Terms of Use
EQWELLIBRIUM®, LLC Terms of Use
Last Updated Date: February 22, 2022
These Terms of Use are entered into by and between you and EQWELLIBRIUM® (“we” or “us”). These Terms of Use, together with our Privacy Notice, set forth the terms and conditions (collectively, “Terms”) that apply to your access and use of our website, located at https://eqwellibrium.com/, and our branded pages on social media services, (collectively, the “Site”). We may at times ask you to review and accept supplemental terms that apply to your interaction with a specific product or service.
By using or accessing the Site you agree to these Terms, as updated from time to time in accordance with Section 9 below. If you do not want to agree to these Terms, you must not access or use the Site.
These Terms state that any disputes between you and us must be resolved in small claims court.
1. Acceptance. To use the Site you must (i) be at least eighteen (18) years of age, or, if you are under 18 years of age but are at least 13 years old, you must use the Site with the consent of your parent or legal guardian; (ii) have not previously been suspended or removed from the Site; and (iii) use the Site in compliance with any and all applicable laws and regulations.
2. Account Registration. To access some features of the Site, you may be required to register for an account. When you register for an account, we may ask you to give us certain identifying information about yourself, including your email address and other contact and billing information, and to create a user name and password (“Registration Information”). When registering for and maintaining an account, you agree to provide true, accurate, and current information about yourself. You also agree not to impersonate anyone, misrepresent any affiliation with anyone, use false information, or otherwise conceal your identity from us for any purpose.
You are solely responsible for maintaining the confidentiality and security of your password and other Registration Information. For your protection and the protection of other users, we ask you not to share your Registration Information with anyone else. If you do share this information with anyone, we will consider their activities to have been authorized by you. If you have reason to believe that your account is no longer secure, you must immediately notify us at support@eqwellibrium.com.
As further described in Section 8, we have the right to disable any account, user name, password, or other identifier, whether chosen by you or provided by us, at any time, in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
3. Prohibited Conduct. You agree not to:
A. Use the Site for any illegal purpose, or in violation of any local, state, national, or international law;
B. Violate or encourage others to violate our rights or the rights of third parties, including intellectual property rights;
C. Post, or upload any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
D. Interfere in any way with security-related features of the Site;
E. Interfere with the operation or any user’s enjoyment of the Site, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, making unsolicited offers or advertisements to other users, or attempting to collect personal information about users or third parties without their consent;
F. Access, monitor or copy any content or information of the Site using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission;
G. Perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, accessing the accounts of other users without permission, or falsifying your identity or any information about you, including age or date of birth; or
H. Sell or otherwise transfer the access granted herein.
4. Third Party Content. The Site may contain links to third party websites and services. We provide such links as a convenience, and do not control or endorse these websites and services. You acknowledge and agree that we have not reviewed the content, advertising, products, services, or other materials that appear on such third party websites or services, and are not responsible for the legality, accuracy, or appropriateness of any such content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of any such third party websites or services.
5. Intellectual Property. This Site and its entire contents and features (including all information, software, text, images, video, audio and the design) are owned by us, our licensors, or other providers of such material and are protected by applicable United States and international copyright, trademark, patent, trade secret and other intellectual property laws. No materials from the Site may be copied, reproduced, republished, uploaded, posted, publicly displayed or performed, downloaded, transmitted, or distributed in any way without our express permission, except as may be required for you to access and view the Site.
You may not access or use this Site for any commercial purposes, modify copies of any materials from this Site, or delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Site. Any use of this Site not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws. We intend to vigorously enforce our rights, including our intellectual property rights. You acknowledge and agree that you relinquish all ownership rights in any ideas or suggestions that you submit to us through this Site.
Our name our logo, and all related names, logos, product and service names, designs, and slogans are trademarks of us or our affiliates or licensors. You must not use such marks without our prior written permission.
FAIR USE NOTICE: The material on this Site is provided for educational and informational purposes. All photos that haven’t been taken by EQWELLIBRIUM® have either been purchased, used with permission, credited and linked back to their original sources or believed to be public domain. It is believed that this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have an interest in using the included information for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use’, you must obtain permission from the copyright owner. The information on this site does not constitute legal or technical advice.
6. User Content. This Site may contain message boards, forums, bulletin boards, product ratings, and consumer reviews that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Site.
By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. You represent and warrant that (i) you own or otherwise have the right to grant the license granted above with respect to any content you post to the Site and (ii) all of your User Contributions will comply with these Terms.
You understand and acknowledge that you are responsible for any User Contributions you post, and you, not we, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.
7. Reliance on Information Posted. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you or any other visitor to the Site, or by anyone who may be informed of any of the Site’s contents.
8. Termination. If you violate these Terms, your permission to use our Site will automatically terminate. In addition, we, in our sole discretion, may suspend or terminate your user account and/or suspend or terminate some or all of your access to the Site at any time, with or without notice to you. You may terminate your account at any time by contacting us at support@eqwellibrium.com. After your account is terminated, information and content previously provided by you will no longer be accessible through your account, but we may continue to store such information and content, and it may also be stored by third parties to whom it has been transferred through your use of the Site.
9. Modification of the Terms. We reserve the right at any time to modify these Terms and to impose new or additional terms or conditions on your use of our Site. Such modifications and additional terms and conditions will be effective immediately upon notice. We will make reasonable efforts to notify you of any material changes to the Terms, including by posting a notice to our Site or by sending an email to any address you may have provided to us. Your continued use of the Services following notice will be deemed acceptance of any modifications to the Terms.
10. Disclaimers of Warranties. OUR SITE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. Although we seek to maintain safe, secure, accurate, and well-functioning services, we cannot guarantee the continuous operation of or access to our Site, and there may at times be inadvertent technical or factual errors or inaccuracies. We make no warranty with respect to any third party goods and services made available or sold through our Site. YOUR USE OF THE SITE AND ANY THIRD-PARTY GOODS AND SERVICES MADE AVAILABLE OR SOLD THROUGH THE SITE IS AT YOUR OWN RISK. We specifically (but without limitation) disclaim with respect both to the Site and to any third-party goods and services made available or sold through the Site (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for any damages that may result from your use of or access to our Site. We do not guarantee the accuracy of, and disclaim all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through our Site.
11. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. Some jurisdictions do not allow the disclaimer of warranties or limitation of liability in certain circumstances. Accordingly, some of the above limitations or the disclaimer of warranties in Section 10 may not apply to you.
12. Indemnification. You agree that you will be personally responsible for your use of our Site, and you agree to defend, indemnify, and hold us, our officers, directors, employees, consultants, affiliates, subsidiaries, and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses (including attorneys’ and accounting fees and costs), arising out of or in any way connected with (i) your access to, use of, or alleged use of our Site; (ii) your violation of the Terms or any applicable law or regulation; (iii) your violation of any third party right, including any intellectual property right, publicity, confidentiality, property, or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
13. Governing Law. These Terms are governed by the laws of the State of New York, without regard to conflict of law principles. Subject to Section 15, to the extent that any lawsuit or court proceeding is permitted hereunder, you and we agree to submit to the exclusive personal jurisdiction of the state courts and federal courts located within the State of New York, for the purpose of litigating all such disputes.
14. Geographic Restrictions. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
15. Dispute Resolution.
(a) YOU AND US ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
(b) ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(c) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 15. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
(d) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
(e) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR US WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
(f) If any provision of this Section 15 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
16. Modification of the Site. We reserve the right to modify or discontinue, temporarily or permanently, some or all of the Site at any time without any notice or further obligation to you. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Site.
17. General.
A. Entire Agreement. These Terms, together with the Privacy Notice, constitute the entire and exclusive understanding and agreement between you and us regarding your use of and access to the Site, and except as expressly permitted above, may only be amended by a written agreement signed by authorized representatives of the parties.
B. No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
C. Paragraph Headers. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.
D. Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
18. Notice to California Residents. Under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.
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