Terms of service
TERMS OF USE
Last Updated: July 1, 2026
IMPORTANT NOTICE:
· THESE TERMS OF USE (THESE “TERMS”) CONTAIN DISCLAIMERS OF WARRANTIES AND LIABILITY, A MANDATORY INDIVIDUAL ARBITRATION PROVISION, AND A CLASS ACTION WAIVER.
· EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION AND JURY TRIAL WAIVER” SECTION BELOW, ALL DISPUTES, ACTIONS AND CLAIMS BETWEEN YOU AND OTSUKA AMERICA, INC. (OAI) WITH REGARD TO THESE TERMS AND YOUR USE OF THIS SITE SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
TABLE OF CONTENTS
1. INTRODUCTION; ACCEPTANCE OF THESE TERMS
2. ELIGIBILITY
3. CHANGES TO THE SITE
4. USE OF THE SITE; RESTRICTIONS
5. ACCOUNT REGISTRATION, SECURITY, AND RESPONSIBILITY
6. PRODUCT INFORMATION AND COSMETIC DISCLAIMER
7. ORDERS, PRICING, AND AVAILABILITY
8. SUBSCRIPTIONS; TRIAL AND PROMOTIONAL OFFERS
9. OWNERSHIP OF SITE CONTENT
10. YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
11. VIRAL DISTRIBUTION
12. WIDGETS
13. REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
14. INFORMATION AND CONTENT YOU SUBMIT
15. FEEDBACK
16. USER INTERACTIONS AND DISPUTES
17. USER CONTENT POLICY
18. SWEEPSTAKES, CONTESTS & PROMOTIONS
19. THIRD PARTY LINKS, CONTENT AND APPLICATIONS
20. SOCIAL MEDIA FEATURES
21. LINKING POLICY
22. MOBILE SERVICES AND TEXT MESSAGE PROGRAM TERMS
23. DISCLAIMER OF WARRANTIES
24. LIMITATION OF LIABILITY
25. INDEMNIFICATION
26. TERMINATION; SUSPENSION
27. LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
28. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION AND JURY TRIAL WAIVER
29. ELECTRONIC COMMUNICATIONS AND NOTICES
30. INJUNCTIVE RELIEF
31. CALIFORNIA RESIDENTS
32. MISCELLANEOUS
33. OUR RIGHT TO UPDATE THESE TERMS
34. CONTACT INFORMATION
1. INTRODUCTION; ACCEPTANCE OF THESE TERMS
These Terms of Use, together with any documents they expressly incorporate by reference (collectively, these “Terms”), are entered into by and between you and Otsuka America, Inc. (“OAI”, “we”, “us”, or “our”). These Terms apply to and govern your access to and use of any website, mobile application, or platform owned or controlled by OAI upon which these Terms are posted, including any content, functionality, and services offered on or through such website, mobile application, or platform (collectively, the “Site”), whether as a guest or registered user, including the purchase of cosmetic products offered through the Site (“Products”). These Terms constitute a legally binding agreement between you, the person using the Site (“you” or “your”), and OAI.
Please read these Terms carefully before using the Site, as they affect your legal rights and obligations. By accessing or using the Site, you accept and agree to be bound and abide by these Terms and our Privacy Policy, which is expressly incorporated into these Terms by reference.
If you do not agree to these Terms, you must not use the Site.
2. ELIGIBILITY
The Site is offered and available to users who are eighteen (18) years of age or older and reside in the United States.
By using the Site, you represent and warrant that you meet these eligibility requirements. If you do not meet these requirements, you must not use the Site.
3. CHANGES TO THE SITE
We may update, modify, suspend, or discontinue the Site, or any content, features, functionality, products, services, or information made available through the Site, at any time, with or without notice, subject to applicable law. We do not guarantee that any Site Content, product, service, feature, or functionality will be available at all times or remain unchanged.
Changes are effective when posted. Your continued use of the Site after any changes are posted constitutes acceptance of these Terms, including all modifications, if any, to these Terms.
4. USE OF THE SITE; RESTRICTIONS
You may use the Site only for lawful purposes and in accordance with these Terms.
You agree that you will not, directly or indirectly, and will not assist, encourage, or enable any third party to:
(a) use the Site, or all or any information, text, images, audio, video, and any other materials that are included in or are otherwise a part of the Site, including past, present and future versions, domain names, source and object code and the “look and feel” of the Site (“Site Content”) for any unlawful, fraudulent, misleading, harmful, or unauthorized purpose, or in violation of any applicable federal, state, local, or international law, rule, or regulation;
(b) use the Site or any Site Content for any commercial purpose, including advertising, solicitation, resale, republication, redistribution, data brokerage, competitive analysis, or development of any product, service, database, model, or similar offering, except with our prior written permission;
(c) purchase or attempt to purchase products for resale, distribution, export, or any other commercial purposes, or place orders that we reasonably believe are intended for such purposes, including by using multiple accounts, payment methods, shipping addresses, identities, or other means to evade purchase limits or other restrictions;
(d) copy, reproduce, modify, adapt, translate, distribute, display, perform, publish, create derivative works from, sell, resell, license, or otherwise exploit the Site or any Site Content, except as expressly permitted by these Terms;
(e) frame, mirror, embed, or use framing techniques to enclose the Site or any Site Content, or use any meta tags, hidden text, or other metadata using our name, trademarks, product names, or other proprietary materials without our prior written permission;
(f) use any robot, spider, crawler, scraper, data mining tool, automated script, artificial intelligence tool, extraction method, or other automated or manual process to access, monitor, copy, collect, scrape, index, mine, train on, or otherwise extract the Site, Site Content, products information, pricing, images, reviews, or personal information of others, except with our prior written permission or, solely for search engines, as permitted by our robots.txt file;
(g) reverse engineer, decompile, disassemble, modify, or attempt to discover the source code, object code, underlying structure, algorithms, or security features of the Site or any software, systems, or technology associated with the Site;
(h) interfere with, disrupt, impair, disable, overburden, or compromise the operation, integrity, performance, availability, or security of the Site or any systems, networks, servers, or accounts associated with the Site;
(i) attempt to gain unauthorized access to the Site, any account, computer system, network, server, database, or other technology connected to the Site, including through hacking, password mining, credential stuffing, or any other unauthorized means;
(j) transmit, upload, introduce, or distribute any virus, malware, Trojan horse, worm, logic bomb, corrupted file, or other code or material that is malicious, technologically harmful, or intended to interrupt, damage, destroy, alter, or limit the functionality of the Site or any computer system;
(k) impersonate any person or entity, misrepresent your identity, age, location, affiliation, or authority, or provide false, inaccurate, incomplete, or misleading information in connection with your use of the Site;
(l) engage in unsolicited or unauthorized advertising, promotional messages, spam, chain letters, pyramid schemes, or other similar solicitation through or in connection with the Site;
(m) harass, abuse, threaten, defame, stalk, or otherwise harm or interfere with the rights of any other person or entity through or in connection with the Site;
(n) make, submit, post, transmit, or otherwise provide any false, misleading, deceptive, unsubstantiated, medical, therapeutic, disease-related, drug-like, or otherwise impermissible claim about our products, including any claim that a product diagnoses, cures, mitigates, treats, or prevents any disease or condition, or affects the structure or function of the body;
(o) remove, obscure, or alter any copyright, trademark, proprietary rights, or other legal notices contained in or displayed on the Site or Site Content; or
(p) otherwise use the Site in any manner that we reasonably believe could damage, disable, overburden, impair, or harm us, our affiliates, our licensors, our service providers, other users, or the operation or reputation of the Site, our products, or our business.
Any use of the Site or Site Content not expressly permitted by these Terms is prohibited and may result in the immediate termination of the license granted under these Terms. We reserve the right, in our reasonable discretion and with or without notice, to suspend, restrict, block, or terminate your access to the Site or your account, cancel or limit orders, refuse service, remove or modify content, and take any other action we deem appropriate if we believe that you have violated these Terms, applicable law, or the rights of us or any third party, or if your conduct creates risk or potential liability for us, our affiliates, our service providers, other users, or any third party.
5. ACCOUNT REGISTRATION, SECURITY, AND RESPONSIBILITY
Certain features of the Site, including purchasing Products, accessing order history, managing subscriptions, or using other account-based features, may require you to create an account or provide certain information to us.
You agree to provide and maintain accurate, current, complete, and truthful information in connection with your account and your use of the Site. You may not create an account for anyone else, use another person’s account, impersonate any person or entity, or misrepresent your identity, age, location, affiliation, or authority.
Your account, username, password, and other account credentials are personal to you. You are responsible for maintaining the confidentiality and security of your account credentials and for restricting access to your computer, mobile device, and account. You agree not to sell, transfer, assign, sublicense, or otherwise make your account or account credentials available to any other person. You are solely responsible for all activities that occur under your account, username, password, or other credentials, whether or not authorized by you. You agree to notify us immediately if you become aware of, or suspect, any unauthorized access to or use of your account, password, payment information, or any other breach of security. We are not responsible for any loss or damage arising from your failure to protect your account credentials or comply with this Section.
We reserve the right, in our sole discretion and with or without notice, to refuse service, suspend, disable, restrict, or terminate your account or access to the Site, cancel or limit orders, remove or modify account information, or take any other action we deem appropriate if we believe that you have violated these Terms, provided false or misleading information, engaged in fraudulent, abusive, unauthorized, or unlawful activity, or otherwise created risk or potential liability for us, our affiliates, our service providers, other users, or any third party.
If your account or access to the Site is suspended or terminated, you remain responsible for any outstanding charges, orders, obligations, or liabilities incurred before such suspension or termination. Termination or suspension of your account will not limit any other rights or remedies available to us under these Terms, at law, or in equity.
You agree that you are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Site. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Site, including, without limitation, those governing your transmission or use of any software or data.
By providing us with your contact information, you agree that we may use such information to contact you regarding your account, orders, subscriptions, transactions, or other administrative matters, subject to our Privacy Policy and these Terms. Your participation in any text message or other mobile messaging program is subject to the “Mobile Services and Text Message Program Terms” section below and any additional disclosures provided at the time you sign up.
6. PRODUCT INFORMATION AND COSMETIC DISCLAIMER
The Products are cosmetic products intended for external use only, unless otherwise expressly stated on the applicable product label. Our Products are intended to cleanse, beautify, promote attractiveness, moisturize, improve the appearance of, or otherwise alter the appearance of the skin. They are not intended to diagnose, treat, cure, mitigate, or prevent any disease or medical condition, or to affect the structure or any function of the body.
The information, content, product descriptions, ingredient descriptions, images, videos, recommendations, tips, and other materials made available on or through the Site are provided for general informational and educational purposes only. They are not intended to constitute medical or healthcare advice, diagnosis, treatment, or a substitute for advice from a physician, dermatologist, pharmacist, or other qualified healthcare professional.
You should use Products only as directed and in accordance with all instructions, warnings, and other information provided on the product label or packaging. If irritation, redness, discomfort, or any other adverse reaction occurs, discontinue use and consult a qualified healthcare professional. If you have a medical condition, sensitive skin, allergies, are pregnant or nursing, or have questions about whether a Product is appropriate for you, you should consult a qualified healthcare professional before use.
Individual results may vary, and we do not guarantee any particular result or outcome from the use of any Product, and product performance may vary depending on factors such as skin type, skin condition, frequency and method of use, environmental conditions, and other individual factors.
Cosmetic products and cosmetic claims are not subject to premarket approval by the U.S. Food and Drug Administration. Nothing on the Site should be interpreted as representing that any product has been approved by the FDA or any other governmental authority, unless expressly stated by us in writing.
7. ORDERS, PRICING, AND AVAILABILITY
All orders placed through the Site are subject to our acceptance. Your receipt of an order confirmation or other acknowledgment does not constitute our acceptance of your order or confirmation of our offer to sell any Product.
We reserve the right, in our sole discretion and to the extent permitted by applicable law, to accept, decline, refuse, limit, or cancel any order, in whole or in part, at any time and for any reason, including if a Product is unavailable, if there is an error in pricing or product information, if we suspect fraud, unauthorized activity, violation of these Terms, resale or other commercial activity, or if we are unable to process or fulfill the order.
Prices, product descriptions, product images, ingredients, packaging, availability, promotions, discounts, shipping charges, taxes, and other information displayed on the Site are subject to change without notice, except as required by applicable law.
We strive to provide accurate and current information, but errors, inaccuracies, or omissions may occur, including with respect to pricing, promotions, availability, product descriptions, product images, shipping charges, taxes, and order information. We reserve the right to correct any errors, inaccuracies, or omissions, to update information, and to cancel or refuse any order based on incorrect information, even after an order has been submitted or confirmed.
Products made available through the Site are intended for personal use by end-user consumers only. You may not purchase Products for resale, redistribution, export, or other commercial purposes. We reserve the right, with or without notice, to limit quantities purchased per person, per household, per account, per payment method, per shipping address, or otherwise, and to cancel or refuse orders that we believe, in our sole discretion, may violate this restriction.
Promotions, discounts, free shipping offers, gifts with purchase, trial offers, or other special offers are subject to the terms disclosed at the time of the offer and may be modified, suspended, or discontinued at any time, except as required by applicable law. Promotions may not be combined with other offers unless expressly stated.
For information regarding shipping procedures, please see our Shipping Policy. For information regarding returns, refunds, and exchanges after your purchase, please see our Returns & Refunds Policy.
8. SUBSCRIPTIONS; TRIAL AND PROMOTIONAL OFFERS
Certain Products may be offered, where available, as part of an automatically renewing subscription plan.
A. Subscription Plans. If you enroll in a subscription plan, you will receive recurring deliveries of the Products covered by your subscription in accordance with the subscription duration, delivery frequency, and other terms disclosed to you at the time of enrollment. You authorize us and our third-party payment processor to charge your selected payment method on a recurring basis in accordance with the price, billing frequency, Products, and other subscription terms disclosed to you at the time of enrollment, until you cancel your subscription in accordance with this Section.
The specific terms of your subscription plan, including the Product covered, price, billing frequency, shipping charges, applicable taxes, renewal terms, and cancellation instructions, will be disclosed to you before you complete your enrollment. By enrolling in a subscription plan, you agree to those subscription terms and authorize recurring charges to your payment method.
Where required by applicable law, we will obtain your express affirmative consent to the automatic renewal or continuous service terms before charging your payment method, and we will maintain records of your consent as required by applicable law.
B. Trial or Promotional Offers. From time to time, we may offer trial or promotional offers in connection with a subscription plan. Unless otherwise disclosed at the time of enrollment, the Product included in a trial offer may be provided at no charge, but you may be responsible for shipping charges and applicable taxes.
C. Automatic Subscription Conversion. If a trial or promotional offer automatically converts into a paid subscription plan, the length of the trial or promotional period, the date or timing of the first paid charge, the price and billing frequency of the subscription plan, and the method for cancellation will be disclosed to you before you complete your enrollment.
By placing an order for a trial or promotional offer that automatically converts into a paid subscription plan, you agree that, unless you cancel before the end of the trial or promotional period, your trial or promotional offer will automatically convert into a paid subscription plan, and we or our third-party payment processor may charge your selected payment method for the subscription plan at the price and frequency disclosed to you at checkout.
D. Recurring Charges. Subscription charges will continue on a recurring basis until you cancel your subscription or we otherwise terminate the subscription plan. The amount charged may include the Product price, shipping charges, and applicable taxes, as disclosed at checkout or otherwise provided in accordance with applicable law.
If we make a material change to the price, billing frequency, or other material terms of your subscription plan, we will provide notice and obtain any consent required by applicable law before the change becomes effective.
E. Managing Your Subscription. If made available by us, you may manage certain aspects of your subscription through your online account or by contacting us as described in the “Contact Information” section below. For example, subject to availability, applicable deadlines, and any limitations disclosed at the time of enrollment or in your account, you may be able to change your delivery frequency, shipping address, payment method, product selection, quantity, next shipment date, or skip, pause, resume, or cancel your subscription.
Any changes you make to your subscription will apply only to future orders that have not yet been processed, charged, prepared for shipment, or shipped. Changes may not affect any order that is already in process. If you pause or skip a subscription, you will not be charged for shipments that are successfully paused or skipped before the applicable deadline, but your subscription may automatically resume in accordance with the subscription terms then in effect unless you cancel or further modify your subscription.
We may limit the availability of subscription changes, skips, pauses, or other subscription management features, including based on product availability, order processing status, shipping restrictions, fraud prevention, system limitations, or other operational or legal requirements. If we make a material change to the price, billing frequency, renewal terms, or other material terms of your subscription, we will provide notice and obtain any consent required by applicable law before the change becomes effective.
F. Cancellation. You may cancel your subscription at any time through your online account, by email, or by phone. If you enrolled in a subscription online, you may cancel your subscription online at any time through your account or through any other online cancellation method we make available, without having to call customer service, subject to applicable law.
Cancellation requests will be processed promptly in accordance with applicable law. If you cancel, you may continue to receive any Products or services already paid for, unless otherwise disclosed at the time of cancellation or required by applicable law. Cancellation will not affect charges already incurred or orders already processed before your cancellation request is effective.
G. Re-Enrollment. If you previously enrolled in, cancelled, or completed a trial or promotional offer or subscription plan, you may be eligible to enroll in a new subscription plan, subject to the terms disclosed at the time of re-enrollment. Unless expressly stated otherwise, trial or promotional offers are available only to eligible customers and may be limited to one offer per customer, household, account, payment method, or shipping address.
9. OWNERSHIP OF SITE CONTENT
The Site Content is owned, controlled, or licensed by OAI, its subsidiaries, affiliates, licensors, or other providers of such Site Content, and is protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property and proprietary rights laws and treaties.
The Site Content may not be copied, reproduced, downloaded, or distributed in any way, in whole or in part, except with the express permission of OAI and as is expressly provided in these Terms. Any unauthorized use of the Site Content is prohibited.
10. YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
Subject to your strict compliance with these Terms, OAI grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable, and non-transferable license to access, view and download (if downloading is expressly offered by OAI) the Site Content (with the exception of source and object code, other than as made available to access and use via standard web browsers). When you access or view the Site Content, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Site Content; and (c) not copy or adapt any object code associated with the Site or reverse engineer, modify or attempt to discover any source code associated with the Site, nor allow or assist any third party in doing so.
Any use of the Site not expressly permitted by these Terms is a breach of these Terms. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of these Terms, your right to use the Site shall stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are retained by OAI and its licensors.
11. VIRAL DISTRIBUTION
OAI grants you a limited, revocable permission, subject to the restrictions in these Terms, to share portions of the Site Content with others via the following methods when a Site feature purposefully makes such sharing available (“Viral Distribution”): (a) sending Site Content to friends or acquaintances at no charge; (b) posting and displaying a copy of Site Content on your personal website or social media page; or (c) posting and displaying a copy of Site Content on a third-party website or platform that permits users to post content, provided that such website or platform does not charge for access to those materials or associate those materials with any products, services, or advertising without our prior written consent. If you engage in Viral Distribution, you agree not to make any false, misleading, unsubstantiated, unauthorized, medical, therapeutic, disease-related, drug-like, or other impermissible product claims, including claims that any product diagnoses, cures, mitigates, treats, or prevents any disease or condition, or affects the structure or function of the body or skin. You also agree that you will not imply that you are affiliated with, sponsored by, endorsed by, or acting on behalf of OAI or any of its products, or that OAI has approved your comments, unless we have expressly authorized you to do so in writing.
12. WIDGETS
The Site may provide certain content that you may choose to include on your personal web page, blog, third party website or social networking profile page, or similar page by pasting the HTML or other code provided by OAI and labeled as embed code (or a similar identifying label) (“Widget”). Widgets are Site Content and subject to the limited, revocable license described above. You agree that you will not include or otherwise make available a Widget on a web page or website containing content that is distasteful, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable (in OAI’s sole opinion). As described in the “Disclaimer of Warranties” section of these Terms, OAI makes no specific warranties about Widgets. OAI may discontinue providing the services necessary for the Widgets to operate at any time for any reason without any liability to you. You agree that our permission to you to use Widgets on your personal page does not provide you (or any third party) with any intellectual property rights in or to the Widget or any content made available via any Widget. In addition, OAI may disable Widgets that you include on any personal page if you violate these Terms (as determined by OAI in its sole discretion) or for any or no reason, without any liability to you.
13. REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
You may not use the Site for any purpose or in any manner that infringes the intellectual property rights of any third party. If you have a good faith belief that content on a Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA“), OAI has a designated agent for receiving notices of copyright infringement and OAI follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide OAI’s copyright agent (whose contact information is set forth below) the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you; (e) a statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or authorized to act on behalf of such owner.
Please send your notice of claims of copyright infringement on or regarding a Site or a complaint regarding alleged violation of rights other than copyrights to OAI’s copyright agent, who can be reached as follows:
Mailing Address: One Embarcadero Center, Suite 2020 San Francisco, CA 94111
Phone: 415-986-5300
E-mail Address: OAILegal@otsuka-america.com
NOTE: This contact information is for notices or complaints regarding potential copyright and other intellectual property infringement only.
We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we have the right to remove your content along with that of the alleged infringer pending resolution of the matter.
14. INFORMATION AND CONTENT YOU SUBMIT
The Site may provide you the opportunity to participate and post content publicly in forums, through interactive features and through other communication functionality (collectively, “Community Forums”). You may choose to submit or post via Community Forums images, videos, writings, questions, comments, suggestions, or other content (collectively, “User Content”).
You agree that your User Content shall be treated as non-confidential and non-proprietary and shall not be returned. You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant OAI the license below. Upon OAI’s request, you shall furnish OAI any documentation, substantiation or releases necessary to verify your compliance with these Terms.
You remain the owner of your User Content, but you acknowledge that OAI must have a license from you in order to accept your User Content. Accordingly, you grant to OAI and its parents, affiliates, subsidiaries, successors in interest, licensees, and assigns, and each of their officers, directors, shareholders, agents, representatives and employees (each an “OAI Party” and, collectively, the “OAI Parties”) an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license (but not obligation) to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your User Content for any purpose whatsoever in all formats, on or through any media, technology or device now known or hereafter developed.
15. FEEDBACK
The Feedback you provide to us shall be and remain our exclusive property. “Feedback” means all text, photographs, images, illustrations, graphics, sounds, video and audio-video clips, customer reviews, testimonials, and any other content you post on or through this Site or share with us that is specifically about how we can improve this Site, the Products, and services we make available through this Site, or your experience with our Products and services. Your submission of Feedback shall constitute an assignment to us of all worldwide rights, title, and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We shall be entitled to reduce to practice, exploit, make, use, copy, disclose, display, or perform publicly, distribute, improve, and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
16. USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct of any user. We have the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
17. USER CONTENT POLICY
When you contribute, upload, or otherwise provide User Content to the Site, you agree to comply with the following requirements:
- User Content must be your own. All User Content must be created and owned by you or in the public domain, or all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Site and elsewhere.
- No pictures or images of anyone but you and your friends and family. If you choose to upload photos to the Site, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know and that you have their express permission to post it.
- No third-party materials. Your User Content should not contain any visible logos, phrases, or trademarks or other third-party materials. Do not use or submit any User Content that belongs to another person without that person’s permission (including uploading content found elsewhere on the Internet).
- No music please. Your User Content may not contain any music unless you wrote and perform it or you have all rights to the work, including any performances.
- Keep User Content relevant. Your User Content should relate to the content on the Site and should be intended to add to the discussion on the Site; it should not include irrelevant topics or postings.
- Follow codes of social decency. Be respectful. Do not make personal attacks. Express yourself with non-offensive individual self-expression. Cursing, harassing, stalking, posting insulting comments, personal attacks, gossip, or similar actions are prohibited. Your User Content may not threaten, abuse, or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual preference or disability or that are defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit. If you think your User Content might offend someone, chances are that it will, so it does not belong on the Site.
- Do not use the Site for commercial purposes. Your User Content may not advertise or promote a product or service except those provided on the Site. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
- No User Content that is violent, illegal, or inappropriate. Your User Content must not violate these Terms, any law or legal right of any other person. Your User Content may not promote any illegal activity and your User Content may not promote violence nor describe how to perform a violent act. If you do upload or post User Content that is illegal, violent in nature, or otherwise inappropriate, we have the right to take any action that we deem appropriate, in our sole discretion, including reporting you to law enforcement.
- Represent yourself truthfully. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person, OAI or any other company.
- Keep private information private. Remember that Community Forums are public and User Content will be accessible and viewable by other users. Do not post personal information about yourself or any other person (for example, never reveal passwords, phone numbers, street addresses, credit card numbers, e-mail address, or any information that may be used to track, contact, or impersonate an individual, or which is personal in nature). If there is something you do not want the world to see, do not post it on the Site.
- Use caution when interacting with others. You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct of any user. We have the right, but have no obligation, to monitor or become involved in disputes between you and other users. Please exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
- Don’t damage the Site or anyone’s computers. User Content may not contain viruses, Trojan horses, spyware, or any other technologies that could impact the operation of the Site or any computer system.
In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.
We may monitor, refuse to post, remove, or edit User Content, including product reviews, that we believe contains medical, therapeutic, disease-related, drug-like, false, misleading, unsubstantiated, or otherwise impermissible claims.
18. SWEEPSTAKES, CONTESTS & PROMOTIONS
The Site may contain or offer sweepstakes, contests, or other promotions, which may be governed by a separate set of official rules and have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read the applicable rules to determine whether or not your participation, registration or entry will be valid or restricted and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes, contest, or promotion.
19. THIRD PARTY LINKS, CONTENT AND APPLICATIONS
The Site may provide links to certain websites, services, and features provided by third parties (including third party stores selling OAI’s products). The Site also may include third party content that we do not control, maintain, or endorse. We do not control or make any representations regarding any of these third-party services and websites or any of their content. Accordingly, you expressly acknowledge and agree that we are not responsible or liable for (a) any damages or injuries of any kind arising in connection with the content of linked third-party websites, services, advertisements, or other resources framed within the Site, or (b) your use of any third-party websites or other online features or services. Your use of third-party websites and services is at your own risk and subject to the terms and conditions established by such third parties. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SITE INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.
20. SOCIAL MEDIA FEATURES
You may choose, at your sole and absolute discretion and risk, to use applications that enable interactions between the Site and a third-party website or online service (each, an “Application”), such as linking your profile on the Site with a third-party website or enabling you to “like” a product on the Site or “share” content to other websites. Such Application may interact with, connect to, or gather and/or pull information from and to your Site profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information relating to your Site account, you are consenting to the information about your account being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if OAI has not provided such information; and (iii) your use of an Application is at your own option and risk, and you shall hold OAI harmless for the sharing of information relating to your Site account that results from your use of an Application.
21. LINKING POLICY
OAI grants you the revocable permission to link to the Site; provided, however, that any link to the Site: (a) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (b) must not create the false impression that OAI, any OAI brand, or the Site is endorsing, sponsoring, or affiliated with any third party or its products or services, unless OAI has given the third party prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in OAI’s sole opinion, harm OAI or its products, services, brands, or reputation; (d) must not use any OAI trademarks, service marks, logos, product names, trade names, or other proprietary materials without OAI’s prior written permission; (e) must not contain content that could be construed as distasteful, offensive, controversial, unlawful, or otherwise objectionable, in OAI’s sole opinion; and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms.
Notwithstanding anything to the contrary contained in these Terms, OAI has the right to prohibit linking to the Site for any reason in its sole and absolute discretion.
22. MOBILE SERVICES AND TEXT MESSAGE PROGRAM TERMS
The Site may offer features and services that are available to you via your mobile phone or other mobile device, including the ability to access Site Content, receive order, shipping, account, subscription, back-in-stock, abandoned-cart, customer support, promotional, or other messages by SMS, MMS, text message, push notification, or other mobile communications, and interact with us through mobile messaging features (collectively, “Mobile Services”).
By signing up for or otherwise opting in to any Mobile Services, you agree to these Terms, our Privacy Policy, and any additional terms, disclosures, or instructions presented to you at the time of sign-up. You represent that you are the subscriber to, or customary user of, the mobile telephone number provided and that you are authorized to consent to receive messages at that number.
Depending on the Mobile Services for which you sign up, you may receive recurring text messages from or on behalf of OAI, including transactional, service-related, customer support, and/or promotional or marketing messages. Service-related messages may include order updates, shipping notifications, account alerts, subscription reminders, back-in-stock notifications, abandoned-cart reminders, or other information related to your transactions or use of the Site. Promotional messages may include product news, offers, promotions, events, educational content, or other marketing messages.
Text messages may be sent using an automatic telephone dialing system or other automated technology. Your consent to receive marketing text messages is not required as a condition of purchasing any product or service from us. Your participation in any Mobile Services is voluntary.
We do not charge you for receiving Mobile Services unless otherwise disclosed at the time of sign-up. However, message and data rates may apply. You are responsible for all charges and fees imposed by your wireless carrier or service provider. Message frequency may vary. Please contact your wireless carrier for details regarding your mobile plan.
If required or appropriate, we may ask you to confirm your opt-in by responding to a text message or otherwise verifying your mobile telephone number and your agreement to receive the applicable Mobile Services.
You may opt out of receiving text messages from a particular Mobile Service at any time by replying STOP to the applicable short code or telephone number from which you receive messages, or by following any other opt-out instructions provided in connection with that Mobile Service. After you send STOP, you may receive a one-time confirmation message. If you participate in more than one Mobile Service, you may need to opt out separately from each program, except where applicable law requires otherwise.
For help, reply HELP to the applicable short code or telephone number, or contact us as provided in the “Contact Information” section below.
You agree to provide and maintain a valid mobile telephone number. If you change or deactivate your mobile telephone number, you agree to promptly update your account information or otherwise notify us. We are not responsible for messages sent to an outdated, incorrect, or inactive number if you fail to notify us of a change.
We may modify, suspend, or cancel any Mobile Services, or any features of the Mobile Services, at any time, with or without notice, subject to applicable law. We may also change any short code, telephone number, or other method used to operate the Mobile Services and will provide notice of such changes as required by applicable law. You acknowledge that any messages, including STOP or HELP requests, sent to a short code or telephone number that has been changed may not be received, and we are not responsible for honoring requests sent to an outdated short code or telephone number.
Wireless carriers are not liable for delayed or undelivered messages. To the fullest extent permitted by applicable law, we are not liable for failed, delayed, misdirected, incomplete, or inaccurate delivery of any information sent through the Mobile Services, any errors in such information, or any action you take or do not take in reliance on the Mobile Services.
23. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, SITE CONTENT, SERVICES, AND ALL INFORMATION, MATERIALS, FEATURES, FUNCTIONALITY, AND OTHER CONTENT MADE AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY EXPRESS WRITTEN WARRANTY EXPRESSLY PROVIDED BY OAI WITH RESPECT TO A PRODUCT, THE OAI PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OAI PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE, SITE CONTENT, SERVICES, AND ANY INFORMATION, MATERIALS, FEATURES, FUNCTIONALITY, OR OTHER CONTENT MADE AVAILABLE ON OR THROUGH THE SITE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, RELIABILITY, CURRENCY, AVAILABILITY, SECURITY, SYSTEM INTEGRATION, UNINTERRUPTED OR ERROR-FREE OPERATION, OR FREEDOM FROM VIRUSES, MALWARE, OR OTHER HARMFUL COMPONENTS.
WITHOUT LIMITING THE FOREGOING, THE OAI PARTIES DO NOT REPRESENT OR WARRANT THAT: (A) THE SITE, SITE CONTENT, PRODUCTS, OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE SITE OR ANY FEATURES OR FUNCTIONALITY WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SITE OR THE SERVERS, SYSTEMS, OR TECHNOLOGY THAT MAKE THE SITE AVAILABLE WILL BE FREE OF VIRUSES, MALWARE, OR OTHER HARMFUL COMPONENTS; OR (E) ANY INFORMATION, PRODUCT DESCRIPTIONS, INGREDIENT INFORMATION, IMAGES, RECOMMENDATIONS, RESULTS, OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SITE WILL BE ACCURATE, COMPLETE, CURRENT, RELIABLE, OR ERROR-FREE.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE, SITE CONTENT, AND SERVICES IS AT YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL INTERNET ACCESS, DEVICE HARDWARE, SOFTWARE, AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND FOR ALL CHARGES RELATED THERETO.
PRODUCT INFORMATION, INCLUDING PRODUCT DESCRIPTIONS, INGREDIENT INFORMATION, IMAGES, RECOMMENDATIONS, TIPS, EXPECTED RESULTS, AND OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE SITE, IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE MEDICAL, HEALTHCARE, OR PROFESSIONAL ADVICE. INDIVIDUAL RESULTS MAY VARY. EXCEPT AS EXPRESSLY STATED BY OAI IN WRITING, OAI DOES NOT WARRANT OR GUARANTEE ANY PARTICULAR RESULT OR OUTCOME FROM THE USE OF ANY PRODUCT.
NO ADVICE, INFORMATION, OR STATEMENT, WHETHER ORAL OR WRITTEN, OBTAINED FROM OAI, ANY OAI PARTY, OR THROUGH OR FROM THE SITE, SHALL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY STATED IN THESE TERMS OR IN AN EXPRESS WRITTEN WARRANTY PROVIDED BY OAI WITH RESPECT TO A PRODUCT.
THE OAI PARTIES ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY MATERIALS, USER CONTENT, OR ANY OPINIONS, ADVICE, STATEMENTS, CLAIMS, OFFERS, OR OTHER INFORMATION MADE AVAILABLE BY THIRD PARTIES ON OR THROUGH THE SITE. A POSSIBILITY EXISTS THAT THE SITE OR SITE CONTENT MAY INCLUDE ERRORS, INACCURACIES, OMISSIONS, OR UNAUTHORIZED ALTERATIONS BY THIRD PARTIES. ALTHOUGH WE MAY ATTEMPT TO MAINTAIN THE INTEGRITY OF THE SITE, WE MAKE NO GUARANTEES AS TO THE SITE’S COMPLETENESS, CORRECTNESS, SECURITY, OR AVAILABILITY.
NOTHING IN THESE TERMS DISCLAIMS, EXCLUDES, OR LIMITS ANY WARRANTY, RIGHT, OR REMEDY THAT CANNOT BE DISCLAIMED, EXCLUDED, OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
24. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OAI OR ANY OTHER OAI PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR OTHER ECONOMIC LOSSES, ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE, SITE CONTENT, PRODUCTS, SERVICES, YOUR USE OF OR INABILITY TO USE THE SITE, OR YOUR PURCHASE, USE, MISUSE, OR INABILITY TO USE ANY PRODUCT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF OAI OR ANY OTHER OAI PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE OAI PARTIES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE, SITE CONTENT, PRODUCTS, SERVICES, YOUR USE OF OR INABILITY TO USE THE SITE, OR YOUR PURCHASE, USE, MISUSE, OR INABILITY TO USE ANY PRODUCT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID TO OAI FOR THE SPECIFIC PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE SIX (6) MONTHS BEFORE THE DATE ON WHICH THE CLAIM AROSE; OR (B) ONE HUNDRED U.S. DOLLARS (US $100.00).
THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING TO CLAIMS ARISING FROM OR RELATING TO THE PURCHASE, USE, MISUSE, OR INABILITY TO USE ANY PRODUCT, EXCEPT TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW.
NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, INCLUDING LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, DEATH OR PERSONAL INJURY TO THE EXTENT SUCH LIABILITY MAY NOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, OR ANY STATUTORY RIGHTS OR REMEDIES THAT CANNOT BE WAIVED.
25. INDEMNIFICATION
You agree to defend, indemnify, and hold harmless OAI, its affiliates, and each of their respective officers, directors, employees, agents, representatives, licensors, service providers, successors, and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions, proceedings, investigations, liabilities, damages, losses, judgments, settlements, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of or relating to: (a) your access to or use of the Site, Site Content, Products, or services; (b) your breach or alleged breach or any violationof these Terms or any additional terms, policies, or rules applicable to the Site, Products, or services; (c) your violation of any applicable law, rule, regulation, or order; (d) your violation, infringement, or misappropriation of any intellectual property, privacy, publicity, consumer protection, or other rights of any person or entity; (e) any information, content, materials, Feedback, reviews, communications, or other submissions that you provide, post, transmit, or otherwise make available to us or through the Site; (f) your fraud, misrepresentation, negligence, willful misconduct, or unauthorized conduct; or (g) your use of any automated means, scraping, data mining, crawling, indexing, artificial intelligence tool, or other extraction method in connection with the Site, Site Content, Products, or services.
You agree to cooperate as reasonably requested by the Indemnified Parties in the defense of any claim. The Indemnified Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree not to settle any such matter without the prior written consent of OAI or the applicable Indemnified Party.
26. TERMINATION; SUSPENSION
We may, in our sole discretion, suspend, restrict, block, disable, or terminate your access to or use of your account or the Site, with or without notice and without liability, if we believe that you have violated these Terms, applicable law, or the rights of OAI or any third party, or that your conduct may create risk or potential liability for us, our affiliates, our service providers, other users, or any third party. We may investigate suspected violations of these Terms and may refer any violation to law enforcement authorities. Upon termination of your account or access to the Site for any reason, you will remain responsible for any outstanding payments, charges, orders, subscriptions, obligations, or liabilities incurred before termination. We are not responsible for any loss of data, account information, or content that may occur as a result of suspension, termination, or account closure.
Any provisions of these Terms that by their nature should survive termination will survive, including provisions relating to intellectual property, Feedback, disclaimers, limitation of liability, indemnification, dispute resolution, arbitration, class action and jury trial waivers, governing law, and miscellaneous terms. Termination will not limit any other rights or remedies available to us at law or in equity.
27. LOCATION OF SITE; TERRITORIAL RESTRICTIONS; EXPORT COMPLIANCE
Unless otherwise specified, the Site is presented solely for, and any product information, promotions, and programs are offered only to, residents of the United States.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject OAI to any registration requirement within such jurisdiction or country. You should not construe anything on this Site as a promotion or solicitation for the use of any product or service that is not authorized by the laws and regulations of the country where you are located, including the United States.
OAI controls and operates the Site from offices located in the United States and makes no representations or warranties that any information, Products, or services contained on the Site are appropriate for use or access in other locations.
Software made available through or in connection with the Site, if any, may be subject to U.S. export control and economic sanctions laws. You may not download, access, use, export, re-export, or transfer any such software or related technology in violation of applicable law, including to any person, entity, country, or territory subject to U.S. trade sanctions, embargoes, or other restrictions. You represent and warrant that you are not subject to any such restrictions, including by being identified on the U.S. Treasury Department’s Office of Foreign Assets Control Specially Designated Nationals and Blocked Persons List or the U.S. Commerce Department’s Denied Persons List.
28. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION AND JURY TRIAL WAIVER
PLEASE READ THIS SECTION (“THE ARBITRATION AGREEMENT”) CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR CONSOLIDATED ACTION IN ARBITRATION OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. UNLESS YOU OPT OUT IN ACCORDANCE WITH THE OPT-OUT PROCEDURES DESCRIBED BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT.
A. Mandatory Individual Arbitration.
Any dispute, claim, or controversy between you and OAI or any OAI Party, including but not limited to disputes, claims, or controversies related to or arising from the Site or these Terms, including, without limitation, those relating to the formation, breach, termination, enforcement, interpretation, validity, scope, or applicability of these Terms and the Arbitration Agreement included therein (“Disputes”), whether such Dispute arose before, on, or subsequent to you entering these Terms, and if not resolved through the informal dispute resolution procedure set forth in subsection D below, shall be exclusively resolved by individual, binding arbitration in accordance with this Arbitration Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any Dispute that all or any part of this Arbitration Agreement is void or voidable, and further, that the arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory, in whole or in part, and any defense to arbitration, including waiver, delay, laches, or estoppel.
This Arbitration Agreement applies to all Disputes between you and us, whether arising before or after the date on which you first accepted this Arbitration Agreement, except to the extent prohibited by applicable law. To the fullest extent permitted by applicable law, any Dispute must be filed within one year after the Dispute or cause of action arose, or it will be forever barred; provided that this limitation shall not apply to any claim for which applicable law prohibits shortening the applicable statute of limitations.
Notwithstanding the foregoing and the Class Action/Jury Trial Waiver below, you and OAI each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction in the State of California to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Any legal action by OAI or any OAI Party against a non-consumer or its interactions with governmental and regulatory authorities shall not be subject to arbitration. Either party may also elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.
If you or OAI or any OAI Party files or causes to be filed in court, other than small claims court, a complaint alleging a Dispute that is subject to arbitration under this Arbitration Agreement, the defendant/respondent will notify the party or the party’s attorney, if an attorney has entered an appearance, of the existence of this Arbitration Agreement, and request that the complaint be withdrawn. If the party does not withdraw the action within 10 calendar days of service of that notice, and the defendant/respondent successfully moves to compel arbitration of the Dispute, to the extent permitted by applicable law, the defendant/respondent shall be entitled to its costs and fees, including reasonable attorneys’ fees, incurred in seeking to enforce this Arbitration Agreement.
B. Class Action / Jury Trial Waiver.
You and OAI agree that, to the fullest extent permitted by law, each party is waiving the right to a trial by jury or to participate as a plaintiff, claimant, or class member in any class, collective, private attorney general, representative, or consolidated proceeding, other than the permitted Mass Filing Procedures. This means that you and OAI may not bring a Dispute on behalf of a class or group and may not bring a Dispute on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual Dispute. This also means that you and OAI may not participate in any class, collective, private attorney general, representative, or consolidated proceeding brought by any third party, and any arbitration will be conducted only on an individual basis, other than the permitted Mass Filing Procedures. You and OAI may participate in a class-wide settlement.
C. Arbitration Opt-Out Procedures.
You may opt out of this Arbitration Agreement. To do so, you must email hello@sakurae.us a notice (“Opt-Out Notice”) no later than 30 days after you first agreed to this Arbitration Agreement (“Opt-Out Period”). The Opt-Out Notice must contain your full legal name, your complete mailing and email address and phone number, a clear statement that you wish to opt out of this Arbitration Agreement, and your signature. The Opt-Out Notice must be submitted by you personally, in your individual capacity. Opt-Out Notices submitted by any third party on your behalf, including, without limitation, bulk, aggregated, or group submissions on behalf of multiple individuals, will not be accepted. If your Opt-Out Period has passed, you are not eligible to opt out of this Arbitration Agreement, and you will be bound to this Arbitration Agreement.
If you opt out of this Arbitration Agreement, all other provisions of these Terms will continue to apply to you, including the Non-Arbitral Disputes Governing Law and Mandatory Forum Selection set forth below in subsection F.
If OAI makes any future changes to this Arbitration Agreement, other than a change to the email address or other contact information for notices, or other non-material changes, we will provide you with notice, to the extent we have your contact information. You may reject any such change by sending an email to OAI at hello@sakurae.us within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) the change(s) you are rejecting, and (v) if applicable, the username or email address associated with any purchase from OAI. This is not an opt out of arbitration altogether. Your continued use of the Site after this 30-day period constitutes acknowledgment of, and agreement to, the changes to the Arbitration Agreement.
D. Rules and Governing Law of Arbitration.
Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, in the event of a Dispute, you and OAI each agree to send the other party a written “Notice of Dispute.” A Notice of Dispute from you to OAI must be emailed to both hello@sakurae.us and OAILegal@otsuka-america.com. Any Notice of Dispute must include (i) the claimant’s full legal name, complete mailing address, and email address; (ii) a description of the nature and basis of the Dispute; (iii) any relevant facts regarding claimant’s use of the Site, including whether claimant receives any emails associated with the Site, whether claimant has made a purchase from OAI, and if so, the date(s) of the purchase(s); and (iv) a personally signed statement from the claimant, and not their counsel, verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute. OAI will send any Notice of Dispute to you at the email address or mailing address it has for you, if any.
After receipt of a Notice of Dispute, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days, which can be extended by agreement. You and we agree that, after receipt of the Notice of Dispute, the recipient may request an individualized telephone or video settlement conference, which can be held after the 60-day period, and both parties will attend, with counsel if represented. You and we agree that the parties, and counsel if represented, shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution.
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures subsection is a condition precedent to initiating arbitration. Any applicable limitations period, including statute of limitations, shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and OAI have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, the parties agree that a court of competent jurisdiction may enjoin the filing or stay the prosecution of an arbitration. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures in arbitration.
Mandatory Arbitration Procedures: If the parties cannot resolve the Dispute through the Informal Dispute Resolution Procedures above, you and OAI each agree that all Disputes shall be resolved exclusively through final and binding individual arbitration, rather than in court. The parties may agree to waive hearings and resolve Disputes through the submission of documents. Any arbitration hearing will be conducted remotely by telephone or video conference to the extent possible, but if the arbitrator determines, or the parties agree, that a hearing should be conducted in person, the arbitration hearing shall take place in San Francisco, California, and shall be before one arbitrator.
All Disputes shall be submitted to National Arbitration and Mediation (www.namadr.com) (“NAM”), for arbitration before one arbitrator. The arbitration will be administered by NAM in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and, as applicable, Mass Filing Supplemental Dispute Resolution Rules and Procedures, then in effect (“NAM Rules”), except as modified by this Arbitration Agreement. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in the NAM Rules. You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration, and their counsel if represented. The parties agree that submission of the certification shall be required for the Dispute to be deemed properly filed.
A form for initiating arbitration proceedings is available on NAM’s website at www.namadr.com/resources/rules-fees-forms/. For additional information on how to commence an arbitration proceeding, you can contact NAM at customerservice@namadr.com.
If NAM notifies the parties in writing that it is not available to arbitrate any Dispute, or if NAM is otherwise unable to arbitrate any Dispute, that Dispute shall be submitted to ADR Services, Inc. (www.adrservices.com) (“ADR Services”) for final and binding individual arbitration before one arbitrator. The arbitration will be administered by ADR Services in accordance with the ADR Services rules and procedures then in effect (the “ADR Services Rules”), except as modified by this Arbitration Agreement.
Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), governs the interpretation and enforcement of this Arbitration Agreement and any proceedings under it. The FAA and the NAM Rules or ADR Services Rules, as applicable, shall preempt all state laws to the fullest extent permitted by law. To the extent neither the FAA nor the NAM Rules or ADR Services Rules, as applicable, govern a particular issue, that issue will be governed by the laws of the State of California, without regard to choice or conflict of law principles.
At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and OAI agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b) and any applicable state laws of similar import, including certification that the Dispute or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules or ADR Services Rules, as applicable, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in this Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law.
Mass Filing Procedures: If NAM determines that 25 or more substantially similar arbitration demands presented by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization are allowed to be submitted for arbitration, NAM’s mass filing fee structure shall apply and the parties agree that the arbitrations will proceed in accordance with the batching process as follows: (i) NAM shall administer the arbitration demands in batches of at least 25 demands for arbitration of a substantially similar nature, with the discretion to create additional batches if NAM finds that they are necessary to facilitate the efficient resolution of demands; (ii) NAM shall provide for concurrent resolution of each batch as a single consolidated arbitration with one procedural calendar and one hearing, if any, and one final award; and (iii) following such determination of a mass filing, NAM shall apply a single set of administration and panel preparation fees per batch in accordance with NAM’s fee schedule. All parties agree that arbitrations are of a “substantially similar nature” for purposes of these Mass Filing Procedures if they arise out of or relate to the same or similar event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.
If there are 20 or more substantially similar Disputes that are allowed to be submitted for arbitration but cannot be arbitrated by NAM, and are presented to ADR Services by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization, ADR Services shall administer those Disputes concurrently in accordance with the ADR Services Rules, except as modified by this Arbitration Agreement, and in accordance with the Mass Filing Procedures set forth above, except that batches may be of at least 20 demands for arbitration. ADR Services shall apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in ADR Services’ then-current Mass Consumer Non-Employment Arbitration Fee Schedule.
OAI reserves all rights and defenses as to each and any Dispute, demand for arbitration, and claimant. These Mass Filing Procedures shall in no way be interpreted as authorizing class arbitrations of any kind.
Arbitration Fees: If you do not timely pay any required fees to NAM, or ADR Services as applicable, any refusal by us to pay such fees on your behalf shall not void or otherwise invalidate this Arbitration Agreement, which shall remain in full force and effect. Any disputes over arbitration fees shall be resolved by NAM or ADR Services, as applicable.
Confidentiality: The parties agree that the arbitrator is authorized to issue an order requiring that confidential information of either party disclosed during the arbitration, whether in documents or orally, may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
Requirement of Individualized Relief: Except as otherwise required by applicable law, the parties agree that the arbitrator is authorized, upon either party’s request, to 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 Dispute. Notwithstanding the foregoing, nothing in this Arbitration Agreement shall be construed to waive or limit any non-waivable right to seek public injunctive relief under applicable law. If a court of competent jurisdiction determines that a claim for public injunctive relief cannot be arbitrated and cannot be waived under applicable law, then that claim for public injunctive relief shall be severed and may proceed in court, while all other claims and requests for relief subject to arbitration shall be arbitrated on an individual basis. To the extent permitted by applicable law, any court proceeding regarding public injunctive relief shall be stayed pending completion of the arbitration of all arbitrable claims.
E. Severability & Survival.
If any provision or portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then it shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein. If any claim for public injunctive relief is determined to be non-arbitrable or non-waivable under applicable law, only that claim and only to that extent shall be severed from arbitration, and all remaining claims and requests for relief shall be resolved by individual arbitration.
This Arbitration Agreement shall survive termination of these Terms. Except as provided in subsections A and C above, this Arbitration Agreement shall supersede and replace any and all previous arbitration and class action/jury waiver agreements you may have entered into with OAI or any OAI Party.
F. Non-Arbitral Disputes Governing Law & Mandatory Forum Selection.
If (i) you timely provide a valid Opt-Out Notice as provided above, and you are not bound to any previous or other arbitration agreements with us; or (ii) any Dispute is determined not to be subject to arbitration or resolution; or (iii) any court of competent jurisdiction or arbitrator, after exhaustion of all appeals, determines that the Class Action/Jury Trial Waiver, as provided above, is void or unenforceable for any reason, or that your Dispute can proceed on a class, collective, representative, or consolidated basis other than the Mass Filing Procedures, as provided above; then you and OAI each irrevocably agree that the exclusive jurisdiction and venue with respect to such Dispute shall be the federal or state courts of competent jurisdiction located in San Francisco County, California, and any such Dispute and these Terms shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, without regard to choice or conflict of law principles.
29. ELECTRONIC COMMUNICATIONS AND NOTICES
By using the Site, creating an account, placing an order, enrolling in a subscription, or otherwise providing us with your contact information, you consent to receive agreements, notices, disclosures, records, policies, statements, receipts, confirmations, and other communications from us electronically (collectively, “Notices”). We may provide Notices to you by email, by posting on the Site, through your account, by mobile or push notification, or by other electronic means, subject to applicable law. Mobile messaging programs, including SMS, MMS, text messages, push notifications, and similar mobile communications, are governed by the “Mobile Services and Text Message Program Terms” section above and any additional terms, disclosures, or instructions provided at the time of sign-up.
Notices may include communications regarding these Terms, our Privacy Policy, your account, orders, subscriptions, payments, shipping, product information, policy updates, legal notices, and other transactional, administrative, or service-related matters.
You agree that any Notices we provide to you electronically satisfy any legal requirement that such communications be in writing, to the fullest extent permitted by applicable law. Notices sent by email will be deemed given when sent to the email address you provide to us. Notices posted on the Site will be deemed given when posted, unless a later effective date is stated. Notices provided through your account, by mobile or push notification, or by other electronic means will be deemed given when made available or sent, as applicable.
You are responsible for keeping your contact information current and accurate and for maintaining the hardware, software, internet access, email account, mobile device, and other technology needed to receive and retain electronic Notices. We are not responsible for any failure to receive a Notice if such failure results from your failure to provide or maintain accurate contact information, your email settings, your device or carrier settings, or other circumstances outside our reasonable control.
You may withdraw your consent to receive Notices electronically by contacting us as provided in the “Contact Information” section below. If you withdraw your consent, we may be unable to provide certain features, products, services, accounts, subscriptions, or other benefits of the Site to you, and we may terminate or restrict your access to the Site, your account, or any applicable services, subject to applicable law. Your withdrawal of consent will not affect the legal validity or enforceability of any Notices provided to you electronically before your withdrawal becomes effective.
This Section does not require you to consent to receive marketing text messages, marketing emails, or other promotional communications as a condition of purchasing any product or service from us. Your choices regarding marketing communications are described in our Privacy Policy and, where applicable, in the disclosures presented when you sign up for such communications.
30. INJUNCTIVE RELIEF
Nothing in these Terms limits either party’s right to seek injunctive or other equitable relief to the extent such relief is available under applicable law and not inconsistent with the “Dispute Resolution; Arbitration; Class Action and Jury Trial Waiver” section.
31. CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information.
The provider of the Site is Otsuka America, Inc., located at One Embarcadero Center, Suite 2020, San Francisco, CA 94111, telephone: 833-687-8528.
Current prices for Products available on the Site are displayed on the applicable product pages and/or at checkout. We reserve the right to change prices at any time, subject to applicable law. Purchases are subject to the terms disclosed at checkout and any applicable terms of sale, shipping, return, subscription, or promotional terms.
If you have a question or complaint regarding the Site, Products, or these Terms, please contact us as provided in the “Contact Information” section below. California residents may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, or the Department of Consumer Affairs Consumer Information Center, in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
32. MISCELLANEOUS
Entire Agreement: These Terms, together with our Privacy Policy and any other policies or terms expressly incorporated by reference, constitute the entire legal agreement between you and OAI regarding the Site and govern your use of the Site and any transactions you may have with OAI through the Site. These Terms completely replace and supersede any prior agreement or understanding, arrangement, undertaking, or proposal, written or oral, between you and OAI regarding these matters. In the event any other rule, code of conduct, or other matter posted on the Site conflicts with these Terms, these Terms shall govern. No oral explanation or oral information given by any party shall alter the interpretation of these Terms.
No Agency or Joint Venture: Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, employment, or franchise relationship between you and OAI.
Governing Law: Except as otherwise provided in the “Dispute Resolution; Arbitration; Class Action and Jury Trial Waiver” section, these Terms and all matters relating to the Site shall be governed by the laws of the State of California, without regard to conflict of law principles.
No Waiver: The failure of OAI to insist upon or enforce strict performance of any provision of these Terms or to act with respect to a breach of these Terms by you or others does not constitute a waiver and shall not limit OAI’s rights with respect to such breach or any subsequent breaches. No waiver by OAI of any of these Terms shall be of any force or effect unless made in writing and signed by an authorized OAI corporate officer, nor shall such a waiver be deemed a further or continuing waiver of any of these Terms.
No Modification by Course of Conduct or Trade Practice: Neither the course of conduct between you and OAI, nor trade practice shall act to modify these Terms.
Assignment: OAI may assign its rights and duties under these Terms to anyone at any time without any notice to you. However, you may not assign, transfer, or sublicense these Terms except with the prior written consent of OAI.
Interpretation: Headings and paragraph or section titles are inserted only as a matter of convenience and do not, and shall not be used to, explain any paragraph or provision. These Terms shall not be construed against OAI by virtue of OAI having drafted these Terms.
Severability: Except as otherwise provided in the “Dispute Resolution; Arbitration; Class Action and Jury Trial Waiver” section, if any provision of these Terms is held to be invalid, illegal, void, or unenforceable, that provision will be deemed severed from these Terms to the minimum extent necessary, and the remaining provisions will remain in full force and effect.
33. OUR RIGHT TO UPDATE THESE TERMS
OAI has the right to modify or add to these Terms at any time without prior notice (“Updated Terms”). We may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the home page, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should always review these Terms before using the Site. The Updated Terms shall be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and shall apply to your use of the Site from that point forward. If required by applicable law, we will provide additional notice of, or obtain your consent to, material changes to these Terms, including changes affecting an existing subscription plan, recurring charges, or dispute resolution provisions.
34. CONTACT INFORMATION
If you have any questions, comments, concerns, or complaints regarding the Site or these Terms, please contact us at:
Otsuka America, Inc.
One Embarcadero Center, Suite 2020
San Francisco, CA 94111
Toll Free: 833-687-8528 (Hours: 9:00 a.m. - 6:00 p.m., Pacific Time)
Email: hello@sakurae.us
