1. GENERAL INFORMATION
1.1 THINK CLEAR SKIN PRODUCTS
These Terms & Conditions (these “Terms”) contain the terms and conditions on which we supply content, products or services listed on www.thinkclearskin.com (the “Website”), on our landing pages (the “Landing Pages”), our emails (the “Emails”) or via other delivery methods to you (the Website and such content, products, services and the Emails are collectively referred to herein as the “Product” or “Products”, which may be updated from time-to-time at the sole discretion of Think Clear Skin). Please read these terms and conditions, carefully before ordering any Products from the Website or third party Landing Page stores (e.g. Leadpages, Youtube, etc.). The terms “Think Clear Skin,” “us” or “we” refers to Think Clear Skin. The term “Device” refers to the device which is used to access the Products including but not limited to computers, smart phones and tablets. The term “you” refers to the user of the Products. When you order (“Order”) any Products, or otherwise use or access the Products, you agree to be bound by these Terms and all applicable laws, rules and regulations. You may also be asked to click “I accept” at the appropriate place prior to your purchase of access to the Products. At such time, if you do not click “I accept”, you may not be able to complete such purchase or gain such access. By using the Products, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the Products.
Our contact email address is firstname.lastname@example.org. All correspondence to Think Clear Skin including any queries you may have regarding your use of the Products or these Terms should be sent to this contact email address.
1.2 ARBITRATION NOTICE AND CLASS ACTION WAIVER
PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND THINK CLEAR SKIN AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE PRODUCTS WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND THINK CLEAR SKIN WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.3 BASIS OF LICENSE
(a) These Terms and the Order set out the whole agreement between you and us for the supply of the Products. In order to participate in certain Products, you may be required to agree to additional terms and conditions; those additional terms are hereby incorporated into these Terms. Where such terms are inconsistent with these Terms, the additional terms shall control.
(b) Please check that the details in these Terms and on the Order are complete and accurate before you use or commit yourself to purchase the Products. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by an officer of Think Clear Skin.
(c) AS PART OF YOUR USE OF THE PRODUCTS, YOU AFFIRMATIVELY CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION BY THINK CLEAR SKIN, TEACHABLE.COM, STRIPE, AND/OR PAYPAL. WE WILL TAKE MEASURES AS REQUIRED TO COMPLY WITH APPLICABLE LAW REGARDING THE TRANSFER, STORAGE AND USE OF CERTAIN PERSONAL INFORMATION.
1.4 CHANGES TO TERMS
Think Clear Skin reserves the right to change or update these Terms, or any other of our policies or practices, at any time, and will notify users by posting such changed or updated Terms on this page. Any changes or updates will be effective immediately upon posting to www.thinkclearskin.com. Your continued use of the Products constitutes your agreement to abide by the Terms as changed. Under certain circumstances we may also elect to notify you of changes or updates to our Terms by additional means within the Products or email.
2. MEMBERSHIPS AND SUBSCRIPTIONS
(a) As a Think Clear Skin Member you will receive access to certain sections, features and functions of the Products that are not available to non-members. By agreeing to become a Member you opt-in to receiving occasional special offer, marketing, survey and Product based communication emails. You can easily unsubscribe from Think Clear Skin commercial emails by following the opt-out instruction in these emails. Think Clear Skin memberships and subscriptions are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever.
(b) Your membership to Think Clear Skin will continue month-to-month until terminated. To use the Think Clear Skin’s meditation service you must have Internet access, and provide us with a Payment Method. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time, and which may include payment through your account with a third party. Unless you cancel your membership before your monthly billing date, you authorize us to charge your next month’s membership fee to your Payment Method (see “Cancellation” below).
(c) We may offer a number of membership plans, including special promotional plans or memberships. Some membership plans may have differing conditions and limitations, which will be disclosed at your sign-up or in other communications made available to you.
2.2 ONCE A MEMBER
You are responsible for maintaining the confidentiality of your account, password and other User Information and for restricting access to your Device to further help protect such information. You are responsible for updating your User Information.
2.3 FREE TRIALS
(a) Your Think Clear Skin membership may start with a free trial. The free trial period of your membership lasts for 14 days, or as otherwise specified during sign-up and is intended to allow new members and certain former members to try the service.
(b) Free trial eligibility is determined by Think Clear Skin at its sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your account on hold in the event that we determine that you are not eligible. Members with an existing or recent Think Clear Skin membership are not eligible. We may use information such as device ID, method of payment or an account email address used with an existing or recent Think Clear Skin membership to determine eligibility.
(c) We will charge your Payment Method for your monthly membership fee at the end of the free trial period unless you cancel your membership prior to the end of the free trial period.
(a) Billing Cycle. The membership fee for the Think Clear Skin service and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged on a monthly, quarterly, biannual or annual basis to your Payment Method on the calendar day corresponding to the commencement of the paying portion of your membership. In some cases your payment date may change, for example if your Payment Method has not successfully settled or if your paid membership began on a day not contained in a given month.
(b) Payment Methods. To use the Think Clear Skin service you must provide a Payment Method. You can update your Payment Method by sending an email to email@example.com. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s). You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment of your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Local tax charges may vary depending on the Payment Method used. Check with your Payment Method service provider for details.
You can cancel your Think Clear Skin membership at any time, and you will continue to have access to the Think Clear Skin service through the end of your monthly billing period. To the extent permitted by the applicable law, payments are non-refundable and we do not provide refunds or credits for payments for any partial-month membership periods or Think Clear Skin content that has not been listened to. To cancel, go to the “Membership & Billing” page and follow the instructions for cancellation or email firstname.lastname@example.org. If you cancel your membership, your account will automatically close at the end of your current billing period.
2.6 CANCELLATION BY US
We may suspend or terminate your use of the Products as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of our audio or video content from the Products.
2.7 CHANGING FEES AND CHARGES
We reserve the right to change our subscription plans or adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your subscription plan will take effect following notice to you.
2.8 USE OF THINK CLEAR SKIN BY MINORS
You must be 18 years of age, or the age of majority in your province, territory or country, to sign up as a registered user of the Products. Individuals under the age of 18, or the applicable age of majority, may utilize the Products only with the involvement and consent of a parent or legal guardian, under such person’s account and otherwise subject to these Terms.
3. PROHIBITED USE OF THE PRODUCTS
(a) You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Products or the Products themselves. You agree not to interfere with the servers or networks underlying or connected to the Products or to violate any of the procedures, policies or regulations of networks connected to the Products. You may not access the Products in an unauthorized manner.
(b) You agree not to impersonate any other person while using the Products, conduct yourself in an offensive manner while using the Products, or use the Products for any illegal, immoral or harmful purpose.
(c) By breaching the provisions of this section, you may commit a criminal offense under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Products will cease immediately.
(d) You agree not to use the Products for any purposes related to scientific research, analysis or evaluation of the Products without the express written consent of Think Clear Skin.
4. MATERIALS OFFERED THROUGH THE PRODUCT
(a) All materials (including software and content whether downloaded or not) contained in the Products are owned by Think Clear Skin (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
(b) You acknowledge and agree that certain materials on or in the Products are the property of third party licensors and, without prejudice to any and all other rights and remedies available, each such licensor has the right to directly enforce relevant provisions against you.
(c) Audio or video content from Think Clear Skin not explicitly indicated as downloadable may not be downloaded or copied from the Products or any Device.
(d) The Products are not intended for your commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. You must not use any part of the materials used in or on the Products for commercial purposes without obtaining a written license to do so from us. Material from the Products may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the Products and may subject you to legal liability. You agree not to use the Products for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Products. Appropriate legal action may be taken for any illegal or unauthorized use of the Products.
(e) A limited amount of content may be marked and authorized for the user to share in their personal social channels (Youtube, Facebook, Twitter, etc.). With respect to content made available by Think Clear Skin through the Products that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), Think Clear Skin grants you a limited right to distribute Distribution Content over the internet as part of your User Commentary. You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through your computer systems and over the Internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Products, such as display and distribution of Distribution Content only within specified usage dates. You agree not to publish the Distribution Content with other content that is known by you to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain trackers that enable us to collect information with respect to the distribution and consumption of such content.
(f) You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Products. If you make other use of the Products, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, United Kingdom, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Think Clear Skin will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
4.2 LOGOS/ TRADEMARKS
The Think Clear Skin logo and all other Think Clear Skin product or service marks are owned by or licensed to Think Clear Skin. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Products are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material. Your misuse of the logos and/ or trademarks displayed on the Products is strictly prohibited. Think Clear Skin will enforce its copyright and/or trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
5. AVAILABILITY OF PRODUCTS
(a) Although we aim to offer you the best service possible, we make no promise that the Products will meet your requirements and we cannot guarantee that the Products will be fault free. If a fault occurs in the Products, please report it to us at email@example.com and we will review your complaint and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Products while we address the fault. We will not be liable to you if the Products are unavailable for a commercially reasonable period of time.
(b) Your access to the Products may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Products. We will restore the Products as soon as we reasonably can. In the event that the Products are unavailable, our usual Order and cancellation deadlines apply; please notify us of changes to your Order by emailing firstname.lastname@example.org.
6. LINKS TO WEBSITES/HOME PAGE
6.1 We may provide links to other websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. We are not responsible in any way for:(a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other websites or services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
6.2 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Products must not be framed on any other website, nor may you create a link to any part of the Products unless you have written permission to do so from Think Clear Skin. We reserve the right to withdraw linking permission with written notice. The website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on or in the Products other than that set out above, please address your request to email@example.com.
7. PRODUCTS DISCLAIMER
The information contained in the Products is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Products or the information contained on the Products for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
8. MEDICAL DISCLAIMER
(a) Think Clear Skin is a provider of online and mobile meditation content in the health & wellness space. We are not a health care or medical device provider, nor should our Products be considered medical advice. Only your physician or other health care provider can do that. While there is third party evidence from research that meditation can assist in the prevention and recovery process for a wide array of conditions, including acne, Think Clear Skin makes no guarantees that the Products provide a therapeutic benefit.
(b) Any health information and links on the Products, whether provided by Think Clear Skin or by contract from outside providers, is provided simply for your convenience.
(c) Any advice or other materials in the Products are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Products.
(d) There have been rare reports where people with certain psychiatric problems like anxiety and depression have experienced worsening conditions in conjunction with intensive meditation practice. People with existing mental health conditions should speak with their health care providers before starting a meditation practice.
9. END USER LICENSE
9.1 Subject to the terms of this license agreement (“License Agreement”), as set out in this section, and these other Terms, and your payment of applicable subscription fees, Think Clear Skin grants you a limited, non-exclusive, revocable license to stream and make personal non-commercial use of the Products.
9.2 The Products contain or embody copyrighted material, proprietary material or other intellectual property of Think Clear Skin or its licensors. All right, title and ownership in the Products remain with Think Clear Skin or its licensors, as applicable. The rights to stream and use the Products are licensed to you and are not being sold to you, and you have no rights in them other than to use them in accordance with this License Agreement and our other Terms.
9.3 You agree that you will not and you will not assist or permit any third party to:
- (a) Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble the Products in any way, or create derivative works of the Products;
- (b) Use the Products or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever;
- (c) Rent, lease, loan, make available to the public, sell or distribute the Products in whole or in part;
- (d) Tamper with the Products or circumvent any technology used by Think Clear Skin or its licensors to protect any content accessible through the Products;
- (e) Circumvent any territorial restrictions applied to the Products; or
- (f) Use the Products in a way that violates this License Agreement or the other Terms.
9.4 You may not make the Products available to the public. The Products made available (in whole or in part) are owned by Think Clear Skin or its licensors and your use of them must be in accordance with these Terms.
10. DIGITAL MILLENIUM COPYRIGHT ACT (“DMCA”) NOTICE
10.1 We are committed to complying with copyright and related laws, and we require all users of the Products to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Products in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
10.2 If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.
10.3 If you believe that your work has been copied and posted on the Products in a way that constitutes copyright infringement, please provide our designated agent with the following information:
- (a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- (b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
- (c) A description of where the material that you claim is infringing is located on the Products;
- (d) Your address, telephone number, and email address;
- (e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- (f) A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- (g) Our designated agent for notice of claims of copyright infringement can be reached by email at firstname.lastname@example.org with the subject line DMCA.
11. GENERAL TERMS AND CONDITIONS
11.1 ASSIGNMENT BY US
Think Clear Skin may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.
11.2 INDEMNITY BY YOU
You agree to defend, indemnify and hold Think Clear Skin and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Products, your placement or transmission of any message, content, information, software, or other submissions through the Products, or your breach or violation of the law or of these Terms. Think Clear Skin reserves the right, at its 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 Think Clear Skin’s defense of such claim.
11.3 WARRANTIES AND LIMITATIONS
(a) We warrant to you that any Product purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.
(b) We warrant that we will use reasonable skill and care in making the Products available to you during your subscription.
(c) Nothing in this sections or otherwise in these Terms shall exclude or in any way limit Think Clear Skin’s liability for: fraud; death or personal injury caused by negligence; or liability to the extent the same may not be excluded or limited as a matter of law.
(d) The Products and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to them, including as to the accuracy, completeness or currency of the Products or their content. We assume no liability or responsibility for any errors or omissions in the content of the Products, or any failures, delays, or interruptions in the provision of the Products. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Products to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Products. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Products. We make no warranties or representations that your use of content and information posted on the Products will not infringe rights of third parties.
(e) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.
11.4 NO WAIVER
If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
11.5 FORCE MAJEURE
We will not be liable to you for any lack of performance, or the unavailability or failure, of the Products, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
In these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
11.7 ELECTRONIC COMMUNICATIONS
(a) Applicable laws require that some of the information or communications we send to you should be in writing. When using the Products, you agree to transact with us electronically, and that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Products. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
(b) In order to retain a copy, please select “Print,” and select the appropriate printer. If you do not have a printer, you can copy the text and the underlying agreement(s) and paste them into a new document in a word processor or a text editor on your computer and save the text.
(c) To receive and view an electronic copy of the communications you must have the following equipment and software:
- (i) A personal computer or other device which is capable of accessing the Internet. Your access to this page verifies that your system/device meets these requirements.
(d) To retain a copy, you must either have a printer connected to your personal computer or other device or, alternatively, the ability to save a copy through use of printing service or software such as Adobe Acrobat®. If you have a word processor or text editor program on your computer, then you can also copy the text and paste the text into a new document in the word processor or text editor and save the text.
(e) You can also contact us via email at email@example.com to withdraw your consent to receive any future communications electronically, including if the system requirements described above change and you no longer possess the required system. If you withdraw your consent, we may terminate your use of the Products.
(f) We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.
Unless otherwise specifically indicated, all notices given by you to us must be given to Think Clear Skin at firstname.lastname@example.org. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in the section above. Notice will be deemed received and properly served immediately when posted on the Products or when an e-mail or other electronic communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
11.9 ENTIRE AGREEMENT
These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.
11.10 THIRD PARTY RIGHTS
A person who is not party to these Terms will not, subject to section (“DMCA”), have any rights under or in connection with these Terms.
11.11 OUR LIABILITY
(a) We will use reasonable endeavors to remedy faults in the Products. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Products in question. In addition, we will not be liable for:
- (i) Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).
- (ii) Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the Products, or from transmissions via emails or attachments received from us.
- (iii) Any use of websites linked to the Products but operated by third parties.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH THINK CLEAR SKIN, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THINK CLEAR SKIN.
(a) Applicability of Arbitration Agreement. All disputes arising out of, relating to, or in connection with these Terms or your use of the Products that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and Think Clear Skin are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator.
If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county of your billing address. In the case of an in-person hearing, the proceedings will be conducted at a location which is reasonably convenient for both parties with due consideration of the ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the arbitration institution.
Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by Think Clear Skin. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Think Clear Skin for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(c) Authority of Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Think Clear Skin. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under applicable law, the arbitral forum’s rules, and the Terms. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Think Clear Skin.
(d) Jury Trial Waiver. You and Think Clear Skin waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and Think Clear Skin elect to have claims and disputes resolved by arbitration. In any litigation between you and Think Clear Skin over whether to vacate or enforce an arbitration award, you and Think Clear Skin waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.
(e) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND THINK CLEAR SKIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Think Clear Skin are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in the section below.
(f) Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor Think Clear Skin can force the other to arbitrate. To opt-out, you must notify Think Clear Skin in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your Think Clear Skin account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to the email addresses: email@example.com.
(g) Small Claims Court. Notwithstanding the foregoing, either you or Think Clear Skin may bring an individual action in small claims court.
(h) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Think Clear Skin.
11.13 EXCLUSIVE VENUE
To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Think Clear Skin agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the United States District Court for the Central District of New York City. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the Superior Court of New York. You and Headspace consent to the personal jurisdiction of both courts.
11.14 CHOICE OF LAW
Except to the extent they are preempted by U.S. federal law, the laws of New York, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.
If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.
These Terms are effective and were last updated on August 2nd, 2018.