By accessing or using the Services, including all Content (as defined below), You confirm Your agreement to be bound by these Terms. You acknowledge that (a) You have read and understood these Terms; and (b) these Terms have the same force and effect as an agreement signed by You. If You disagree with any part of the Terms, then You do not have permission to access the Services.
PLEASE NOTE: These Terms contain a mandatory arbitration agreement. Please review the Arbitration Agreement set forth below carefully, as it will require you to resolve all disputes with the Company on an individual basis through final and binding arbitration, and require you to forego jury trials, class actions, and all other types of court proceedings of any and every kind, unless you opt out of the Arbitration Agreement by following the opt-out procedures described below. By entering this Agreement, you expressly acknowledge that you have read and understand all of the terms of the Arbitration Agreement and have taken time to consider the consequences of this important decision.
I. ARBITRATION AGREEMENT
By agreeing to these Terms, You agree that You are required to resolve any claim that You may have against Pink Products on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude You from bringing any class, collective, consolidated, or representative action against Pink Products, and also preclude You from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Pink Products by someone else.
Agreement to Binding Arbitration Between You & Pink Products
You and Pink Products agree that any dispute, claim, or controversy arising out of or relating to (a) any part of these Terms, or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) Your access to or use of the Services at any time, will be settled by binding, individual arbitration between You and Pink Products, and not in a court of law in any jurisdiction.
You and Pink Products agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
You acknowledge and agree that You and Pink Products are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action, collective, consolidated, or representative proceeding. Unless both You and Pink Products agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, You and Pink Products each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and governing law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and any supplementary rules (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms.
Notwithstanding any choice of law or other provision in the Terms, You and Pink Products agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York, without regard to its conflict of laws provisions.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. You can contact AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879.
For claims under $10,000, You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location. If Your claim at or above $10,000, Your right to a hearing will be determined by the AAA Rules.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s applicable rules. We will reimburse those fees for claims totaling less than $10,000, unless the Arbitrator determines that either the substance of the claim or the relief sought in the Demand for Arbitration was frivolous or brought for an improper purpose, as measured by Federal Rule of Civil Procedure 11(b). Likewise, We will not seek attorneys’ fees and costs in arbitration, unless the Arbitrator determines that either the substance of the claim or the relief sought in the Demand for Arbitration was frivolous or brought for an improper purpose, as measured by Federal Rule of Civil Procedure 11(b).
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties.
Changes to Arbitration Agreement
Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if Pink Products changes this Arbitration Agreement after the date You first agreed to the Terms (or to any subsequent changes to the Terms), You may reject any such change by providing Pink Products written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either by mail or hand delivery to Pink Products, LLC 3900 Veterans Memorial Highway, Suite 200, Bohemia, New York, 11716, Attention: General Counsel, or(b)by email from the email address associated with Your Account to: email@example.com. In order to be effective, the notice must include Your full name and clearly indicate Your intent to reject changes to this Arbitration Agreement. By rejecting changes, You are agreeing that You will arbitrate any dispute between You and Pink Products in accordance with the provisions of this Arbitration Agreement as of the date You first agreed to the Terms (or to any subsequent changes to the Terms).
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THESE TERMS AND CONDITIONS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO Pink Products, LLC, 3900 Veterans Memorial Highway, Suite 200, Bohemia, New York 11716, Attention: General Counsel. To be effective, Your Opt-Out Notice must contain Your name, address, and signature. This procedure is the only way You can opt out of the Arbitration Agreement. If You opt out of the Arbitration Agreement, all other parts of these Terms will continue to apply to You. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that You may have with Us.
III. YOUR ACCEPTANCE
You affirm that You are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, warranties, and indemnification set forth in these Terms, and to abide by and comply with these Terms. If You are accepting this agreement on behalf of Your employer or other entity, You affirm that You have the authority to accept this agreement on its behalf.
Special terms may apply to some features offered through the Services, such as subscription-based services, rules for particular contests or sweepstakes or other features or activities. These terms are posted in connection with the applicable service or product offering. Any such terms are in addition to these Terms, and in the event of a conflict, prevail over these Terms. Your participation in the contests, sweepstakes or Your use of those features constitutes Your acceptance of the rules and special terms applicable to those features.
You acknowledge that these Terms are supported by reasonable and valuable consideration, the receipt and adequacy of which You hereby acknowledge. Without limiting the generality of the foregoing, You acknowledge that such consideration includes Your access to and use of the Services and receipt of data, materials and information available at or through the Services, the possibility of Our use or display of User Submissions (as defined below) and the possibility of the publicity and promotion from Our use or display of User Submissions.
IV. YOUR LICENSE TO ACCESS & USE THE SERVICES AND OWNERSHIP
The content, information, software, designs, materials, functions and data included in and contained on the Services (the “Content”) are protected by intellectual property and other laws. You must comply with these and any other applicable laws when You Use the Services. It is Your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from Our website. By placing an order, You represent that the products ordered are for your personal use, not for further distribution and will be used only in a lawful manner.
Unless indicated to the contrary and subject to Your strict compliance with these Terms, You may access and use the Services only for Your personal, non-commercial use, or in connection with Your authorized purchase or sale of Our products. In connection with these uses, Company grants You a limited, non-exclusive, revocable, non-assignable, personal and non-transferable license to: access, copy, download, display, view, use, play and/or print one (1) copy of the Content made available on the Services on a personal computer, mobile device or other Internet enabled device (each, an “Internet Device”), provided that You: (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the Content, and (c) do not use the Content in a manner that suggests Your association with any of Our products, services or brands. Any business use, “re-mailing” or high-volume or automated use of Services is prohibited.
In the event that We offer downloads of software on a Service and You download such software, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to You by Us or third-party licensors for Your personal, non-commercial use only. Your use of the Software may be governed by additional terms, which may be included with the Software. Please carefully read any additional terms to determine the full extent of conditions governing Your use of such Software. We do not transfer title to the Software to You. You may not copy, reproduce, distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form. Note that by installing certain applications that may be available via the Services, You are consenting to the download of Software to Your Internet Device, and You are accepting these Terms and any additional terms related to such application.
We reserve all rights in the Content and the Services that We do not specifically grant in these Terms. Without limitation, You may not modify, distribute, transmit, perform, broadcast, publish, license, reverse engineer, transfer or sell, or create derivative works from, the Services or any Content unless You obtain Our prior written approval. You also may not use the Services in a way that could harm Us or any third party. For example, You may not use the Services in a way that could:
Damage or interfere with the proper working of the Services;
Intercept any Content or information that We have not intentionally made available to You or defeat any access controls that We have implemented;
Give You access to the Services or Content Using any interface other than the interface that We provide, or attempt to “scrape” or “harvest” Content, except if You use a “robot” program in connection with a bona fide internet search engine and We do not instruct You not to access the Services using that program;
Frame the Services, display any Content in connection with an unauthorized logo or mark, or do anything that could suggest falsely a relationship between Us and any other party;
Convey unauthorized claims about the curative or health enhancing effects of Our products or suggest that We have made such claims; or
Otherwise adversely impact the operation of the Services, the Company, or any third party.
In addition to Our other legal rights, We may limit or terminate Your license to use the Services, or certain features of the Services, at any time and for any reason, without prior notice to You, including Our belief that You violated these Terms.
V. REGISTRATION & ACCESS RESTRICTIONS
We believe in children’s online safety and do not wish to receive information regarding children under 13 years old. Therefore, You may not post, transmit or submit any personally-identifiable information of a child under 13 years old or information sufficient to locate such a child on or through the Services. If You are under 13 years of age, then please do not attempt to submit any information to or use the Services.
VI. NO PROFESSIONAL ADVICE OR MEDICAL INFORMATION
Pink Products makes no representations regarding medical advice, diagnosis or treatment. The information included respecting the Services is offered for informational purposes only. Some portions of the Services may allow You to submit questions either to Us or to third parties who have agreed to communicate with Our users. Although We provide information about Our products through the Services, neither Our employees nor these third parties are authorized to provide medical or other professional advice through the Services. Pink Products makes no representations as to the qualifications of any third party who provides information through the Services to the extent the qualifications of such third party are provided. As a result, You should never use the information You obtain on the Services for diagnosis or treatment of any health problem or in place of any medication or other treatment prescribed by a physician or other healthcare provider.
Please consult with Your physician or other healthcare provider if You have health-related questions before using any of Our products or relying on any information You obtain regarding the Services. You should discuss any medications or nutritional supplements You are using with a healthcare provider before using any new medications or supplements. Please do not disregard or delay any medical advice based upon any information included on the Services.
The statements on the Services have not been evaluated by the Food and Drug Administration. Our products are not intended to diagnose, treat, cure or prevent any disease.
VII. USER SUBMISSIONS
The Services may allow You to submit, embed, display, transmit, or otherwise distribute audio, images, video, or text (collectively, “User Submissions”) to or through the Services. When You provide User Submissions, You grant to the Company a non-exclusive, royalty-free, fully paid, perpetual, worldwide, irrevocable and fully sub-licensable and transferable (in whole or in part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights You own or control to: (i) use, reproduce, transmit, modify, index, adapt, publish, translate, create derivative works from, distribute, display and otherwise exploit Your User Submissions throughout the world in any media, whether now known or hereafter invented, including for any and all purposes, including commercial or marketing purposes, all without further notice to You, with or without attribution, and without the requirement of any permission from or payment to You or any other person or entity, and (ii) to use Your name, persona or likeness alone or in connection with such uses of User Submissions, without any obligation or remuneration to You. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Submissions and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Submissions for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User Submissions, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with Our exercise of the granted rights. You understand that You will not receive any fees, sums, consideration, or remuneration of any kind for any of the rights granted in this Section.
On Pink Products’s social media sites, You further represent and warrant that You have the permission of any individuals depicted in photographs, videos or recordings that You submit to the Services to use their likeness and/or voice, as well as all other legal rights necessary to grant the license above to Pink Products.
We do not guarantee that User Submissions will be private, even if the User Submission is in a password-protected area. Accordingly, You should not provide User Submissions that You want protected from disclosure. Except as otherwise required by law, You agree that: (a) Your User Submissions will be treated as non-confidential-regardless of whether You mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) Company does not assume any obligation of any kind to You or any third party with respect to Your User Submissions. Upon Company’s request, You will furnish Us with any documentation necessary to substantiate the rights to such content and to verify Your compliance with these Terms. You acknowledge that the Services may be subject to breaches of security and that You are aware that submissions of User Submissions may not be secure, and You will consider this before submitting any User Submissions.
In Your communications with Company, please keep in mind that the Company does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, books, etc. (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials You post on or send to Us via the Services are deemed User Submissions and licensed to Us as set forth above. In addition, Company retains all of the rights held by members of the general public with regard to Your Unsolicited Ideas and Materials. The Company’s receipt of Your Unsolicited Ideas and Materials is not an admission by Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to Your Unsolicited Ideas and Materials. Notwithstanding any custom and practice to pay an individual for an idea (if any), nothing herein shall create an implied or express contract to compensate entrants for their Unsolicited Ideas and Materials. The Company will not pay or otherwise compensate You for any of Your ideas or materials in any communications with Us, whatsoever.
By providing User Submissions through the Services, You represent, warrant and covenant that You own those User Submissions or otherwise have the right to grant to Us the rights described in this section. You further represent, warrant and covenant that the User Submissions will:
Be truthful, complete and accurate and will comply with these Terms and all applicable laws;
Be original, with Your having the right, or all necessary rights from third parties in order, to post the User Submissions on Our Services, without the need for any permission from or payment to any other person or entity to exploit, and to authorize Us to exploit, such User Submissions in all manners contemplated by these Terms;
Be respectful of others’ opinions so We can continue to offer interactive features for everyone to enjoy;
Not cause injury to any person or entity, including as Used by Us in accordance with these Terms;
Not be false, fraudulent, libelous, defamatory, sexually explicit, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable;
Not constitute or encourage violence or a criminal offense, violate the rights of any party, including intellectual property rights, or otherwise give rise to liability or violate any law;
Not impersonate any other person, User, or company, or may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents Your identity or affiliation with a person or company;
Not include other people’s personal information, such as another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to identify, track, contact, or impersonate that individual;
Not contain software viruses, Trojan horses, spyware or any other technologies or malicious code that could impact the operation of the Services or any computer or device used to access the Internet or political campaigning, chain letters, mass mailings, or any form of “spam;” and
Not contain, advertise or promote a product or service or include advertising or other commercial material, except with Our prior written consent.
We may refuse or remove a User Submission without notice for any reason, including Our belief that a User Submission may violate these Terms or be otherwise objectionable. However, We will have no obligation to review, monitor, display, post, store, maintain, accept or otherwise make use of, User Submissions, and You agree that neither We nor Our employees or agents will be liable for User Submissions or any loss or damage to You and any other person or entity resulting directly or indirectly from User Submissions.
You are solely responsible for Your interaction with other Users of the Services, whether online or offline. You are and shall remain solely responsible for the User Submissions You distribute on or through any Services and for the consequences of submitting and posting same. You should be skeptical about information provided by others, and You acknowledge that the Use of any User Submission is at Your own risk. We are not responsible or liable for the conduct of any User or content of any User Submission. We do not endorse the opinions, advice or recommendations posted or sent by Users in any User Submission, and We specifically disclaim any and all liability in connection therewith. We reserve the right, but have no obligation, to monitor or become involved in disputes between You and other Users. Exercise common sense and Your best judgment in Your interactions with others (e.g., when You submit any personal or other information) and in all of Your other online activities. If You discover any content that violates these Terms, then You may report it to: firstname.lastname@example.org
We cannot and do not assure that other Users are or will be complying with the foregoing or any other Terms, and, as between You and Us, You hereby assume all risk of harm or injury resulting from any such lack of compliance.
YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST THE Pink Products PARTIES (AS DEFINED BELOW) WITH RESPECT TO USER SUBMISSIONS, AND AGREE TO INDEMNIFY AND HOLD THE Pink Products PARTIES HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICES.
Comments made on the Services by other users are strictly their own personal opinions, made in their own personal capacity, and are not claims made by Us, and do not represent Our opinion on any matter. Product ratings posted by users of the Services are strictly their own personal views, made in their own personal capacity, based on their own individual experiences, are not claims made by Us, and are not intended as a substitute for medical advice.
VIII. THIRD PARTY SITES
The Services may contain links to third-party websites and online services (such as social media sites) that are not owned or controlled by Pink Products. Pink Products has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or online services, and You access and use these websites or online services solely at Your own risk. These links are provided for Your reference and convenience only, and do not necessarily imply Our endorsement, sponsorship or recommendation of the material on these third-party websites or online services or any association with their operators. In addition, Pink Products will not and cannot control or edit the content of any third-party website or online service. BY USING THE SERVICES, YOU EXPRESSLY RELEASE Pink Products, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSORS, LICENSEES, AND SUPPLIERS (COLLECTIVELY “THE Pink Products PARTIES”) FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR ONLINE SERVICESS AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD-PARTY. Accordingly, We encourage You to be aware when You leave the Services and to read the terms and conditions of use for each other website or online service that You visit.
Except as You have otherwise agreed with Pink Products in writing, You may link to the Services from Your website, subject to the following: (1) You may not frame the Services or any portion of the Services; (2) You will not override or hinder the functionality of an end-user’s web browser’s “back” function; (3) the link must be identified using a plain text rendering of the Pink Products name and not any Pink Products logo; (4) You may not use any Pink Products logo in any way; (5) You may not use the link in any way that suggests that Pink Products is associated with or endorses You or Your website; (6) the link may not appear on any website that a reasonable person may consider obscene, defamatory, harassing, offensive or malicious, and may not be presented in any way that disparages Pink Products or damages its rights, reputation, or goodwill; and (7) We may terminate Your right to link to the Services at any time for any reason or no reason without any notice to You.
Coupons and promotional codes provided to You are for Your individual use only. You may not transfer, reproduce, trade, offer for sale, publish or otherwise share the Company coupons. We reserve the right to terminate a coupon offering at any time and/or set expiration dates for such offers at any time and in Our sole discretion. Coupons are not valid on prior purchases.
X. ELECTRONIC COMMUNICATIONS
When You access or Use the Services, send e-mails to Us, or receive electronic communications from Us, You are, and consent to, communicating with the Company electronically. We may communicate with You by e-mail or by posting notices through one or more of the Services. You agree that all notices, disclosures, agreements, policies, and other communications that the Company provides to You electronically satisfy any requirement that such communications be in writing.
XI. DOMESTIC USE; EXPORT RESTRICTION
We control Our Website from Our offices within the United States of America. We make no representation that the Services, the Website or their contents (including, without limitation, any products or services available on or through the Services) are appropriate or available for use in other locations. Users who access the Services from outside the United States do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from Our Website may be downloaded in violation of United States law.
XII. COPYRIGHT INFRINGEMENT NOTICE
We respect the intellectual property rights of others. If You believe that Content on the Services violates Your copyright, please send Us a notice to Pink Products, LLC, 3900 Veterans Memorial Highway, Suite 200, Bohemia NY 11716, Attention: General Counsel or email Us at email@example.com.
This contact information is only for notices of copyright infringement. Contact information for other matters is listed at the end of these Terms.
Your notice must include:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit Us to locate the material;
Information reasonably sufficient to permit Us to contact the complaining party;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of a notice of claimed infringement that satisfies these requirements (or any statement in conformance with 17 U.S.C.§512(c)(3)), We will act expeditiously to investigate the matter fully, and if appropriate will remove or disable access to any Content that is claimed to be infringing upon the copyright of any person under the laws of the United States and will terminate the access privileges of those who repeatedly infringe on the copyrights of others. United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.
You agree that Your use of the Services shall be at Your sole risk. The Services and Content are provided on an “as is” basis. Pink Products gives no warranty and makes no representation in relation to the Services or the Content. The entire risk as to the quality and performance of the Services is with the buyer. Should the Services prove defective following their purchase, the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair. Pink Products expressly disclaims to the fullest extent permitted by law, and You waive any representation or warranty (express, implied, or statutory) that may be implied by these Terms, by custom, or by law or otherwise and which is not expressly set out herein. This includes the disclaimer of any implied warranties of availability of the Services, non-disruption, security, accuracy, the use of reasonable care and skill, quality, merchantability, title or entitlement, fitness for a particular purpose, ability to achieve a particular result or functionality and non-infringement of third-party rights, as well as warranties arising by usage of trade, course of dealing, and course of performance by Pink Products relating to the Services, the Content, User Submissions, any software licensed or provided to You by Pink Products, and any agreement with a third-party. Pink Products also does not represent or warrant that the Services will operate in combination with other hardware, software, systems or data not provided by Pink Products; that Services errors will be corrected; or that the Services are PCI compliant.
As noted below, in certain states, the law may not permit the disclaimer of warranties, so the above disclaimer may not apply to You.
XIV. LIMITATION OF LIABILITY
In no event shall Pink Products be liable to You or any third-party for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from the Services or third-party products or services, under these Terms or in connection with their performance or breach. This limitation applies to any loss of profits or savings, or anticipated profits or savings, data, opportunity, reputation, goodwill or business, even if Pink Products has been advised of the possibility of such damages in advance.
Pink Products assumes no liability or responsibility for any (1) errors, mistakes, inaccuracies, or omissions of and in any content, (2) personal injury or property damage of any nature whatsoever (including, without limitation, data loss or corruption) resulting from Your access to and use of the Services, (3) unauthorized access to or use of Our servers and/or any and all personal information, content, and/or information stored therein, (4) interruption, cessation, suspension, or disruption of transmission to or from the Services, including from Pink Products’s negligence, (5) inadequate or faulty hardware operating the Services, (6) bugs, viruses, Trojan horses, destructive computer codes, or the like which may be transmitted to or through the Services by any third-party, (7) user content, third-party websites or apps, and/or (8) loss, damage, or other undesirable consequences of any kind resulting from the use of any content posted, emailed, transmitted, or otherwise made available via the Services. Pink Products will also have no liability whatsoever for any damage, liability or loss that You or any other person may incur, or for any other undesirable consequences, resulting from Your breach of Your warranties or other obligations under these Terms, including, without limitation, the obligation to avoid sharing Your email account information with any other person.
By accessing or using the Services, You understand that You are waiving rights with respect to claims that are at this time unknown or unspecified, and in accordance with such waiver, You acknowledge that You have read and understand, and hereby expressly waive, the benefits of section 1542 of the California Civil Code, and any similar law of any state or territory, which provides as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Pink Products’s maximum aggregate liability for any single event (or a series of related events) giving rise to a claim in connection with these Terms or in relation to the Services will be limited to the amount You paid Us during the three months preceding Your initiation of the claim or dispute. Such a refund, in any case, will be governed by the applicable Refund Policy and the Terms of Sale specified on the Services or in these Terms. Any claims relating to use of the Services must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are waived and VOID.
The Services are controlled and offered by Pink Products from its facilities in the United States of America. We make no representation that Content on any Services is appropriate or available for use in any particular location. Those who access or use the Services do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.
The limitations, exclusions and disclaimers in these Terms apply to the maximum extent permitted by applicable law. The limitations and LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE COMPANY’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify, defend, and hold harmless Pink Products from and against any claim, loss, obligation, demand, damage, cost, liability, expense, and attorneys’ fees incurred, resulting from or arising out of (1) Your access to, use, or misuse of the Services; (2) a breach of these Terms; (3) Your violation of any third-party right, including without limitation, any copyright, property, or privacy right; (4) any claim that any of Your User Submissions caused damage to an indemnified party or a third-party; (5) any transaction You conduct as a result of the contact facilitated by the Services; or (6) any activity using Your email address by You or any other person accessing the Services using Your email address. We reserve the right, at Our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Us in the defense of such matter. You may not settle any claim covered by these Terms or admit any liability on the part of the Company without the Company’s prior written approval.
XVI. JURISDICTION & VENUE
The laws of the State of New York govern these Terms and govern any dispute of any sort that may arise between You and the Company or its affiliates, without regard to conflict of laws rules of any other jurisdiction. In the event You opt-out of the Arbitration Agreement in Section I of these Terms, or the Arbitration Agreement does not otherwise apply, You irrevocably consent to the jurisdiction of the state and federal courts located in or serving Suffolk County, New York for any action relating to the Services or these Terms. Notwithstanding any other provision of these Terms, We may seek injunctive or other equitable relief from any court of competent jurisdiction.
Regardless of any statute or law to the contrary, You must file any claim or action related to use of the Services or these Terms within one year after such claim or action accrued. Otherwise, You will waive the claim or action.
These Terms constitute an agreement between You and the Company, which the Company may terminate in its sole discretion, in whole or in part, at any time and for any reason. If the Company terminates this agreement with You, You may no longer access the Services. Upon termination of this agreement and/or Your access to the Services, You will immediately destroy any copies of any Content, whether in printed, downloaded or other software format. Otherwise applicable portions of these Terms survive termination of these Terms, including applicable portions of the sections relating to No Professional Advice or Medical Information; User Submissions; Third Party Sites; Electronic Communications; Disclaimers; Limitation of Liability; Indemnification; Jurisdiction; Termination; and Entire Agreement, Severability, Survival, No Waiver.
XVIII. ENTIRE AGREEMENT, SEVERABILITY, SURVIVAL & NO WAIVER
Our failure to exercise or enforce any right or provision in these Terms or insist upon compliance with any term or condition of these Terms shall not constitute a waiver of that right or provision or any other rights or provisions included within the Terms or excuse a similar subsequent failure to perform any such term or condition by You.
XIX. CHANGES, MODIFICATIONS & DISCONTINUANCES
By using the Services, You agree to be bound by the most recent version of the Terms. Pink Products reserves the right to change these Terms at any time. Please review the Terms each time You visit the Services. If We have Your email address, We may, but are not obligated to, notify You of material changes to the Terms via email. What constitutes a material change will be determined at Pink Products’s sole discretion. If We do not have Your email address, We will update this page to reflect any changes to the Terms.
We also reserve the right to modify or discontinue the Services (or any portion of the Services), temporarily or permanently, with or without notice to You, and are not obligated to support or update the Services. YOU AGREE THAT Pink Products SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY IN THE EVENT THAT WE EXERCISE OUR RIGHT TO MODIFY OR DISCONTINUE THE SERVICES (OR ANY PORTION OF THE SERVICES). Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to these Terms.
By continuing to access or use the Services after any revisions to the Terms become effective, You agree to be bound by the revised Terms. If You do not agree to the new Terms, You are no longer authorized to access or use the Services.
XX. HOW TO CONTACT US
If You have any questions or comments about these Terms or the Services, please contact Us by:
Mail: Pink Products, LLC, 3900 Veterans Memorial Highway, Suite 200, Bohemia NY11779, Attn: Customer Service
Thank you for visiting our Site.
Last Updated: December 31, 2019