_Last Updated: July 28, 2019_
Holier Inc. d/b/a Holier (“Holier,” “we,” “us,” or “our”) welcomes you. We’re really excited that you have decided to access and use our online services (the “Services”), which are made available to you through our website located at www.holierlife.com (the “Website”).
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE.
We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms. If we make any material changes, we will notify you by email (sent to the email address specified in your account) prior to the changes becoming effective.
2. NO MEDICAL ADVICE
You acknowledge and agree that Holier does not provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that Holier does not evaluate the need to seek medical attention, through the Website and the Services. The Website, the Services and the Content (as defined below) are for informational purposes only, and are not intended as a substitute for professional medical advice, diagnosis, or treatment. You should not use the information on the Website for diagnosing or treating a health problem or disease, or prescribing any medication or other treatment. Always seek the advice of your physician or other qualified health provider before taking any medication or nutritional supplement and with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Website, the Services and/or the Content. If you think you may have a medical emergency, call your doctor or 911 immediately. Reliance on the Website, the Services and the Content is solely at your own risk. Information provided on the Website and the use of any products or services purchased from our Website by you does not create a doctor-patient relationship between you and any of the health professionals affiliated with our Website.
Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease.
3. DESCRIPTION AND USE OF THE WEBSITE
Holier is a brand providing essentials for the modern vegan. Through our Website we offer a variety of products and services, including our unique subscription service, which gives you the option for monthly deliveries of multivitamins directly to your door (“Subscription”). We provide Visitors and Customers with access to our Website as described in this Agreement. “Visitors,” as the term implies, are people who do not register for as Customers with Holier, but may visit the Website to view all publicly-accessible Content, and to purchase products and Subscriptions without registering as customers. “Customers” are people who choose to register with Holier in order to view all publicly-accessible Content on the Website, purchase products and/or a Subscription, manage their Subscription online, and take advantage of other promotions and offerings that we may provide to Customers. Customers are required to register and with us and create a username and password (“Login Credentials”). We are under no obligation to accept any individual as a Customer, and may accept or reject any registration in our sole and complete discretion.
Subject to the terms of this Agreement, we grant Visitors and Customers a personal, limited, non-transferable, non-exclusive license to access and use the Website. We reserve the right, in our sole discretion and without notice to you, to revise the products and services available on the Website and to change, suspend or discontinue any aspect of the Website and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Website or restrict your access to part, or all, of the Website without notice or penalty. Your continued use of the Website will constitute your acceptance of any such changes.
You may use the Website only for your own noncommercial personal use and in compliance with this Agreement. Any other use of the Website or Services requires the prior written consent of Holier.
4. ACCESS TO SERVICES AND REGISTRATION
By accessing the Services, you warrant that:
- You are legally capable of entering into binding contracts;
- All registration information you submit is truthful and accurate;
- You will maintain the accuracy of such information; and
- Your use of the Services does not violate any applicable law or regulation.
5. TRANSACTIONS AND SHIPPING
All descriptions, images, references, features, content, specifications, products, and prices of products and Services described or depicted on the Website are subject to change at any time without notice. From time to time, there may be information on the Website that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, product prices, promotions, offers, and availability. Holier reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders, if any information on the Website is inaccurate at any time without prior notice, even after you have received an order confirmation or shipping notification. The inclusion of any products or services on the Website does not imply or warrant that these products or Services will be available. Holier reserves the right to revise our product offerings and/or discontinue products at any time without notice to you. We also reserve the right to limit quantities purchased by Customers and to revise, suspend, or terminate an event or promotion at any time without notice (including after an order has been submitted or acknowledged).
All pricing on the Website is subject to change without notice. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from this Website. By placing an order, you represent that the products ordered will be used only in a lawful manner, and that you are purchasing the products for personal use only and not for resale. Holier reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion in compliance with applicable law; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service.
You agree that by placing an order on the Website, you are entering into a binding contract with Holier and agree to pay all charges that may be incurred by you or on your behalf through the Website, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any taxes that may be applicable to your Transactions. Your total price will include the price of the product plus any applicable sales tax; such state and local sales tax is based on the shipping address and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states where the goods sold over the internet are taxable. Shipping is only available to addresses within the United States.
Once an order is placed on the Website, you may cancel it any time before such order is shipped. In the case of a Subscription, you may cancel your Subscription in accordance with Section 5 below. Once an order has shipped, it cannot be canceled. All sales are final and may not be returned.
Holier uses reliable third-party carriers such as USPS to deliver our products to you. All posted delivery times are approximations and actual delivery times may vary. Holier shall not be liable for any damages (including, without limitation, any incidental or consequential damages) arising from its failure to deliver or delay in delivering products purchased through the Website. Further, Holier shall not be responsible in the event that purchased products are unable to be delivered to you due to an incorrect shipping address, your failure or refusal to accept delivery, or for any other reason. If shipments are returned to us, we will attempt to contact you to arrange for re-delivery, and we reserve the right to impose additional shipping costs at our sole discretion.
Notwithstanding the foregoing, Holier does not guarantee that we will store or reship products to you once they are returned to our warehouse. Title and risk of loss to the products will pass to you upon our delivery of such products to the shipping carrier.
6. SUBSCRIPTION FEES, AUTOMATIC RENEWALS AND CANCELLATIONS
Through our Services, we offer Multivitamins for Vegans that we deliver on a monthly subscription basis (“Subscription”). By signing up for a Subscription, you agree to pay all applicable Subscription fees made known to you when you order your Subscription (“Subscription Fees”). We may use a third-party payment processor (“Third-Party Payment Vendor”) to process your payment of Subscription Fees. You warrant and represent that you are the valid owner or an authorized user, of the credit card or other payment card to such Third Party Payment Vendor, and that all information you provide is accurate.
It is important to note that when you sign up to use the Services, your Subscription will automatically renew (“Automatic Renewals”) until you cancel it. You may cancel at any time by notifying us in writing no later than five (5) business days before your next package is shipped, and the cancellation will take effect for the following month. Before the end of each month, we will send you a reminder e-mail informing you that your next Subscription is ready to ship. Again, if you do not cancel, then your next Subscription will ship and applicable Subscription Fees will be charged to your credit card.
Your right to use the Service or a specific product is conditional upon our receipt of payment of Subscription Fees. If payment cannot be charged to your credit card or if a charge is refunded for any reason, we reserve the right to immediately either suspend or terminate your access and account, thereby terminating this Agreement and all our obligations hereunder. We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.
Customers may cancel their Subscriptions at any time by logging into their accounts and following the cancellation procedures, or by emailing us at email@example.com.
Holier reserves the right to change or discontinue a Subscription at our discretion. We may make these changes at any time, with or without notice. Your continued participation in a Subscription will constitute your acceptance of this Agreement including the Automatic Renewal provisions above.
7. INTELLECTUAL PROPERTY
The Website and the Services contain materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Holier (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Holier (“Holier Trademarks”) used and displayed on the Website and the Services are registered and unregistered trademarks or service marks of Holier. Other company, product, and service names located on the Website and the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with the Holier Trademarks, the “Trademarks”). Nothing on the Website and the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Holier Trademarks inures to our benefit.
Elements of the Website and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
8. COMMUNITY GUIDELINES
Holier’s community functions best when Customers and Visitors follow a few simple rules. By accessing or using the Website, you hereby agree to comply with these community rules and that:
- You will not use the Website for any unlawful purpose or in violation of this Agreement;
- You will not express or imply that any statements you make are endorsed by Holier;
- You will not use the Website or any services offered by Holier to engage in any commercial activities, including, without limitation, advertising or promoting a product, service, or company;
- You will not upload, post, email, transmit, or otherwise make available any User Content (as defined below) that:
- infringes on any intellectual property, publicity or privacy right of another person or entity;
- is untrue, inaccurate, deceptive, misleading, or deceitful;
- is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
- discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information;
- You will not access or use the Website to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not use the Website to drop ship merchandise to third parties;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not attempt to interfere in any way with the Website, or Holier’s network security, or attempt to use the Website’s service to gain unauthorized access to any other computer system, data, files, or passwords;
- You will not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute Content or data available on the Website, and, further, you will not use any such automated means to manipulate the Website, such as automating what are otherwise manual or one-off procedures;
- You will not take any action to interfere with, or disrupt, the Website or any other user’s use of the Website, including, without limitation, via means of overloading, “flooding,” “mailbombing” or “crashing” the Website, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under this Agreement;
- You will not frame portions of the Website within another website;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Website;
- You will not resell use of, or access to, the Website to any third party; and
- You will not otherwise take any action in violation of these Terms.
If you find something that violates our community guidelines, please let us know, and we will review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Website or the services offered through the Website, or any portion thereof, without notice, and to remove any User Content that does not adhere to this Agreement.
9. COMMUNICATIONS TO US
Although we encourage you to email us, we do not want you to, and you should not, email us any content that contains confidential information. With respect to all emails you send us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
10. USER CONTENT
As noted above, we may provide users the ability to post and upload content including text, videos, and photos (“User Content”) to the Website. You expressly acknowledge and agree that once you submit User Content, it will be accessible by other Visitors and Customers, and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make publicly available. YOU, AND NOT HOLIER, ARE ENTIRELY RESPONSIBLE FOR ALL USER CONTENT THAT YOU UPLOAD, POST, EMAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITE.
You retain all copyrights and other intellectual property rights in and to your own User Content. By submitting or posting any such User Content, you hereby grant Holier a perpetual, irrevocable, non-terminable, worldwide, royalty-free, non-exclusive, freely sublicensable (through multiple tiers) license to use, copy, distribute, publicly display, modify, create derivative works, compile, combine with other content, record, transmit, translate, format, and otherwise exploit (including for profit) any and all of your User Content, and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, without compensation or attribution to you. You hereby represent, warrant and covenant that any User Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant Holier the license specified above. You further represent, warrant and covenant that any User Content you provide is your original creation (or that you otherwise have the right to provide the User Content) and that it and its use by Holier and our content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property, privacy, publicity, or moral rights of any person or contain any libelous, defamatory, or otherwise unlawful, abusive or obscene material, or any content that violates our community guidelines set forth above.
We reserve the right to remove, or not to post, your User Content if it violates this Agreement including our community guidelines. By way of example, and not as a limitation, you agree that when contributing content, you will not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Use obscenities, discriminatory language, or other language not suitable for a public forum;
- Post advertisements, “spam” content, or references to other products, offers, or websites;
- Post email addresses, URLs, phone numbers, physical addresses or other forms of contact information;
- Post unduly critical or spiteful comments of other content posted on the page or its authors;
- Post files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have expressly received all necessary consents;
- Post files or content that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; or
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, or impersonate any person or entity or falsely state or misrepresent your affiliation with any person or entity.
In addition, if you wish to share feedback with us about product selection, pricing, ordering, delivery or other customer service issues, please do not submit this feedback through User Content. Instead, contact us directly via email at firstname.lastname@example.org.
11. EXTERNAL LINKS
The Website may contain links to third-party websites. Holier makes no warranties of any kind regarding any such external websites (“External Websites”) to which you may be directed or hyperlinked from this Website. Hyperlinks are included solely for your convenience, and Holier makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such third-party websites. Holier does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Website. You should contact the site administrator or webmaster for those third-party websites if you have any concerns regarding such links or any content located on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
12. AVAILABILITY OF SERVICES
Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in our Services, please report it to us at email@example.com and we will review your complaint and, where we determine it appropriate to do so, correct the fault. We will not be liable to you if the Services are unavailable from time to time.
Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can.
13. WEBSITE NOT FOR MINORS
We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and who can form legally binding contracts with us to use the Services. Individuals under the age of 18, or the applicable age of majority, (“Minors”) may utilize the Services only with the consent and support of a parent, legal guardian or other qualified adult. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. If you are a Minor and do not have the requisite parent or guardian consent, please do not attempt to access or use the Services.
You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree to indemnify, defend and hold harmless Holier, its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement, or any activity related to use of the Website (including negligent or wrongful conduct) by you or any other person accessing the Website using your Internet account, or your ability or inability to use the Website and Services, including any products purchased thereon.
16. NO WARRANTIES/LIMITATION OF LIABILITY
THE WEBSITE, THE PRODUCTS, THE CONTENT, THE USER CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES, OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE WEBSITE AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITE AND THE SERVICES AT ANY TIME WITHOUT NOTICE.
WE RESERVE THE RIGHT TO CANCEL OR MODIFY AN ORDER WHERE IT APPEARS THAT A CUSTOMER HAS ENGAGED IN FRAUDULENT OR INAPPROPRIATE ACTIVITY OR UNDER OTHER CIRCUMSTANCES WHERE IT APPEARS THAT THE ORDER CONTAINS OR RESULTED FROM A MISTAKE OR ERROR.
YOU SHOULD ALWAYS CONSULT YOUR PHYSICIAN OR MEDICAL ADVISORS BEFORE STARTING ANY DIET, EXERCISE, OR SUPPLEMENTATION PROGRAM. IN ADDITION, YOU SHOULD CAREFULLY READ ALL INFORMATION PROVIDED BY THE MANUFACTURERS OF THE PRODUCTS OR IN THE PRODUCT PACKAGING AND LABELS BEFORE USING ANY PRODUCT PURCHASED FROM OUR WEBSITES. INFORMATION PROVIDED ON THE WEBSITE AND THE USE OF ANY SERVICES PURCHASED FROM OUR WEBSITE BY YOU DOES NOT CONSTITUTE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ANY OF THE HEALTH PROFESSIONALS AFFILIATED WITH OUR WEBSITES. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE.
17. WAIVER AND REMEDIES
18. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms shall be exclusively submitted to the state or federal courts of Kings County, New York, unless a party opts for binding arbitration in accordance with Section 22 below, and venue of the state and federal courts of Kings County, New York.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
20. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
21. DIGITAL MILLENNIUM COPYRIGHT ACT
Holier respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or User Content deemed to have been posted or distributed in violaftion of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
442 Lorimer Street
Brooklyn, NY 11206
If you believe that your work has been copied on the Website and/or the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website and/or the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
22. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s 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. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Kings County, New York. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Holier from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Holier’s proprietary interests.
23. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS CUSTOMER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
24. FORCE MAJEURE
We take our commitment to customers seriously, and we’ll do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including—without limitation—mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.
You release Holier and our successors from all losses, damages, rights, and demands and actions of any kind, including personal injuries, death, and property damage, that are directly or indirectly related to or arise from your use of the Services (collectively, “Claims”). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor.” This release does not apply to any Claims for unconscionable commercial practice by the Company or fraud, deception, false, promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services.
26. CONTACT INFORMATION