Last Updated and Effective: 2023-07-03
2. Key Terms
ELSI Skin Health, Inc. hereinafter referred to as the “Company”, “HelloBiome”, “Dr. Elsa Jungman”, “DR-EJ”, “we”, “us”, “our” is a legal entity incorporated under the laws of the State of Delaware (USA), file number 6784855.
“Content” means logos, design, text, graphics, images, software, audio, video, works of authorship of any kind, and information and other materials that are posted, generated, provided, or otherwise available through or on the Site. We and our licensors exclusively own all rights, title, and interest in and to the Content, including all associated intellectual property rights. You acknowledge that Content is protected by copyright, trademark, and other laws of the United States and foreign countries and that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights or notices incorporated in or accompanying Content on the Site.
“Site” means the website available on domains “dr-ej.com”, “hellobio.me”, including all subdomains and subparts, as well as our social media accounts on Facebook, Instagram, YouTube, Google, and Twitter, and other platforms and applications for mobile, tablet, and other smart devices and application programs.
“Your” means any visitor to the Site, regardless of whether the visitor registers for the Site or purchases any services or products from the Site and is referred to herein as “User” or “you.”
“User Content” refers to any photographs, comments, video clips, or other Content that Users, including you, may upload to the Site. By uploading User Content to the Site, you expressly permit us to display and use the User Content for any legal purpose. Content includes, without limitation, User Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights a User may have to use and exploit their own User Content.
3. Acceptance Of Terms
By purchasing a product, you agree to these Terms and any amendments hereto that may be published from time to time on the Site, each of which is incorporated by reference.
YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THE SITE, AS STATED FULLY IN THE “DISPUTE RESOLUTION” SECTION BELOW.
4. Eligibility To Use the Site
By browsing or using the Site, you agree that you are at least thirteen (13) years of age. If you are between thirteen (13) and seventeen (17) years of age, you can only use the Site with the permission and involvement of your parent or guardian. As long as you comply with these Terms, you may view and use our Site for your personal, non-commercial purposes. No other use of the Site is authorized.
5. Rules Of Conduct and General Prohibitions
You must only use this Site for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site. You may not, without our written consent: (i) copy, reproduce, use, or otherwise deal with any Content on the Site; (ii) modify, distribute, or re-post any Content on the Site for any purpose; or (iii) use the Content of the Site for any commercial exploitation whatsoever.
In using the Site, you further agree not to do any of the following:
- post, publish, submit, or otherwise transmit any Content that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy; (ii) is knowingly false, fraudulent, misleading, or deceptive; (iii) is defamatory, abusive, vulgar, hateful, harassing, obscene, profane, sexually-oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law; or (iv) promotes illegal or harmful activities or substances;
- disrupt or interfere with the security of, or otherwise abuse, the Site or any service, systems resource, account, server, or network connected to or accessible through the Site, or affiliated or linked websites;
- disrupt or interfere with any other User’s enjoyment of the Site, or affiliated or linked websites;
- post, publish, submit, or otherwise transmit through or on the Site any viruses or other harmful, disruptive, or destructive files;
- use, frame, or utilize framing techniques to enclose our trademark, logo, or other proprietary information (including, but not limited to, images found on the Site, Content, any text, or the layout/design of any page or form contained on a page) without our express written consent;
- use meta tags or other “hidden text” utilizing our name, trademark, or product name without our express written consent;
- deep-link to the Site without our express written consent;
- create or use a false identity on the Site, share your account information, or allow any person besides yourself to use your account to access the Site;
- collect or store personal data about others;
- reverse engineer or disassemble HelloBiome’s products/services or any part thereof to create or derive any HelloBiome or third-party intellectual property;
- attempt to obtain unauthorized access to the Site or portions of it that are restricted from general access; and
- encourage or enable another User or individual to do any of the foregoing prohibited activities.
By accessing or using this Site you agree to comply with all applicable local, national, and international laws and regulations relating to your use of or activities on the Site. To the extent permissible by law, we will not be responsible or liable to any third party for the User Content or accuracy of any Content posted by you or any other User on the Site. We have the right to remove any User Content or posting you make on the Site if, in our sole discretion, such Content or posting does not comply with the standards set out in these Terms.
If you do not agree to these Terms, you do not have our consent to obtain information from or otherwise use the Site. Failure to use the Site in accordance with these Terms may subject you to civil or criminal penalties.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE, AND/OR DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS WHETHER OR NOT YOU HAVE CREATED AN ACCOUNT ON THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.
6. Your Account
You may choose to register an account with HelloBiome to access certain services. With respect to any such registration, we may refuse to grant you the username you request. Your username and password are for your personal use only. You are responsible for maintaining the confidentiality of your account and password and for restricting access to them, and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to HelloBiome, including those set forth in these Terms, we reserve the right, in our sole discretion, to terminate your account or your use of the Site, block or prevent future access to and use of the Site, refuse service to you, or cancel your product orders (i) if you violate any of these Terms; (ii) for any other reason; or (iii) for no reason. Upon any such termination, your right to use the Site will immediately cease.
8. International Users
Our Site is controlled, operated, and administered from the United States of America. We make no representation that Content on the Site is appropriate or available for use at other locations outside the United States, and access to it is prohibited from territories where the Content or services or products available through the Site are illegal. You may not use the Site or export its Content or services or products in violation of United States export laws and regulations. If you access the Site from a location outside of the United States, you are responsible for compliance with all local laws if, and to the extent, local laws are applicable. We may ship to certain locations outside the United States and reserve the right to apply additional shipping and handling charges to any orders shipped outside the United States.
9. Links To Third-Party Websites
The Site may contain links to third-party websites or services and advertisements for third parties (collectively, the “Third Party Sites & Ads”). Such Third-Party Sites & Ads are not under our control, and we are not responsible for any Thirty Party Sites & Ads. We provide these Third-Party Sites & Ads only as a convenience and are not responsible for the content, services, or products on or available from those Third-Party Sites & Ads. You acknowledge sole responsibility for and assume all risk arising from your use of Third-Party Sites & Ads.
The inclusion of a hyperlink to Third Party Sites & Ads does not imply affiliation, endorsement, or adoption by HelloBiome of the Third-Party Sites & Ads or any services, products, or information contained therein.
10. Purchase And Use of Products and Services
10.1 Product Satisfaction and Return Policy
If you are not satisfied with a HelloBiome product, please contact us within 30 days of delivery, using the email address, specified in the CONTACT INFORMATION section of this document. You may request a HelloBiome credit redeemable automatically through your account for future purchases. If a product is deemed to be damaged, we may, at our discretion, provide you with a credit or a refund in an amount equal to the value of the damaged product. We reserve the right to reject requests deemed to be fraudulent.
If you refuse delivery of a product from us because you skipped or canceled the order within 30 days of that order, and you are able to provide documentary evidence (for instance, a time-stamped email of the request or an auto-confirmation email), we will process a Credit or a full refund (including any applicable delivery charges) as soon as practicable and, in any case, within 30 days of your cancelation request.
If you refuse delivery of a product from us for any reason, we will notify you within a reasonable period of time whether you are entitled to a credit or a refund (and, if so, the amount) by phone or email. If we determine that you are entitled to a credit or a refund, we will process such credit or refund within 30 days of communicating our decision to you. Refunds are processed using the same payment method that you used to pay for your purchase.
10.2 Product/Service Descriptions
We have taken reasonable precautions to ensure that all product/service descriptions, prices, and other Content on the Site are correct and fairly described. We have made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor or screen and other factors associated with the device you use to access the Site, we cannot guarantee that the depiction of any color as viewed by you through your monitor or screen will be accurate or that other Site content does not contain inadvertent mistakes or errors. By placing an order on this Site, you are making an offer to HelloBiome. Our acknowledgment of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. We reserve the right to not accept the offer if there has been a material error in the description of the product, or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise.
10.3 Online Purchases
If you wish to purchase any product or service made available through the Site (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant HelloBiome the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, Content, specifications, services, products, and prices of services and products described or depicted on the Site are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any services or products on the Site does not imply or warrant that these services or products will be available.
It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the receipt, possession, use, and sale of any item purchased from this Site. By placing an order, you represent that the services and products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) bar any User from making or completing any or all Transaction(s); and (iii) refuse to provide any User with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect at the time of the Transaction, including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
10.4 Order And Payment Information
If you use the Site or other means to purchase services or products, payment must be received by HelloBiome prior to our acceptance of an order, unless otherwise agreed to by us in advance. All our products are subject to sales tax, which will be applied to your order total. We may need to verify the information you provide before we accept an order and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is canceled or limited, we will refund you any payment made for the product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase. We expressly condition acceptance of your order on your agreement to these Terms.
We will add applicable shipping and handling fees to your charges, as stated in your order. We reserve the right to reject orders where the stated delivery address is outside the United States.
10.5 International Orders
We may, in our sole discretion, choose to accept orders for the purchase of services or products from Users residing outside the United States. The acceptance of such orders and the sale of such services or products are conditioned on the following:
- You agree that the purchase of any of our services or products by you, as a non-resident of the United States, will be (i) available to be picked up by you from our facilities in the United States via transportation you will pay for per Incoterms 2010, with all title risk and loss in the services or products passing to you in the United States, and (ii) for your own personal use only and not for further resale or distribution in any manner;
- You hereby expressly authorize and direct HelloBiome to load and ship the services or products purchased by you to your designated ship-to destination, and to contract on your behalf with a common carrier or courier company for that purpose;
- You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties, and import requirements from our facilities in the United States to your foreign ship-to destination; and
- The United Nations Convention on the International Sale of Goods will not apply to any purchase or sale, and we expressly opt out of such application.
We are not responsible for any injury or damage that may result from the purchase of services or products through distributors or retailers who are not authorized distributors or retailers of our services or products. We are not responsible for any injury or damage that may result from services or products purchased past their expiration date or those that have been altered or discontinued.
10.7 Auto-Renewal Programs
If you are purchasing our services or products and enrolling in one of our auto-renewal programs in which you have requested that we automatically provide services or products to you at regularly scheduled times (the “Program”), your membership in the Program will remain in effect until cancelled. If you sign up for the Program on the Site in connection with your purchases, the payment card or alternative payment method you provide will be automatically charged for the purchase price of the services or products, plus applicable tax, shipping, and handling charges.
You must provide current, complete, and accurate information for your shipping and billing accounts. You are responsible for ensuring this information is correct and must promptly update all information to keep your account current, complete, and accurate (for example, to reflect changes in shipping or billing address, credit card number, credit card expiration date, and security code). Shipments sent to the address of record are deemed complete upon shipment; we are not responsible for your failure to receive a shipment sent to your address of record in the event you have moved or for any other reason. You must promptly notify HelloBiome if your credit card or alternative payment method is canceled or no longer valid (for example, due to theft or loss). Changes to your account can be made by sending us an email to the address, specified in the CONTACT INFORMATION section of this document.
If you sign up for the Program, you will be charged regularly and automatically for, and delivered, ordered services or products until you cancel your participation in the Program. By participating in the Program, you agree that we may send you additional regularly scheduled shipments and charge you for the product(s), applicable taxes, and shipping and handling charges, WITHOUT OBTAINING ANOTHER PAYMENT AUTHORIZATION FROM YOU. These subsequent charges will be placed on the payment card or alternative payment method you provided when you enrolled in the Program or update thereafter. You agree that we will not be responsible in any manner for any overdraft charges, interest charges late or other fees, or damages (including consequential damages) you may incur as a result of charges placed on your payment card or alternative payment method.
THE AUTO-RENEWAL PROGRAM WILL REMAIN IN EFFECT UNTIL YOU CANCEL IT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN THE PROGRAM AND DISCONTINUE SHIPMENT OF FUTURE SERVICES OR PRODUCTS, YOU MAY DO SO BY CONTACTING HELLOBIOME USING CONTACTS, SPECIFIED IN THE CONTACT INFORMATION SECTION OF THIS DOCUMENT.
We may, in our sole discretion, terminate your participation in the Program at any time without notice to you. We reserve the right to refuse or discontinue the automatic provision of services or products to anyone at any time in our sole discretion.
10.8 Disclaimer Of Warranties
OUR SERVICES, PRODUCTS, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the services or products available on the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, INCLUDING ANY SERVICES OR PRODUCTS PROVIDED TO YOU.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES RELATING TO OUR SERVICES, PRODUCTS, OR CONTENT, THESE TERMS, AND YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY SERVICES OR PRODUCTS VIA THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR SERVICES OR PRODUCTS PURCHASED VIA THE SITE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM OF LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HELLOBIOME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. Intellectual Property
11.1 Right To User Content Posted by You
In the event you upload any User Content to the Site, we have the right to use any and all such elements of the Content in connection with and/or as part of our business, including, but not limited to, in connection with or in any advertising in any and all media, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and cinema commercials, videos, or on the Site in perpetuity throughout the world as we, in our sole discretion, see fit without further consent by, or payment to, you. By uploading User Content to the Site, you agree to grant HelloBiome the right to use your copyright in such User Content. We also have all rights, title, and interest in any and all results and proceeds from our use of the User Content to the extent permissible by law. We have the right to transfer our rights to use the User Content to any third party, including, but not limited to, any of our subsidiaries or affiliated companies.
We may alter, adopt, or edit the User Content and any further material created under these Terms, and market and exploit it entirely in our sole discretion. Upon request, you will furnish HelloBiome with any and all documentation, substantiation, or releases necessary to verify your compliance with these provisions. We are not obligated to make use of any of your User Content or exercise any of the rights granted by these Terms.
You are responsible for all your User Content. You represent and warrant that you own all of your User Content or you have all rights necessary to grant HelloBiome the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Site, nor any use of your User Content by HelloBiome on or through the Site, will infringe, misappropriate, or violate a third party’s intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law or regulation.
11.2 Copyrights And Trademarks
The Site, including all of the Content and organization, graphics, design, compilation, magnetic translation, digital conversion, software, services, and other matters related to same, is the sole and exclusive property of HelloBiome and protected by applicable copyright, trademark, other proprietary rights, and other laws of the United States and foreign countries. Unless expressly stated otherwise, we retain other proprietary rights in all Content and services, and products available through the Site.
Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written consent and permission of the respective copyright owner. You may not, without our express written permission or that of the respective copyright owner: (i) copy, upload, publish, post, submit, or transmit any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not: (i) sell, resell, or make commercial use of the Site, its Content, services, or products obtained through the Site; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site or its Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any of our patent, trademark, or copyright rights, or other proprietary rights of any third party.
Together with other logos and product names appearing on the Site, the following includes a partial list of our trademarks and/or registered trademarks in the United States and other countries: Dr. Elsa Jungman. All other trademarks not owned by HelloBiome that are made available by and through the Site are the property of their respective owners who may or may not be affiliated with, connected to, or sponsored by HelloBiome. These and all of our other trademarks may not be copied, imitated, or used, in whole or in part, without our prior written permission or that of the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Any other names and brands on the Site may be claimed as the property of others.
11.3 Intellectual Property, Copyright, And Exclusivity
Copyright in any manual, sales documentation, technical description, and other documents that may be supplied by HelloBiome under or in connection with your purchase(s) and any and all intellectual property rights, title, and interest in the formulation or design of HelloBiome’s services or products, or any part thereof, whether such formulation or design is registered or not, shall vest in HelloBiome absolutely. Any data, patent, copyright, proprietary right, confidentiality, know-how, trademark, or process with respect to HelloBiome’s services or products are the proprietary information (“Proprietary Information”) of HelloBiome and its third-party vendors (as the case may be). You agree that you shall not, without HelloBiome’s prior written consent, use or disclose the Proprietary Information to any third party for any reason other than that third party’s personal use of HelloBiome’s services or products. You also agree that you shall not use or provide HelloBiome’s products to any third-party or other entity to reverse engineer or disassemble HelloBiome’s products or any part thereof to create or derive any HelloBiome or third-party intellectual property.
11.4 DMCA/Copyright Policy
It is our policy to respect the copyright and intellectual property rights of others. We may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, we may terminate access by Users who appear to infringe the intellectual property or other rights of others.
We comply with the Digital Millennium Copyright Act (“DMCA”). If you believe we or any User of the Site has infringed your copyright in any material way, please notify HelloBiome, and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material you claim is infringing so that we may locate it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing or the law;
- a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
- that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues to us using the address and email, specified in the CONTACT INFORMATION section of this document.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any potentially infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove the applicable material along with that of the alleged infringer pending resolution of the matter. We have an absolute right to remove any such User Content or other material from the Site at our sole discretion at any time.
12.1 Limitations Of Liability
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER HELLOBIOME, OUR AFFILIATES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING SERVICES, PRODUCTS, OR CONTENT ON THE SITE WILL BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY – EVEN OUR OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH: (I) THE SITE; (II) THE USE OR INABILITY TO USE THE SITE; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE; (IV) THE PURCHASE OR USE OF ANY SERVICES OR PRODUCTS THROUGH THE SITE OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OF DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF WE OR OUR REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HELLOBIOME. ACCESS TO THE SITE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO HELLOBIOME FOR ANY SERVICES OR PRODUCTS SUPPLIED BY US THROUGH YOUR USE OF THE SITE OR OTHERWISE.
WE WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
The terms of this section survive any termination of these Terms.
12.2 Medical Disclaimer
The Content, statements, and other material made available on or through the Site relating to HelloBiome’s products: (i) are not intended to diagnose, treat, cure, or prevent any medical condition or disease; and (ii) are not in any way intended as medical advice or as a substitute for medical treatment. If you have a medical condition that may be affected by your use of any services or products offered on the Site, you should consult with your physician or other healthcare professional before using any product. If you have or suspect that you have a medical condition, promptly contact your healthcare provider. Never delay seeking or disregard professional medical advice because of something you have read on the Site. The Site is solely an online store for cosmetic and personal care products.
You will defend, indemnify, and hold harmless HelloBiome, our affiliates, and each of our and their respective officers, directors, employees, contractors, suppliers, representatives, and agents from any and all claims, demands, liabilities, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, that arise from or relate to: (i) your access to or use of the Site or Content; (ii) your User Content; (iii) violation of any applicable law that protects HelloBiome or our legal rights or those of any third party that your actions have damaged; (iv) your violation of these Terms or any applicable law, including, but not limited to, infringement by you of any intellectual property rights owned by HelloBiome or any third party; and (v) any and all activities that occur under or in connection with your account, username, and/or password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with HelloBiome in asserting any available defenses. YOU AGREE TO BE RESPONSIBLE FOR ALL SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
13. Dispute Resolution
13.1 Agreement To Arbitrate and Waiver of Class Actions and Class Arbitrations
You acknowledge and agree that both you and HelloBiome are waiving the right to a trial by jury or to participate as a plaintiff or class representative or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms.
We both agree that these Terms should be interpreted and enforced under the Federal Arbitration Act (9 U.S.C. §§ 1, et seq.) because they memorialize a transaction in interstate commerce. This section will survive termination of these Terms.
13.2 Arbitration Rules
The arbitration will be administered and governed by the Comprehensive or Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS), whichever is appropriate and in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267 (USA).
The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only.
13.3 Dispute Notice and Arbitration Process
Prior to initiating an arbitration proceeding, you must first send HelloBiome a written statement setting forth your name, address, and telephone number, the facts giving rise to the dispute, and the relief requested (“Dispute Statement”). The Dispute Statement to HelloBiome must be sent to the email address, specified in the CONTACT INFORMATION section of this document. If we are unable to resolve your claim within thirty (30) days, then either party that desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Procedures.
An arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes relating to HelloBiome’s services and products, as well as all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, the arbitrability of any claim, as well as any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is an IP Protection Action.
13.4 Arbitration Location and Procedure
Unless the parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then: (i) the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary; and (ii) if there is a hearing, you may choose whether to participate in person or by telephone. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Procedures. Subject to the JAMS Procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
13.5 Arbitrator’s Decision
The arbitrator’s decision will include the essential findings and conclusions of the law upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having competent jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer of Warranties,” and “Limitations of Liability” sections above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. HelloBiome will not seek and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
We will pay or (if applicable) reimburse you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or HelloBiome pursuant to the terms of this section.
13.7 Time Limit for Resolving Disputes
The parties agree that any cause of action either may have with respect to the Site or our services, products, and Content must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you must bring a claim. This means that if you wait longer than one (1) year to initiate arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.
The terms of this Dispute Resolution section survive any termination of these Terms.
13.8 Right To Opt-Out or Reject Future Changes to Dispute Resolution Section
You may elect to opt out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter to the HelloBiome address or by email, specified in the CONTACT INFORMATION section of this document within thirty (30) days of your first visit to and use of the Site that specifies your: (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt out consistent with the procedure set forth above, all other terms and conditions of these Terms will continue to apply. If you do not so opt-out, then the terms of this “Dispute Resolution” section will apply.
14. Governing Law
These Terms and any action or proceeding relating thereto will be governed by the laws of the State of California. If any provision or part-provision of these Terms is declared invalid, unlawful, void, or for any reason unenforceable, it will be deemed severable and will not affect the validity and enforceability of the remaining provisions of these Terms, which will be enforced to the maximum extent permissible.
15. Notice Required by California Law
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
The name, address, and email contact of the provider of this service are specified in the CONTACT INFORMATION section of this document. Complaints regarding services or products, or requests to receive further information regarding the use of this Site may be sent to the specified address or by email.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
We reserve the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site, you should review the current Terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" legend at the top of these Terms. Your continued use of the Site will constitute your acceptance of the then-current Terms; however, any material change to these Terms after your last usage of the Site will not be applied retroactively. Except for such material changes, the Terms that were in effect at the time any claim or dispute arose between you and HelloBiome will be applied.
Notwithstanding anything to the contrary in these Terms, we reserve the right, without notice and in our sole discretion, for any reason or no reason, to terminate your ability to use the Site and to block and prevent future access to and use of the Site. You agree that we will not be liable for any termination of your use of or access to the Site.
18. No Third-Party Beneficiaries
We and you are the only parties entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and HelloBiome. Notwithstanding the foregoing, the parties agree that the payment card networks are third-party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You also agree that if we assign, transfer, or subcontract any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.
19. General Terms
These Terms constitute the entire and exclusive understanding and agreement between HelloBiome and you regarding the Site, Content, services, and products that may be provided on the Site, and these Terms supersede and replace any and all prior oral or written understandings or agreements between you and HelloBiome regarding the Content, services, or products provided on the Site. If, for any reason, any provision of these Terms is deemed to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by HelloBiome under these Terms, including those regarding modifications to these Terms, will be given: (i) by HelloBiome via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date we transmit such notice.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of HelloBiome. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and HelloBiome, and you do not have any authority to create any obligation on our behalf.
20. Contact Information
If you have any questions about these Terms, please contact HelloBiome at:
|Mailing Address||ELSI Skin Health, Inc 181 2nd St, San Francisco, CA 94105 USA|
|Email if your request relates to the Dr. Elsa Jungman (*.dr-ej.com) products and Dr. Elsa Jungman microbiome test firstname.lastname@example.org|
|Email if your request relates to the HelloBiome (*.hellobio.me) products and services, as well as client-branded microbiome test websites (you may also use the contact information provided by the Client website).||email@example.com|