Terms of Service
Last Updated: August 10, 2022
BODILY TERMS OF SERVICE
Hello and welcome to the This Matters, Inc. (“Bodily”, “we”, us” or “our”) website located at itsbodily.com (the “Website”). Please read these Terms of Service (these “Terms”) carefully, as they create a legal agreement between you (“you” or “your”) and Bodily establishing the terms and conditions under which you shall access and use any software or services we make available to you on our Website, online store and related applications, including without limitation any mobile applications that we may from time to time make available (collectively, our “Platform”), as well as any offline services we may provide to you (together with any software or services we make available to you on our Platform, our “Services”).
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND BODILY ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT, AND LIMIT CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION (SEE SECTION 17 OF THESE TERMS).
- OUR SERVICES DO NOT PROVIDE ANY MEDICAL ADVICE. Information on our Services is provided for informational purposes only and is not intended as a substitute for the advice provided by your physician or other health-care professional. You should not use the information on our Services for diagnosing or treating a health problem or disease, or prescribing any medication or other treatment. Under no circumstances will we be liable for any loss or damage caused by your reliance on information obtained through our Services.
- We do not recommend or endorse any specific professionals, tests, products, procedures, opinions, or other information that may be mentioned on our Services. Reliance on any information provided by us, our consultants, our employees, and others appearing on our Platform is at your own risk. Our Services are intended for healthy adults only. Users of our Services (“Users”) must be eighteen (18) years or over.
- Use of our Services does not create a professional-client relationship. Information provided on our Services and the use of any products or services purchased from our Services by you does not create a doctor-patient relationship between you and any of the consultants or advisors that may be affiliated with our Services.
- If you have or suspect that you have a medical problem, promptly contact your healthcare provider. Never disregard professional medical advice or delay in seeking professional advice because of information you have received through our Services.
- The information provided through our Services has not been evaluated by the Food and Drug Administration and is not intended to diagnose, treat, cure, or prevent any disease. You should always speak with your physician or other healthcare professional before taking any medication or nutritional or herbal supplement or adopting any treatment for a health problem.
- You should carefully read all product packaging and instructions for any products or services purchased through our Services. In no event will our acceptance of a returned product or payment or compensation to you, regardless of amount, evidence assumption of liability by us or our affiliates of any negligence or claim or future claim that may be brought in connection with such product or related products.
Acceptance of Terms.
- PLEASE REVIEW THESE TERMS BEFORE USING OUR SERVICES, AS THEY MAY HAVE CHANGED SINCE YOUR LAST VISIT. IF YOU ARE VIEWING THIS ON YOUR MOBILE DEVICE, YOU CAN ALSO VIEW THESE TERMS VIA A WEB BROWSER AT HTTPS://WWW.ITSBODILY.COM/PAGES/TERMS-CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT USE OUR SERVICES, INCLUDING OUR WEBSITE. BY USING OUR SERVICES, INCLUDING OUR WEBSITE, YOU REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OF AGE.
- Bodily may make modifications, deletions and/or additions to these Terms (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Bodily provides notice of the Changes, whether such notice is provided through the Services user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of these Terms incorporating the Changes, whichever comes first.
- By creating an account with Bodily or signing up to receive updates, you agree to receive emails or push notifications from us regarding our Services. We may from time to time send you push notifications or email messages with information about your use of our Services. You may opt-out from receiving any such correspondence by emailing firstname.lastname@example.org or selecting to unsubscribe as may be provided in the applicable correspondence.
Purchase of Products. Subject to the terms and conditions hereof, you may purchase products from us in our online store available through our Platform and operated through Shopify (our “Store” and, such products, our “Products”). All Products, prices and specifications described on our Services are subject to change at any time without notice. You agree that all Product purchases must be only for your personal use, and not for resale. We may cancel any Product order if we, in our sole discretion, believe that the Product(s) subject to such order may be being purchased for any purpose other than personal use.
- Order Acceptance and Cancellation. You agree that your order to purchase our Products in our Store is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
- Prices. Prices posted on our Platform may be different than prices offered at other retailers. All prices, discounts, and promotions posted on our Platform are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total, and will be itemized in your shopping cart and in your order confirmation email.
- Billing and Payment Policy. When you purchase a Product and make a payment over our Services (each such purchase, a “Transaction”), you expressly authorize us or our third-party payment processor to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification, as well as certain information that may be needed to verify your identity (collectively, “Payment Information”). When you initiate a Transaction, you authorize us to provide your Payment Information to third parties to complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on our Services at the time of your order.
- Shipments; Delivery; Title and Risk of Loss. Products will be shipped to the address you designate as the shipping address during the check-out process. Shipping restrictions apply (please visit https://itsbodily.com/pages/faqs for more information). You will pay all shipping and handling charges specified during the ordering process. Bodily will not be liable for packages refused or held for delivery. Please note that refunds will not be issued for any order that is refused or abandoned by the intended recipient or orders that cannot be delivered due to an address error. Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
- Returns. You may return Products that you purchase in our Store in accordance with Bodily’s return policy available on the Website (please visit https://itsbodily.com/pages/faqs for more information). Bodily may, in its sole discretion, accept a returned Product and provide compensation therewith.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Bodily Account. In order to use some functionality of our Services, you will be required to create an account (an “Account”) by providing certain information. In connection with your Account registration, we may ask you to complete a registration form and create a user name and password (“Login Credentials”). During any such registration, you are required to give truthful contact information (such as name and email address) in accordance with these Terms and you are responsible for keeping your registration information up to date. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your Account (including, without limitation, financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials. We may enable you to login using a third party social networking or other internet service, in which event these terms shall remain binding. You agree not to use false or misleading information in connection with your Account or impersonate any other person living or dead. We reserve the right to disable any Account with a profile that we reasonably believe is false or misleading, including impersonating a third party.
- Gift Cards. Bodily Gift Cards (“Gift Cards”) may only be redeemed toward the purchase of eligible Products in our Store. Eligible Products are subject to change in our sole discretion. Gift Cards cannot be replaced if lost or stolen. We are not responsible for unauthorized card use. Gift Cards cannot be reloaded, resold, used for payment outside of our Store, used for unauthorized advertising, marketing, sweepstakes, promotional or commercial purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law). Gift Cards cannot be combined with any other Gift Cards or other coupons. Gift Cards cannot be used as a credit or debit card. Gift Cards have no expiration dates; however, certain states treat gift cards that have been unused for a certain period of time as abandoned property subject to escheat. You may not purchase a Gift Card from an unauthorized third party or use a gift card for any illegal or unauthorized purpose. We reserve the right to cancel a Gift Card if we believe the Gift Card was obtained through fraudulent or unauthorized means.
- Offer Codes. From time to time, we may offer promotional or offer codes that are redeemable towards a purchase of Products in our Store, subject to such expiration dates, minimum purchase orders, Product exclusions and any other restrictions as may be determined and communicated by us in our sole discretion (“Offer Codes”). Only valid Offer Codes provided by us will be honored. Each Offer Code (i) is non-transferable, (ii) is non-retroactive, (iii) is valid for one single purchase on our Services and (iv) cannot be redeemed for cash or any cash equivalent. We are not responsible for any unauthorized use of Offer Codes. The monetary value of the Offer Code will not be refunded or credited back if the Product purchased using the Offer Code is returned. Offer Codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. We may engage spokespeople, influencers or other individuals or entities who have been compensated or incentivized to speak on behalf of our brand. If you receive an Offer Code from a third-party source, note that such individual may have been compensated by us for his or her statements.
- Referral Program. We may provide you referral credits, which may entitle you certain benefits as determined by us in our sole discretion ("Referral Credits"), when you invite your friends to make a qualifying order in our Store ("Credit-Eligible Orders") using your applicable referral code (the “Referral Program”). Referral Credits may be awarded to you when your friends make their first such purchase using the referral code we provide to you. Referral Credits are loyalty or promotional discounts and do not constitute an account, a payment instrument or other property owned by any User. Referral codes are granted in our sole discretion and are void where prohibited. Any person that receives credits, coupons, prizes or other benefits from us by posting to coupon sites, comment sections on third-party sites, using multiple user accounts or email addresses, using false names, impersonating others or through the use of any other fraudulent or misleading conduct as determined by us, shall forfeit any such credits, coupons, prizes or benefits, and may be liable for civil and/or criminal penalties under applicable law. We reserve the right to deactivate your referral code or cancel the Referral Program at any time in our sole discretion. Any unclaimed referral rewards will be forfeited at that time. Any distribution of your referral code that could constitute unsolicited commercial email or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for your immediate exclusion from the Referral Program.
- Purchase of Products. Subject to the terms and conditions hereof, you may purchase products from us in our online store available through our Platform and operated through Shopify (our “Store” and, such products, our “Products”). All Products, prices and specifications described on our Services are subject to change at any time without notice. You agree that all Product purchases must be only for your personal use, and not for resale. We may cancel any Product order if we, in our sole discretion, believe that the Product(s) subject to such order may be being purchased for any purpose other than personal use.
- Subject to these Terms and any other agreement between you and us, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use any application we may offer on a compatible mobile device for your personal, non-commercial purposes and use of our Services, in each case, solely in the manner enabled by us.
- Your license to use our Services is automatically revoked if you violate these Terms. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to all such upgrades or improvements. The foregoing license grant is not a sale of any mobile application we may provide or the Website or a sale of a copy of any such application or our Website, and we retain all rights and interest in our Services. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms.
- You acknowledge that our Services use the Internet for data transfer and Internet-connected servers to store Content and Individual Data (as defined below). While we use commercially reasonable security measures for such servers, no security measures are 100% effective and Internet communications may have inherent insecurities. As such, we do not make any representation or warranty regarding the security offered in respect of our Services.
Bodily Content; Uploaded Content; Individual Data.
- Our Content Subject to these Terms and any other agreement between you and us, we hereby grant you a limited, personal, non-transferable, non-exclusive, non-sublicensable, revocable license to access and view Content (as defined below) that we make available through our Services, solely for your personal and non-commercial use, and subject to any restrictions on certain types of Content set forth in these Terms. The foregoing license authorizes access and viewing of Content solely through the means we make available (e.g., a website). You understand that the Content that is posted on our Services is used by you at your own risk. As used herein “Content” means text content, notifications, emails, videos, images and audio, any other content or any combination thereof, in each case, that we make publicly available or which we permit you to access, whether created by us, you or a third party.
- Changes to Content. We reserve the right to make changes to Content, descriptions or specifications of our Services, or other information without obligation to issue any notice of such changes.
- No Implied Licenses. Nothing contained on our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use our Services or any Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of the third party that may own the trademark or copyright of material displayed on our Services.
- Rights in User Content Granted by You. You hereby grant to us a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid up license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, publicly display and otherwise use your User Content (as defined below), and you understand that we may allow any third party to use your User Content as well. You will own your Individual Data (as defined below). You hereby grant us a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid up license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, publicly display and otherwise use any Individual Data, and you understand that we may allow any third party to use such Individual Data as well. As used herein, “User Content” means any Content that Users provide to be made available through the Bodily Platform, and “Individual Data” means any data that relates to any User’s use of our Services.
- Your Responsibility for User Content. You are solely responsible for all of your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through our Services, nor any use of your User Content by Bodily on or through our Services, will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- Sponsored Content. From time to time, we may make available through our Services Content that is sponsored by third parties.
Your Use; Prohibited Conduct.
- As a condition of your use of our Services, you will not use our Services for any purpose that is unlawful or prohibited by these Terms. You agree to comply with any other applicable terms and conditions of use set forth on our Services.
- You may not use our Services in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of our Services. You may not obtain or attempt to obtain any information through any means not intentionally made available through our Services. In the event that you gain access to information not intended to be accessed by you, you agree that you will immediately notify us and destroy all copies of such information in your possession.
- You agree not, and will not permit any person or entity, to: (i) use, or allow the use of, our Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign or other applicable law or rules and regulations of regulatory or administrative organizations; (ii) act in a fraudulent, tortious, malicious or negligent manner when using our Services; (iii) obtain unauthorized access to any computer system through our Services; (iv) circumvent, remove or otherwise interfere with any security-related features of our Services, features that prevent copying or using any part of our Services or features that enforce limitations on the use of our Services or any Content; (v) introduce viruses, worms, Trojan horses and/or harmful code to our Services; and (vi) use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index any portion of our Services or any Content.
- In addition, you agree that you will not, and will not authorize or facilitate any attempt by another person or organization to use our Services to: (i) transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by us; (ii) use a name or language that we, in our sole discretion, deem offensive; (iii) post defamatory statements; (iv) post hateful or offensive Content or Content that disparages any ethnic, racial, sexual, gender, religious or other group; (v) post Content that depicts or advocates the use of illegal drugs; (vi) post Content that characterizes violence as acceptable, glamorous or desirable; (vii) post Content which infringes another’s copyright, trademark or trade secret; (viii) post unsolicited advertising or unlawfully promote products or services; (ix) harass, threaten, bully, stalk or intentionally embarrass or cause distress to another person or entity; (x) promote, solicit or participate in any multi-level marketing or pyramid schemes; (xi) exploit children under 18 years of age; (xii) engage in disruptive activity, such as sending multiple messages in an effort to monopolize a forum; (xiii) invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age); (xiv) solicit personal information from children under 13 years of age; (xv) create a false identity or impersonate another person or entity; or (xvi) encourage conduct that would constitute a criminal or civil offense. The restrictions in this Section 6(d) are intended to be illustrative, and we reserve the right to consider other conduct to be prohibited. In addition, you will not post any content to any of our social media accounts that is any of items (i)-(xvi) above.
- We reserve the right, without prior notice and in our sole discretion, to decide whether your use of our Services violates these Terms for any of the above reasons or for any other reason, and if we do so, we may terminate your access to our Services.
- Indemnification. By using our Services, you hereby agree to indemnify and hold harmless us and our officers, directors, employees and agents from any claims, damages, losses, liabilities, and all costs and expenses of defense (collectively, “Claims”), including without limitation attorneys' fees, resulting directly or indirectly from a claim by a third party that arises in connection with (i) your provision of any Content, (ii) your use of our Services and/or (iii) any user or other third party’s use of any Content that you submit via our Services. At our option, you agree to defend us from any Claims.
- Intellectual Property Rights. You agree and acknowledge that the structure, organization and code used in conjunction with our Services are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use our Services on a service bureau, time sharing or any similar basis, or otherwise for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of our Services or any Content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from our Services. You shall not sell, transfer, publish, disclose, display or otherwise make available our Services including any modifications, enhancements, derivatives and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms. Unless otherwise noted, all Content contained on our Services is the property of us and/or our affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners. No rights or licenses of any kind are granted to you to use any trademarks or logos contained on the Services.
- Copyright Infringement; DMCA Policy. If you believe that any materials on our Services infringe your copyright, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work; (2) identification of the material that you believe to be infringing, including a description of the material, and its location on our Website; (3) your name, address, telephone number and email address; (4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law; (5) a statement by you under penalty of perjury that the information in your claim is accurate and that you are the lawful copyright owner or are authorized to act on the owner’s behalf; and (6) your electronic or physical signature. Our agent for copyright issues relating to our Services is Copyright Agent, [physical address] or [email address]. To protect the rights of copyright owners, we reserve the right to suspend your Account and/or other any user privileges, delete or disable content alleged to be infringing and/or terminate the Account and/or other user privileges of a repeat infringer.
- Unsolicited Ideas and Feedback. We welcome your feedback, ideas and suggestions (collectively, “Suggestions”). If you send us any Suggestions, you agree that: (1) your Suggestion(s) become our property and you are not owed any compensation in exchange; (2) none of the Suggestion(s) contain confidential or proprietary information of any third party; (3) we may use or redistribute Suggestion(s) for any purpose and in any way; (4) there is no obligation for us to review your Suggestion(s); and (5) we have no obligation to keep any Suggestions confidential.
- Providers of Third Party Platforms. You hereby acknowledge and agree that all of our licensors, suppliers or other third parties: (i) are not parties to these Terms; (ii) have no obligation whatsoever to furnish any maintenance or support services with respect to Bodily; (iii) are not responsible for addressing claims by you or any third party relating to our Services, including without limitation any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; and (iv) have no responsibility to investigate, defend, settle or discharge any claim that our Services or use thereof infringes any third party intellectual property rights.
- OUR SERVICES AND ALL CONTENT ON OR ACCESSIBLE FROM OUR SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH OUR SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING WITHOUT LIMITATION MECHANISMS FOR THE DOWNLOADING AND TRANSMITTING CONTENT) PROVIDED BY OUR SERVICES WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THAT OUR SERVERS OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
- Under no circumstances will we be liable for any loss or damage caused by failed delivery or receipt of Content or any third party’s use or distribution of Content. You hereby acknowledge and agree that Bodily merely stores and hosts User Content but does not actively create User Content. Under no circumstances will Bodily be liable for any claims that may arise from User Content, including without limitation claims for intellectual property infringement.
Limitation of Liability.
- IN NO EVENT SHALL WE BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, THIRD PARTY PROVIDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF OUR SERVICES, YOUR CONTACT INFORMATION, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM THESE TERMS SHALL NOT EXCEED THE GREATEST OF (I) $100.00; OR (II) THE AGGREGATE AMOUNT YOU HAVE PAID TO US FOR THE PURCHASE OF PRODUCTS THROUGH OUR STORE, LESS ANY RETURNS, SHIPPING AND OTHER FEES, IF ANY, IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
- Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Governing Law; Dispute Resolutions. These Terms, and any dispute between you and us, shall be governed by the laws of the state of New York without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 17 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of New York except that you or we are permitted (1) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (2) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (3) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
Agreement to Arbitrate; Waiver of Class Action.
- Opt-out. You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: This Matters, Inc. ATTN: Arbitration Out-Out, 53 Bridge St, Unit 601, Brooklyn, New York 11201.
- Effect of Changes on Arbitration. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Website, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.
- Survival. This Section 17 will survive the termination of your relationship with us.
Scope of Service; Modifying and Terminating Service.
- Our Services may periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer with Internet access that can access our Website or a compatible mobile device enabled with any mobile application we may provide.
- When using our Services, your telecommunications carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your telecommunications carrier as a result of use of our Services. You are responsible for ensuring that, at all times while using our Services, you are not in violation of your agreement with your telecommunications carrier.
- We may terminate your access to our Services, in our sole discretion, for any reason and at any time. You agree that we are not liable to you or any third party for any termination of your access to our Services. We may change and update our Services from time to time. We may add or remove features including without limitation making free Services into paid Services and vice versa. We will give you appropriate advance notice on our Website about any major changes, although you understand that we may stop, suspend or change our Services at any time without prior notice.
- You may terminate these Terms at any time by ceasing to use our Services or by closing your account. On our Services, we will include instructions for how to close your Account. We may update these instructions and our process to close your Account from time to time. Please follow the instructions on our Services to close your account if you would like to do so.
- The following Sections of these Terms and any accrued obligations will survive any termination of these Terms: 1, 2.c., 3.a., 3.c., 3.d., 3.e, 4.b, 4.c., 4.d, 5.b through 5.f. and 6 through 19.
- General Terms.
- Waiver of Rights. Bodily’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Bodily.
- Minors. Our Services are available only to, and may only be used by, individuals who are 18 years and older and who can form legally binding contracts under applicable law. If you are a parent or guardian and you discover that your child has created an unauthorized Account on our Services, please contact us at email@example.com and we will remove the Account.
- For Additional Information. If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
- User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method, you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
- User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Bodily and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of digital and physical products, services, and events. Messages may include checkout reminders.
- Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
- Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
- Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
- Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
- Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
- Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Brooklyn, NY before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which This Matters, Inc.’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
- State Law:
- Florida: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
- Washington: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the commercial telephone solicitation requirements pursuant to the Revised Code of Washington (RCW) (including but not limited to sections 80.36.390, 19.158.040, 19.158.110 and 19.158) as applicable to Washington residents. For purposes of compliance, you agree that we may assume that you are a Washington resident if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is a Washington area code.
- Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.