Terms of Service

Wabi-Sabi Botanicals, LLC. Terms of Service

Last Updated: January 1, 2021

 

Please read this Terms of Service Agreement (“Agreement”) carefully. This Agreement is a legal contract between you (“User”) and Wabi-Sabi Botanicals, LLC. (“Wabi-Sabi Botanicals”, “we” or “us”).

 

IF YOU SUBSCRIBE TO ANY SUBSCRIPTION WE MAY OFFER THROUGH THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT WABI-SABI BOTANICALS’ THEN-CURRENT FEE FOR SUCH SUBSCRIPTION UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 4.4 BELOW.

 

SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

 

 By accessing or using www.WabiSabiBotanicals.com (“Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

 

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

 

Subject to Section 13.8 of this Agreement, Wabi-Sabi Botanicals reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

 

  1. USE OF THE SERVICES AND WABI-SABI BOTANICALS PROPERTIES. The Website, the Services, and the information and content available on the Website and in the Services (as these terms are defined herein) (each, a “Wabi-Sabi Botanicals Property” and collectively, the “Wabi-Sabi Botanicals Properties”) are protected by copyright laws throughout the world.  Subject to the Agreement, Wabi-Sabi Botanicals grants you a limited license to reproduce portions of Wabi-Sabi Botanicals Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Wabi-Sabi Botanicals in a separate license, your right to use any and all Wabi-Sabi Botanicals Properties is subject to the Agreement.

 

1.1 Updates. You understand that Wabi-Sabi Botanicals Properties are evolving.  As a result, Wabi-Sabi Botanicals may require you to accept updates to Wabi-Sabi Botanicals Properties that you have installed on your computer or mobile device.  You acknowledge and agree that Wabi-Sabi Botanicals may update Wabi-Sabi Botanicals Properties with or without notifying you.  You may need to update third-party software from time to time in order to use Wabi-Sabi Botanicals Properties.

 

  1. Registration

 

2.1. Registering Your Account. In order to access certain features of Wabi-Sabi Botanicals Properties, you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).

 

2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Wabi-Sabi Botanicals Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Wabi-Sabi Botanicals Properties by minors.  You may not share your Account or password with anyone, and you agree to (y) notify Wabi-Sabi Botanicals immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Wabi-Sabi Botanicals has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Wabi-Sabi Botanicals has the right to suspend or terminate your Account and refuse any and all current or future use of Wabi-Sabi Botanicals Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account at any given time.  Wabi-Sabi Botanicals reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use Wabi-Sabi Botanicals Properties if you have been previously removed by Wabi-Sabi Botanicals, or if you have been previously banned from any of Wabi-Sabi Botanicals Properties

 

2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Wabi-Sabi Botanicals.

 

  1. Purchasing Products.

 

3.1 Product Descriptions. Certain products available on our Website may be available exclusively online through the Website. These products may have limited quantities. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. 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 through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this Website is void where prohibited.

 

3.2 Order Acceptance. Each part of any order that you submit to Wabi-Sabi Botanicals constitutes an offer to purchase. If you do not receive a message from Wabi-Sabi Botanicals confirming receipt of your order, please contact us at hello@wabisabibotanicals.com before re-entering your order. Wabi-Sabi Botanicals’ confirmation of receipt of your order does not constitute Wabi-Sabi Botanicals’ acceptance of your order. Wabi-Sabi Botanicals is only deemed to have accepted your order once the product(s) you ordered have been shipped (the “Product”).

 

3.3 Order Issues. Although we strive to accept all valid orders, Wabi-Sabi Botanicals reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. 

 

3.4 Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, Wabi-Sabi Botanicals reserves the right to cancel your order and provide you a refund for the amount paid for the Product.

 

3.5 Return Policy. Wabi-Sabi Botanicals does not offer exchanges or refunds on any products due to general dissatisfaction, if a product does not resonate with your skin, and/or on used products. If your package arrives to you damaged and/or broken, we are happy to replace it for you. Please retain all original packaging and send us an email with photos to hello@wabisabibotanicals.com within 24 hours of receiving your order. We may ask you to send us the broken item in which case, Wabi-Sabi Botanicals will provide a pre-paid return shipping label.

 

3.6 Restrictions on Resale. To protect the intellectual property rights of Wabi-Sabi Botanicals and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Wabi-Sabi Botanicals reserves the right to decline any order that we deem to possess characteristics of reselling.

 

  1. Fees and Purchase Terms.

 

4.1 You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account. You also agree to pay all applicable taxes. To make an order through the Services, you must provide valid payment information. By providing your payment information, you agree that Wabi-Sabi Botanicals is authorized to immediately invoice your Account for all fees and charges due and payable to Wabi-Sabi Botanicals hereunder and that no additional notice or consent is required. You agree to immediately notify Wabi-Sabi Botanicals of any change in your billing address, debit card, credit card, or other relevant payment account information.  Wabi-Sabi Botanicals uses PayPal Holdings, Inc. (“PayPal”), Stripe, Inc. ("Stripe") and/or Shopify, Inc. (“Shopify”) as a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services).  By using the Services, you hereby consent and authorize Wabi-Sabi Botanicals and PayPal, Stripe and/or Shopify to share any information and payment instructions you provide to complete your transactions. You agree to immediately notify Wabi-Sabi Botanicals of any change in your payment information by sending an e-mail to hello@wabisabibotanicals.com. Wabi-Sabi Botanicals reserves the right at any time to change its prices and billing methods.

 

4.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for product subscriptions or any other subscription we may offer through the Services (each, a “Service Subscription Fee”) at the time you create your Account and subscribe to the Subscription (each, a “Service Commencement Date”). Except as set forth in any separate refund policy posted on the Services, all fees are non-refundable. No contract will exist between you and Company for the Services until Wabi-Sabi Botanicals accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

 

4.3 The payments required under Section 4 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Wabi-Sabi Botanicals determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Wabi-Sabi Botanicals shall collect such Sales Tax in addition to the payments required under Section 4 of this Agreement.  If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Wabi-Sabi Botanicals, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Wabi-Sabi Botanicals for any liability or expense Wabi-Sabi Botanicals may incur in connection with such Sales Taxes.  Upon Wabi-Sabi Botanicals’ request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

4.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Wabi-Sabi Botanicals’ then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date, by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.  If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Wabi-Sabi Botanicals at hello@wabisabibotanicals.com or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize Wabi-Sabi Botanicals to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if Wabi-Sabi Botanicals does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Wabi-Sabi Botanicals may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

4.5 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Wabi-Sabi Botanicals communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.

 

  1. OWNERSHIP.

 

5.1 Wabi-Sabi Botanicals Properties. You agree that Wabi-Sabi Botanicals and its suppliers own all rights, title and interest in Wabi-Sabi Botanicals Properties.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Wabi-Sabi Botanicals Properties.

 

5.2 Trademarks. All related graphics, logos, service marks and trade names used on or in connection with any Wabi-Sabi Botanicals Properties or in connection with the Services are the trademarks of Wabi-Sabi Botanicals and may not be used without permission in connection with your or any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in Wabi-Sabi Botanicals Properties are the property of their respective owners.

 

5.3 Other Content. You agree that you have no right, title, or interest in or to any Content that appears on or in Wabi-Sabi Botanicals Properties, except Your Content as expressly described herein.

 

5.4 Feedback. You agree that submission of any ideas, suggestions, documents, comments, and/or proposals to Wabi-Sabi Botanicals through its suggestion or otherwise (collectively “Feedback”) is at your own risk and that True Botanicals has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Wabi-Sabi Botanicals a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Wabi-Sabi Botanicals Properties and/or Wabi-Sabi Botanicals’ business.

 

5.5 Ratings, Reviews, and Testimonials. The Services allow you to post reviews, ratings and comments about Wabi-Sabi Botanicals Products (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are Your Content or the Content of other users and such Content is not endorsed by Wabi-Sabi Botanicals nor does such Content represent the views of Wabi-Sabi Botanicals. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Wabi-Sabi Botanicals shall have the right, but not the obligation to monitor or review any Reviews at any time. Wabi-Sabi Botanicals reserves the right to refuse to post or remove any material submitted or posted in any Review. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with Wabi-Sabi Botanicals; (ii) you will not provide a rating or review for Wabi-Sabi Botanicals if you have an employment relationship or other affiliation with Wabi-Sabi Botanicals; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If Wabi-Sabi Botanicals determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Content without notice. The Services also allow you to submit photographs of yourself before you started using Wabi-Sabi Botanicals Products (“Before Photographs”), as well as photographs of yourself after using Wabi-Sabi Botanicals Products for a period of time (“After Photographs”) (together, the “Photographs”). Such Photographs are considered Your Content. By submitting your Reviews and Photographs, you grant Wabi-Sabi Botanicals and its agents the worldwide, perpetual (even after termination of this Agreement) irrevocable, royalty-free, non-exclusive and sub-licensable right to use, reproduce, copy, publish, display, distribute, perform, translate, adapt, modify, and otherwise exploit the Photographs, to display your name and likeness in connection therewith, and to incorporate the Photographs in other works in any and all markets and media, whether now known or hereafter discovered, without any additional approval or consideration, in connection with advertising and marketing Wabi-Sabi Botanicals and the Wabi-Sabi Botanicals Products and to otherwise provide or improve the Products and Services. Photographs submitted by you must not violate any applicable laws, rules, and regulations. Wabi-Sabi Botanicals shall have no obligation to copy, publish, display, or otherwise exploit the Reviews or Photographs.

 

  1. THIRD-PARTY SERVICES. Wabi-Sabi Botanicals Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left Wabi-Sabi Botanicals Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites are not under the control of Wabi-Sabi Botanicals. Wabi-Sabi Botanicals is not responsible for any Third-Party Websites. Wabi-Sabi Botanicals provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or any product or service provided in connection therewith.  You use all links in Third-Party Websites at your own risk. When you leave our Website, the Agreement and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

  1. INDEMNIFICATION. You agree to indemnify and hold Wabi-Sabi Botanicals, its affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “True Botanicals Party” and collectively, the “True Botanicals Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Wabi-Sabi Botanicals Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations.  Wabi-Sabi Botanicals reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Wabi-Sabi Botanicals in asserting any available defenses.  This provision does not require you to indemnify any of the Wabi-Sabi Botanicals Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Wabi-Sabi Botanicals Properties.

 

  1. DISCLAIMER OF WARRANTIES

 

8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF WABI-SABI BOTANICALS PROPERTIES IS AT YOUR SOLE RISK, AND WABI-SABI BOTANICALS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WABI-SABI BOTANICALS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.

  1. WABI-SABI BOTANICALS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) WABi-SABI BOTANICALS PROPERTIES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (2) YOUR USE OF WABI-SABI BOTANICALS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF WABI-SABI BOTANICALS PROPERTIES WILL BE ACCURATE OR RELIABLE.
    B. ANY CONTENT ACCESSED THROUGH WABI-SABI BOTANICALS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS WABI-SABI BOTANICALS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
    C. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WABI-SABI BOTANICALS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
    D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WABI-SABI BOTANICALS OR THROUGH WABI-SABI BOTANICALS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
    Certain state laws do not allow limitations on implied warranties. If these laws apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you, and you might have additional rights.

 

8.2 No Liability for Content. THE SERVICE CONTAINS OPINIONS AND VIEWS OF WABI-SABI BOTANICALS. WABI-SABI BOTANICALS DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT POSTED BY WABI-SABI BOTANICALS THAT ARE MADE AVAILABLE THROUGH THE SERVICES.

 

8.3 No Liability for Conduct of Third Parties or Products. YOU ACKNOWLEDGE AND AGREE THAT WABI-SABI BOTANICALS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WABI-SABI BOTANICALS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

 

8.4 Professional Advice Disclaimer.

  1. THE CONTENT AND INFORMATION LOCATED ON THE WABI-SABI BOTANICALS PROPERTIES ARE DESIGNED FOR EDUCATIONAL AND INFORMATIONAL, PURPOSES ONLY AND IS NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE WABI-SABI BOTANICALS PROPERTIES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES.
  2. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT AVAILABLE ON WABI-SABI BOTANICALS PROPERTIES. THE USE OF INFORMATION AND CONTENT PROVIDED THROUGH WABI-SABI BOTANICALS PROPERTIES IS SOLELY AT YOUR OWN RISK.
  3. NOTHING STATED OR POSTED ON THE WABI-SABI BOTANICALS PROPERTIES OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE INCLUDES, WITHOUT LIMITATION, PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
  4. WABI-SABI BOTANICALS PROPERTIES ARE CONTINUALLY UNDER DEVELOPMENT AND WABI-SABI BOTANICALS MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE.

 

  1. LIMITATION OF LIABILITY

 

9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WABI-SABI BOTANICALS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

9.2 Cap on Liability. IF YOU HAVE PURCHASED ANY PRODUCTS FROM WABI-SABI BOTANICALS THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE WABI-SABI BOTANICALS INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO WABI-SABI BOTANICALS BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES. IF YOU HAVE NOT PURCHASED ANY PRODUCTS FROM WABI-SABI BOTANICALS THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE WABI-SABI BOTANICALS INDEMNITEES ARE LIABLE TO YOU EXCEED ONE HUNDRED DOLLARS ($100).

 

9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WABI-SABI BOTANICALS AND YOU.

 

9.4 Exclusions. The laws of some states do not allow for the exclusion or limitation of certain damages. If these laws not apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you and you might have other rights. 

 

  1. Remedies.

 

10.1 Violations. If Wabi-Sabi Botanicals becomes aware of any possible violations by you of the Agreement, Wabi-Sabi Botanicals reserves the right to investigate such violations.  If, as a result of the investigation, Wabi-Sabi Botanicals believes that criminal activity has occurred, Wabi-Sabi Botanicals reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Wabi-Sabi Botanicals is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Wabi-Sabi Botanicals Properties, including Your Content, in Wabi-Sabi Botanicals’ possession in connection with your use of Wabi-Sabi Botanicals Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Wabi-Sabi Botanicals, its Users or the public, and all enforcement or other government officials, as Wabi-Sabi Botanicals in its sole discretion believes to be necessary or appropriate.

 

10.2 Breach. In the event that Wabi-Sabi Botanicals determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Wabi-Sabi Botanicals Properties, Wabi-Sabi Botanicals reserves the right to:

  1. A) Warn you via e-mail (to any e-mail address you have provided to Wabi-Sabi Botanicals) that you have violated the Agreement;
  2. B) Delete any of Your Content provided by you or your agent(s) to Wabi-Sabi Botanicals Properties;
  3. C) Discontinue your registration(s) with any of Wabi-Sabi Botanicals Properties, including any Services or any Wabi-Sabi Botanicals community;
  4. D) Discontinue your subscription to any Services;
  5. E) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
  6. F) Pursue any other action which Wabi-Sabi Botanicals deems to be appropriate.

 

  1. TERM AND TERMINATION.

 

11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Wabi-Sabi Botanicals Properties, unless terminated earlier in accordance with the Agreement.

 

11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Wabi-Sabi Botanicals Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Wabi-Sabi Botanicals Properties, unless earlier terminated in accordance with the Agreement.

 

11.3 At its sole discretion, Wabi-Sabi Botanicals may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Wabi-Sabi Botanicals reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Wabi-Sabi Botanicals for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 5 through 9, 11, 13, and 14.

 

  1. International Users. The Services are controlled and offered by Wabi-Sabi Botanicals from its facilities in the United States of America. Wabi-Sabi Botanicals makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

 

  1. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Wabi-Sabi  Botanicals and limits the manner in which you can seek relief from us.

 

13.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Wabi-Sabi Botanicals, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Wabi-Sabi Botanicals may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

 

13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at: Attn: Arbitration, 595 Broadway Street, Gilroy, CA 95020 or hello@wabisabibotanicals.com The arbitration will be conducted by an established alternative dispute resolution provider. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Wabi-Sabi Botanicals.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  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 us.

 

13.4 Waiver of Jury Trial. YOU AND WABI-SABI BOTANICALS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Wabi-Sabi Botanicals are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

 

13.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California.  All other claims shall be arbitrated.

 

13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: hello@wabisabibotanicals.com within 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Wabi-Sabi Botanicals username (if any), the email address you used to set up your Wabi-Sabi Botanicals account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

 

13.7 Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

 

13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Wabi-Sabi Botanicals.

 

13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Wabi-Sabi Botanicals makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Wabi-Sabi Botanicals at hello@wabisabibotanicals.com.

 

  1. GENERAL PROVISIONS.

 

14.1 Electronic Communications. The communications between you and Wabi-Sabi Botanicals may take place via electronic means, whether you visit Wabi-Sabi Botanicals Properties or send Wabi-Sabi Botanicals e-mails, or whether Wabi-Sabi Botanicals posts notices on Wabi-Sabi Botanicals Properties or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Wabi-Sabi Botanicals in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Wabi-Sabi Botanicals provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

 

14.2 Release. You hereby release Wabi-Sabi Botanicals Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Wabi-Sabi Botanicals Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Wabi-Sabi Botanicals Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Wabi-Sabi Botanicals Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.

 

14.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Wabi-Sabi Botanicals’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

 

14.4 Force Majeure. Wabi-Sabi Botanicals shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

 

14.5 Governing Law. This Agreement and any action related thereto shall be governed and interpreted by and under the laws of the State of California, without regard to conflicts of law provisions. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Wabi-Sabi Botanicals agree that the exclusive jurisdiction of any dispute arising out of, or relating to, this Agreement or any dispute arising out of, or relating to, this Agreement or services provided in connection therewith shall be in the state and federal courts located in Santa Clara County, California.

 

14.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Wabi-Sabi Botanicals Properties, please contact us at hello@wabisabibotanicals.com. We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

 

14.7 Where Wabi-Sabi Botanicals requires that you provide an e-mail address, you are responsible for providing Wabi-Sabi Botanicals with your most current e-mail address. In the event that the last e-mail address you provided to Wabi-Sabi Botanicals is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Wabi-Sabi Botanicals’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Wabi-Sabi Botanicals to the email address above. Such notice shall be deemed given when received by Wabi-Sabi Botanicals.

 

14.8 Waiver. No waiver of any provision herein shall be valid unless in writing and signed by an authorized representative of both you and Wabi-Sabi Botanicals. Wabi-Sabi Botanicals’ failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.

 

14.9 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.

 

14.10 Export Control. You may not use, export, import, or transfer Wabi-Sabi Botanicals Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Wabi-Sabi Botanicals Properties, and any other applicable laws.  In particular, but without limitation, Wabi-Sabi Botanicals Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Wabi-Sabi Botanicals Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Wabi-Sabi Botanicals Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products and services provided by Wabi-Sabi Botanicals are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Wabi-Sabi Botanicals products or services either directly or indirectly, to any country in violation of such laws and regulations.

 

14.11 Entire Agreement. This Agreement is the entire and exclusive agreement between the parties, and it supersedes all previous communications, representations or agreements, either oral or written, between them with respect to this subject matter. No representations or statements of any kind made by any affiliate of Wabi-Sabi Botanicals, which are not included in this Agreement, shall be binding on Wabi-Sabi Botanicals or its affiliates.

 

  1. WABI-SABI BOTANICALS REFER-A-FRIEND PROGRAM

 

As a Refer-a-Friend member (a “Referrer”), you are subject to Wabi-Sabi Botanicals Terms of Use and Wabi-Sabi Botanicals Privacy Policy (both available on our website), as well as the following additional Terms & Conditions for Wabi-Sabi Botanicals Refer-a-Friend program ("Program"):

 

15.1 Qualified Referral. A Qualified Referral is defined as a purchase made at www.WabiSabiBotanicals.com by a person (a "Referred Customer") who arrives to our website by clicking your Refer-a-Friend program link. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals. 

 

15.2 Referred Customer. The Referred Customer and the Referrer cannot be the same person (for example, by using a different email address). The Referred Customer must be a “new” customer who has never made a purchase with Wabi-Sabi Botanicals.

 

15.3 Referral Rewards. For you to earn referral rewards as a Referrer, the Referred Customer must complete an order greater than $1 in total value, minus all fees including taxes, discounts, shipping, returns, chargebacks, fraudulent payments, and/or other 3rd party fees.

 

15.4 Reward Payments. Rewards are payable in increments. Increments may vary. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.

 

15.5 Eligibility. Eligibility is limited to individuals only. Wabi-Sabi Botanicals Refer-a-Friend Program cannot be used by businesses for affiliate lead generation as determined in Wabi-Sabi Botanicals sole discretion.

 

15.6 No Spam. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from Wabi-Sabi Botanicals Refer-a-Friend program.

 

15.7 Right to Close Accounts. Wabi-Sabi Botanicals reserves the right to close the account(s) of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the Wabi-Sabi Botanicals Refer-a-Friend program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.

 

15.8 Right to Cancel Program or Change Terms. Wabi-Sabi Botanicals reserves the right to cancel the Refer-a-Friend Program or to change these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time. 

 

 

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.