reminders
• Website Appointments and Reminders
• Informational Websites or Alerts
• Order Tracking and Delivery Alerts
• On-Demand Text Message Reply Websites

Opting Out and Seeking Assistance 

You may opt out of receiving text messages from us at any time by texting “STOP,” “END,” “UNSUBSCRIBE,” “CANCEL,” or “QUIT” to any of the text messages you have received from us. For a Text Message Program operated through a different number, text STOP to that number to opt out. Your opt-out request may generate either a confirmation text or a text request to clarify the Text Message Program to which it applies (if you have subscribed to more than one). To complete your opt-out, please provide the requested clarification. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the “STOP,” “END,” “UNSUBSCRIBE,” “CANCEL,” or “QUIT” keyword commands and agree that we and our service providers will have no liability for failing to honor such texts that do not contain such keyword commands. 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 a Text Message Program list, is not a reasonable means of opting out. If you unsubscribe from one of our Text Message Programs, you may continue to receive text messages from us through any other programs you have joined until you separately unsubscribe from those programs. This Agreement will still apply if you withdraw the consent mentioned above or opt out of a Text Message Program.

If you need assistance at any time, or you forget what keywords are supported, just text “HELP” to the number sending the text message you received. 

Cost and Frequency of Messages 

Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone’s pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data, or other charges incurred (usage, subscription, etc.) as a result of using a Text Message Program. 

Text Message Programs are 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 a Text Message Program. 

Supported Carriers 

Supported carriers are AT&T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, U.S. Cellular, Cricket, Alltel, Cincinnati Bell, Cellcom, C-Spire, nTelos, MetroPCS, and other smaller regional carriers. A Text Message Program may not be available on all wireless carriers. We may add or remove any wireless carrier from a Text Message Program at any time without notice. We and mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages. 

Changing Your Phone Number

If you change, forfeit, or deactivate the phone number you provided to us for a Text Message Program, you agree to notify us immediately of such change or to unsubscribe from the Text Message Program prior to changing, forfeiting, or deactivating the phone number. Failure to do so constitutes a material breach of this Agreement. To do so or find out more information on our text message marketing programs, Contact Us. Our applies to text message marketing programs. 

ACCOUNTS

In general, you are not obligated to register for an account in order to access the Website or use the Products. However, certain sections and features of some of the Website or Products, including Capsule Exchange, are available only to users who have registered for an account (“Account”). We may reject, and you may not use, a user ID (or e-mail address) for any reason in our sole discretion. For example, we may reject a user ID (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that violates the intellectual property or other rights of any person; or that is offensive. You may only have one active Account at any given time, and you may not allow other people to use your Account to access the Website.

If you maintain an Account, we expect you to accurately maintain and update any information about yourself that you have provided to us. You agree that you are responsible for all activities that occur under your Account, and for maintaining the confidentiality of your password and restricting access to your computer so others may not access the Website in violation of this Agreement. In addition, you agree to sign out from your Account at the end of each session if you are using a device that is shared with other people.

You agree to notify us of any unauthorized use of your Account username, log-in ID, password or any other breach of security that you become aware of involving or relating to the Website by contacting us as soon as possible. We reserve the right to take any and all actions we deem necessary or reasonable to maintain the security of the Website and your Account, including without limitation, terminating your Account, changing your password or requesting information to authorize transactions on your Account. WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.

DESCRIPTIONS, TESTIMONIALS, OPINIONS

The Website may contain expert opinions. Information on the Website identified as expert opinion, or accessed from the Website by a hyperlink, represents the opinions of those respective experts, which are not necessarily those of Company. Certain Website may also make statements related to supplements or similar products. 

Some Website may contain blogs with information about how to use a product or statements about a product’s effectiveness. Some of these statements are not written by us and do not represent our opinion. Other statements may be written by us but are not a representation or warranty about a product and should not be relied upon as such. 

Similarly, Website may present you with information on events, charitable causes, and the like. This is presented for informational purposes only and should not be considered our endorsement of same. 

The Website may allow you to leave product reviews, opinions, or testimonials, all of which is User Content. If you leave a review on another website, we may (but are not required to) reach out with a separate agreement to further define our rights in the User Content. 

Descriptions and graphic representations of products on the Website are for informational purposes only and may not completely reflect the current product or its packaging. We reserve the right to change product descriptions at any time, and we are not responsible for variations between a product description and the actual product. Technological issues, such as your device settings, may alter how a product appears on the Website.

WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON THE WEBSITE TO THE MAXIMUM EXTENT ALLOWED BY LAW. 

THIRD-PARTY CONTENT AND LINKS

Any information, statements, opinions or other information provided by third parties and made available on the Website are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, service, offer, statement or other third-party content on the Website. 

We may provide on the Website, solely as a convenience to users, links to websites, social media pages, mobile applications, or other services operated by other entities. If you click these links, you will leave the Website. If you decide to visit any external link, you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites, services, or the information appearing thereon or any of the products or services described thereon. Links do not imply that we are legally authorized to use any trademark, trade name, logo, or copyright symbol displayed in or accessible through the links; or that any linked website or service is authorized to use any of our trademarks, logos, or copyright symbols.

We may maintain a presence on and link to social media websites, including Facebook, LinkedIn, Twitter, YouTube, TikTok, and Instagram, and others (collectively, “Social Media Pages”), to provide a place for people to learn more about us and our products and to share experiences with our products. When you visit these Social Media Pages, you are no longer on the Website, but rather a website operated by a third party. All comments, visuals, and other materials posted by visitors to our Social Media Pages do not necessarily reflect our opinions, values, or ideas. All visitors to our Social Media Pages must comply with the respective social media platform’s terms of use.

YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES, AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES. 

COPYRIGHT INFRINGEMENT NOTICES

It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). This section describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material. If we receive proper notification of claimed copyright infringement, our response to these notices may include removing or disabling access to the allegedly infringing material and/or terminating or suspending users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the provider of the allegedly infringing content so that they may make a counter notification pursuant to the DMCA. It is our policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect their copyrighted works that we determine are reasonable under the circumstances.

If you believe that any Content on the Website or a Product infringes upon any copyright which you own or control, you may send a written notification to our designated copyright agent (the “Designated Agent”), identified below, with the following information:

• A description of the copyrighted work or other intellectual property that you claim has been infringed, with sufficient detail so that we can identify the alleged infringing material;
• The URL or other specific location on the Website or Product that contains the alleged infringing material described in above, with reasonably sufficient information to enable us to locate the alleged infringing material;
• Your name, mailing address, telephone number and email address;
• The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by you that the information contained in your notice is accurate and that you attest under penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.

Designated Agent: Greenberg Traurig, LLP
Email: DMCAAgent@gtlaw.com
Address: 1144 15th Street, Suite 3300 | Denver, Colorado 80202

To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material. 

We may terminate users who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer. If you receive an infringement notification from us, you may file a counter notification pursuant with our Designated Agent pursuant to the DMCA. To file a counter notification, please provide our Designated Agent with the following information: 

• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access was disabled;
• Your name, mailing address, telephone number and email address;
• The following statement: “I consent to the jurisdiction of [insert one of the following: (1) “the Federal District Court in which my mailing address is located”, or (2) if you reside outside of the United States, “the United States District Court for the Southern District of New York”]”;
• The following statement: “I will accept service of process from [insert the name of the person who submitted the infringement notification] or his/her agent”;
• The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and
• Your signature, in physical or electronic form.

Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Further, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of your counter notice, unless Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Website or a Product.

UPDATES TO THIS AGREEMENT

We may revise or otherwise change or update this Agreement from time to time. We will use reasonable efforts to notify you of such changes. However, please check the “Last Updated” legend at the top of this page to see when this Agreement was last revised. When changes are made to this Agreement, they will become immediately effective when published on this page unless otherwise noted. We encourage you to periodically review this Agreement―there may have been changes to our policies that may affect you. If you do not agree to the Agreement as modified, then you must discontinue your use of the Website and Product. Your continued use of the Website or a Product will signify your continued agreement to this Agreement as revised. We will make reasonable efforts to notify you of material changes to this Agreement. Such efforts might include posting notice on the Website, an email to the address we have on file, or a message in your Account.

OTHER TERMS, CONDITION, AND POLICIES

This Agreement applies exclusively to your access to, and use of, the Website and Products, and does not alter in any way the terms or conditions of any other agreement you may have with us for Products, services, programs, or otherwise. Additional terms, conditions, and/or policies may apply to use of specific portions of the Website and to the purchase of certain Products or services and are included as part of this Agreement, whether they reference this Agreement or not.

Other types of agreements and policies that you may be subject to include, but are not limited to:

• Policies for retailers, distributors, and resellers
• The Capsule User License Agreement, which is incorporated herein
• Product terms
• Privacy policies
• Employment agreements

Other policies and agreements are typically found by navigating the Website, typically by checking website headers and footers and by reviewing hyperlinked terms at the point of sale.

We have also adopted a Privacy Policy that you should refer to in order to fully understand how we use and collect information. To learn about our privacy practices, please refer to our Privacy Policy.

Should we employ you, none of the materials provided on the Website constitute or should be considered part or of an employment contract or an offer for employment. 

IMPORTANT LEGAL TERMS

Termination

Your access and use of the Website or Products and this Agreement are in effect until terminated by you or us. We may terminate this Agreement by notifying you using any contact information we have about you or by posting such termination on the Website, including in your Account. You may terminate this Agreement by providing written notice of termination, including your detailed contact information and any Account information or other Website credentials, to us using the information in the Contact Us section. In addition to any right or remedy that may be available to us under applicable law, we may suspend, limit, or terminate all or a portion of your access to the Website or any of the features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. We may be protected for liability from these actions under the Communications Decency Act, 47 U.S.C. § 230.

The provisions of this Agreement concerning protection of intellectual property rights, authorized use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.

Upon any such termination, (i) you must destroy all Content obtained from the Website and Products and all copies thereof; (ii) you will immediately cease all use of and access to the Website and Products; (iii) we may delete or disable access to any of your User Content at any time; (iv) and we may delete your Account at any time. You agree that if your use of the Website is terminated pursuant to this Agreement, you will not attempt to access the Website under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefore. Your use of the Website or a Product after termination will be a violation of this Section, which survives any termination. 

Even after the termination of this Agreement, your Account, or access to the Website or Products, any User Content you have posted or submitted may remain on the Website indefinitely.

Children

The Website and our Products are not designed to appeal to minors, and we do not knowingly attempt to solicit or receive any information from children under thirteen (13) years of age. YOU MUST BE AT LEAST THIRTEEN (13) YEARS OF AGE TO ACCESS AND USE THE WEBSITE AND PRODUCTS. If you are under the age of majority in your home state, which is eighteen (18) years in most states, you may not establish an Account, and you should use the Website only with the supervision of a parent or guardian who agrees to be bound by this Agreement. Additionally, sections of the Website, as well as promotions, programs and commerce we may offer on the Website, may be explicitly limited to people over the age of majority. If you are not old enough to access the Website or certain sections or features of the Website, you should not attempt to do so.

Disclaimer of Warranty

IN ADDITION TO OTHER DISCLAIMERS STATED HEREIN, WE DISCLAIM ALL WARRANTIES RELATED TO CAPSULES REFILLED BY THIRD PARTIES. WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION REGARDING, OR ENDORSE OR OTHERWISE SPONSOR, ANY THIRD PARTIES WHO STATE THAT THEY ARE AUTHORIZED TO REFILL OUR CAPSULES.

WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF THE CONTENT AVAILABLE ON PRODUCTS, THE WEBSITE, OR ANY OTHER SITES LINKED TO OR FROM THE WEBSITE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF AUTO-SHIP. DOWNLOADING OR OTHERWISE OBTAINING ANY CONTENT THROUGH THE WEBSITE OR PRODUCTS IS DONE AT YOUR OWN RISK. THE PRODUCTS, WEBSITE, AND CONTENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

Limitation of Liability

TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN ADDITION TO OTHER LIMITATIONS DESCRIBED HEREIN, WE AND OUR LICENSORS, AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, SERVICE PROVIDERS AND RETAILERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR THE INABILITY TO USE THE PRODUCTS, WEBSITE, CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.

RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA OR PROFITS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OF THE WEBSITE OR PRODUCTS, OR OTHER THIRD PARTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 

REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.

Indemnity

You agree to indemnify, defend and hold us and the Releasees and all of our directors, officers, employees, agents, shareholders, successors, assigns, and contractors harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) your breach of any provision of this Agreement; (ii) your activities in connection with the Website and Products (including our Capsules); or (iii) User Content or other information you provide to us through the Website. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

Consent to Communication

When you use the Website or send communications to us through the Website, you are communicating with us electronically. You consent to receive electronically any communications related to your use of the Website or Products. We may communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us. Please note that by submitting User Content, creating an Account, or otherwise providing us with your email address, postal address or phone number, you are agreeing that we or our agents may contact you at that address or number in a manner consistent with our Privacy Policy.

Severability

If any provision of this Agreement is held to be invalid or unenforceable, it shall be replaced in interpretation by a valid and enforceable term that most closely aligns with the intent of the original provision. If that is not possible, the provision shall be removed, and the rest of the Agreement will be enforceable. 

Assignment

We may assign this Agreement at any time with or without notice to you. You may not assign or sublicense this Agreement or any of your rights or obligations under this Agreement without our prior written consent.

DISPUTES, ARBITRATION, AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT OR TO PURSUE CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY.

ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. IF, HOWEVER, EITHER THE CLASS ACTION WAIVER OR COORDINATED CLAIMS PROVISION BELOW ARE FOUND INVALID, THEN THE SPECIFIC INVALID PROVISION WILL BE UNENFORCEABLE AND WILL BE SEVERED AND THE REMAINDER OF THE ARBITRATION PROVISIONS WILL REMAIN IN FULL FORCE. 

Agreement to Arbitrate

You and we agree that any dispute, claim or controversy, including those known or unknown that may be later discovered, arising out of or relating to this Agreement, other agreements on the Website, or the Privacy Policy, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be either determined by binding arbitration in New York City before one arbitrator or submitted to small claims court in New York City. If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules.

No Class Actions

YOU AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 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 that party’s individual claim. 

Seeking Arbitration

If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: Legal Department, 18 Bridge Street, 4G, Brooklyn, NY 11201. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com. If you are required to pay a filing fee, after we receive Notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US $10,000 or the arbitrator determines the claims are frivolous, in which event you will be responsible for filing fees.

Hearing

If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.

Award

In the event arbitration awards you damages of an amount at least US $100 greater than our last documented settlement offer, we will pay your awarded damages or US $2,500, whichever is greater.

Injunctive Relief

Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.

Confidentiality

You and we shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Coordinated Proceedings

If 25 or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and our counsel shall each select five cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against us. Individuals bringing Coordinated Claims shall be responsible for up to US $250 of their filing fees or the maximum permissible under the applicable arbitration rules. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending. We will take such action, if any, required to effectuate such tolling.

Governing Law and Rules

This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, exclusive of conflict or choice of law rules. You and we acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.

Severance of Arbitration Agreement

If the clauses concerning and describing the procedures and obligations related to Coordinated Claims and Test Case procedures is or becomes invalid or unenforceable, then the remaining entire arbitration agreement and any clauses concerning, relating to, specifying or otherwise describing the arbitration agreement shall be severed from this Agreement. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance. 

TERMS FOR USERS IN CERTAIN GEOGRAPHIC LOCATIONS

New Jersey Residents

If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (i) Disclaimer of Warranty; (ii) Limitation of Liability; (iii) Indemnity; and (iv) under Disputes, Arbitration, and Class Action Waiver and the governing law provisions (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of this Agreement are found to violate an established legal right.

California Residents 

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

If you are a California resident, you agree to consciously waive all claims, both known and unknown that may be later discovered and expressly forgo and waive all protections as by 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.” By using this Website, you agree that these California Civil Code Section 1542 protections no longer apply to you.

CONTACT US

If you have questions about this Agreement, or if you have technical questions about the operation of the Website, please contact us through this writing us at hello@aerflo.co. If you have any questions or comments about our company or our products or have other customer service needs, please click here for information on contacting our customer service representatives.