Last updated: 8/27/2018
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PLACING AN ORDER, WHETHER BY PHONE, ONLINE OR VIA ANOTHER ACCEPTED METHOD FOR PLACING ORDERS, OR OTHERWISE USING OR RELYING ON THIS WEBSITE.
This Website’s Terms & Conditions contains a choice of law provision. If you are accessing this Website outside of the United States, the laws and regulations of your country of access do not govern this agreement or your access to the Website.
Your purchase of a GHW product or service and/or use of this Website shall be deemed to constitute your consent to be bound by the terms of this Agreement and shall be enforceable in the same way as if you had signed this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE DO NOT PLACE AN ORDER FOR A PRODUCT OR SERVICE OR USE THIS WEBSITE. THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED IN SECTION 20 BELOW) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THE MANDATORY ARBITRATION AGREEMENT, SECTION 20 BELOW DESCRIBES THE OPT-OUT PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS A MEMBER OF A CLASS ACTION.
1. Who is Eligible to Use the Website or Purchase a GHW Product or Service?
This Website is intended for adults (age 18 or older). In order to use the Website, you must be (a) 18 years or older and have the legal capacity to enter into a binding contract with us; or (b) 13 years or older and if purchasing products or services, your parent or guardian consents to the Agreement and your parent or guardian has the legal capacity to enter into an Agreement with us. The Website is not intended for children under the age of 13 and no person under the age of 13 may use the Website. If you use the Website, you are affirming that you are at least 13 years old.
2. Sharing Your Content
Subject to the limitations set forth herein, you may upload any photographs, comments, video clips, reviews and other communications and content to the Website (“Your Content”). By posting or submitting Your Content you grant GHW a non-exclusive, royalty- free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content, and the name submitted in connection with such content, throughout the world in any media now known or hereafter conceived. GHW is free to use any ideas, concepts or know-how contained in Your Content for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products that use such information.
You represent and warrant that (a) you own or otherwise control all of the rights to Your Content; (b) that Your Content is accurate; (c) that use of Your Content does not violate this Agreement and will not cause injury to any person or entity; and (d) that you will indemnify GHW for all claims relating to Your Content.
We will not be responsible or liable to you or to any third party for the content or accuracy of Your Content. GHW has the right, but not the obligation, to monitor and edit or remove any activity or content for any reason and without notice. GHW takes no responsibility and assumes no liability for Your Content or for any of Your Content posted by a third party.
3. Your Use of the Website
You must only use the Website for lawful purposes and you must not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Website. You may not (without our prior written consent):
- copy, reproduce, rent, lease, loan or sell content retrieved from the Website;
- modify, distribute or re-post any content on the Website for any purpose; or
- use the content of the Website for any commercial purpose whatsoever.
When using the Website, you further agree:
- not to disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or an affiliated or linked Website;
- not to disrupt or interfere with any other user’s enjoyment of the Website and affiliated or linked websites;
- not to upload, post or otherwise transmit through or on the Website any viruses or other harmful, disruptive or destructive files;
- not to use, frame or utilize framing techniques to enclose any GHW trademark, logo or other proprietary information (including the images found on the Website or on any GHW social media page that links to the Website, the content of any text, or the layout/design of any page or form contained on a Website page) without the GHW’s written consent;
- not to reverse engineer or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.
- not to use meta tags or any other “hidden text” utilizing a GHW company name, trademark or product name without GHW’s written consent;
- not to deep-link to the Website without the company’s written consent;
- not to use a false identity or an identity of another person on the Website, allow any person besides yourself to use your account information to access the Website or use or share another party’s information on the Website;
- not to collect or store personal data about others;
- not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
- to be bound by the company’s submission policies, including that: (i) any product, service, or idea you submit to any GHW company via this site or other site wherein your submission will not be held in confidence by GHW and is not proprietary, (ii) GHW may use the submission, and any aspect thereof for any purposes in GHW’s sole discretion; and (iv) that GHW owes no duties or obligations with respect to you or the submission you made; and
- to comply with all applicable laws regarding your use of the Website.
4. Our Intellectual Property Rights and the Intellectual Property Rights of Others
You acknowledge that content available through the Website or other pages we operate, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, images, and videos and content provided by suppliers, sponsors, or third-party advertisers (“Intellectual Property Rights”), is protected by copyright, trademark, patent, or other proprietary rights and laws. You are hereby granted a non-exclusive, non- transferable, revocable, limited license to view, copy and print content retrieved from the Website for the sole purpose of placing an order via the Website, provided that you do not remove, alter or obscure the Intellectual Property Right notice or other notices displayed on or embedded in the content. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of GHW company’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.
5. Information is not Intended to Provide Medical or HealthCare Diagnosis Advice or Treatment
GHW, ITS AGENTS AND REPRESENTATIVES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. WHILE WE SEEK TO KEEP THE INFORMATION ON THE WEBSITE ACCURATE AND UP-TO-DATE, GHW CANNOT GUARANTEE, AND SHALL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY OR TIMELINESS OF ANY INFORMATION AVAILABLE ON THE WEBSITE.
6. No Warranty; Disclaimer
THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GHW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. GHW DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET ANY REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. GHW MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, THE PRODUCTS OR SERVICES OFFERED ON THE WEBSITE OR AS TO THE ACCURACY, QUALITY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY GHW WEBSITE, INCLUDING BUT NOT LIMITED TO INFORMATION OBTAINED THROUGH ANY LIVE CHAT OR STATIC OR DYNAMIC CONTENT. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GHW OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GHW OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7. Links to third party websites
8. Product or Services available on or through the Website
GHW reserves the right, without notice, to discontinue products or services or modify specifications and prices on products or services without incurring any obligation to you. GHW takes reasonable steps in an effort to insure that the prices set forth on the Website, or provided by telephone are correct, and to accurately describe and display the items available on the Website. However, when ordering products or services, please note that GHW does not warrant that product or service descriptions are accurate, complete, current, or error-free or that packaging will match the actual product or service that you receive. If any item or service described on the Website or via telephone is not as described when you receive it or the packaging on the Website does not match what you receive, your sole remedy is to return it to us in an unused/unopened and undamaged condition in accordance with the Return Policy available on the Website or by calling a customer care professional at the telephone number posted on the Website. GHW’s descriptions of, or references to, products or services not owned by GHW are not intended to imply endorsement of that product, or constitute a warranty by GHW unless expressly stated on the Website. Notwithstanding the foregoing, in the case of a material change in the terms of an automatic renewal program that you have accepted, GHW will provide you with a notice of the material change and information regarding how to cancel the program.
9. Pricing Errors and Product or Service Unavailability
PPrices, availability and other purchase terms are subject to change at any time and generally without notice. We make every effort to provide accurate pricing information and to insure product or service availability, however, GHW reserves the right to revoke any offer to correct errors, inaccuracies or omissions, including after receiving an order, after an order has been submitted, confirmed or after your credit card has been charged. If your order is canceled because of an error, your credit card will be refunded the full amount of your order. Please allow for one full billing cycle to complete the refund process.
10. Order Placement and Acceptance
If you order a product or service, payment must be received by GHW before your order is accepted. GHW may require additional information regarding your order if any required information was missing or inaccurate and may cancel or limit an order any time after it has been placed.
Your order, whether by phone, online or by another order method, is conditioned on you accepting this Agreement. Once we receive your authorized order and a form of payment has been received, we will promptly process your order for shipment or delivery. All items and services are subject to availability. We will notify you if any item or service order is not available, the expected availability date and may offer you an alternative product or service. If the availability of any product or service is delayed and you do not wish to substitute the product or service, upon your request, we will cancel your order and if previously charged, your credit card will be refunded.
GHW does not accept orders from dealers, wholesalers or customers who are resellers or intend to resell items offered on the Website. If GHW discovers that you are placing orders with the intent to resell items offered on the Website, on the telephone or any other platform we will immediately cancel your order, suspend or terminate your account and, at our option, pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, GHW will report you to federal, state and/or local enforcement authorities.
Unless otherwise stated, GHW will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed order. The product will only be shipped following authorization of the monthly billing amount to your EFT/credit card information provided at the time of your initial order. Although GHW may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. You further understand that product or service availability may be limited and particular products or services may not be available for immediate delivery. If your order will be delayed GHW will contact you at the e-mail, phone or street address you provided when placing your order. If GHW is unable to contact you or you contact GHW to cancel your order, GHW will cancel the order and refund the amount charged. GHW shall not be liable for any loss, damage, cost or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by GHW. The risk of loss and title for such items will pass to you upon our delivery to any third party carrier. GHW reserves the right to reject orders where the stated delivery address is outside the United States.
You may cancel your EFT/credit card authorization by notifying us at least ten (10) days prior to the next billing cycle, which will result in no further billing and shipments of product. Cancellation will only take effect after we have had sufficient time to allow us and our financial institution, using commercially reasonable (but not extraordinary) efforts to act on this notice. For additional information on products or services and for all of your customer needs, please call us toll-free at 1-888-TOTALEE (868-2533) during our regular business hours Monday thru Friday 9:00 AM to 6:00 PM EST.
12. Payment Information
When ordering products or services through the Website, by telephone or otherwise, you agree to provide only truthful, accurate, current and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or information you are authorized to use and provide to us for purposes of placing an order. GHW reserves the right to cancel any order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent or incomplete payment information to GHW or for any other reason that we, in our sole discretion, believe appropriate. You agree that your placement of an order on or through this Website is sufficient to satisfy any applicable Statute of Frauds and no further writing is required.
13. Automatic Shipment Terms
By placing an order online, by telephone or other order method as part of an automatic renewal program YOU CONSENT TO CHARGES BEING AUTOMATICALLY MADE TO YOUR CREDIT OR DEBIT CARD FOR SUBSEQUENT SHIPMENTS AND YOUR PARTICIPATION IN THE PROGRAM SHALL BE IN EFFECT UNTIL IT IS CANCELED BY YOU.
IF YOU PARTICIPATE IN AN AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH SHIPMENT WILL BE AUTOMATICALLY PROCESSED AT THE SCHEDULED TIME OF EACH SHIPMENT OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND AGREEMENT TO PARTICIPATE IN THE PROGRAM. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN AN AUTOMATIC RENEWAL PROGRAM, YOU MAY DO SO AT ANY TIME BY CONTACTING A CUSTOMER CARE PROFESSIONAL VIA THE CONTACT INFORMATION PROVIDED ON THE WEBSITE.
You agree that these Terms & Conditions, which are available on the Website and can be readily accessed, downloaded and/or printed by you, shall constitute an acknowledgment of the terms of GHW’s automatic renewal program, cancellation policy and information regarding how to cancel the program in a manner that is capable of being retained by you.
We may, in our sole discretion, terminate the program or your participation in the program at any time and will provide you with notice of same. You are obligated to provide current, complete, and accurate information for your account. You are responsible for updating all information, including credit card or payment information, to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid (e.g., loss or theft) or your shipment may be delayed or cancelled. Changes to such information can be made by contacting a customer care professional. Please see the Website for information on how to contact a customer care professional. If you participate in an automatic shipment program using a credit card and your credit card fails to process for a subsequent shipment, GHW may contact you for alternate payment information. If you fail to pay for any product or service received, your account may be sent for collection.
14. United States & Canada Return & Refund Policy
If you accessed this Website or made your first product purchase from the United States & Canada and for any reason you are not completely satisfied with your first purchase please refer to the terms of this Website’s Return Policy available at Return Policy . If you need additional assistance, please contact our Customer Care Department at 1-888-TOTALEE (868-2533).
If you participate in an automatic shipment program, you may cancel your EFT/credit card authorization by notifying us at least ten (10) days prior to the next billing cycle, if any, which will result in no further billing and shipments of product. Cancellation will only take effect after we have had sufficient time to allow us and our financial institution, using commercially reasonable (but not extraordinary) efforts to act on this notice. For additional information on products or services and for all of your customer needs, please call us toll-free at 1-888-TOTALEE (868-2533) during our regular business hours Monday thru Friday 9:00 AM to 6:00 PM EST.
15. Electronic Documents and Signatures
All information communicated on the Website is considered an electronic communication. When you communicate with GHW through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You further acknowledge and agree that by clicking on a button labeled “SUBMIT”, “BUY NOW”, “PURCHASE”, “ORDER NOW”, “I ACCEPT”, “I AGREE” or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitutes your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes (and any revisions or amendments thereto). YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records or to payments or the granting of credits by other than electronic means.
16. Communicating with GHW Companies
You understand that all telephone calls, live chats and other communications such as personal messaging or social media posts to or from GHW are monitored and recorded and YOU CONSENT TO SUCH MONITORING AND RECORDING.
You verify that any contact information provided to GHW is true and accurate. You further verify that you are the account subscriber or that you own or are an authorized user of any telephone numbers, email addresses, etc. that you provide to GHW. You further agree that GHW and/or its agents may contact you at any telephone numbers, email addresses, etc. that you provide to GHW and/or its agents, including via text and/or an automatic telephone dialing system or artificial or prerecorded voice, for any purpose, including service or marketing, even if your telephone number is on a corporate, state or National Do Not Call Registry. You understand that you are not required to provide such consent as a condition of receiving any good or service, and that such communications may be made by or on behalf of GHW. You acknowledge that you may incur a charge for these communications by your telephone or internet carrier and that GHW will not be responsible for these charges.
GGHW may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses, phone numbers or other communication accounts provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide GHW notice within 30 days of any change to your contact information by writing to 4150 SW 28th Way, Fort Lauderdale, FL 33312, Attention: Customer Care or emailing [email protected]. Your consent to this communications provision is not required to make any purchase with GHW.
17. Limited Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL GHW, ITS SUPPLIERS, REPRESENTATIVES, AFFILIATES OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS INCLUDES WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE RESULTING FROM (A) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; (B) THE USE OF, OR THE INABILITY TO USE, ITEMS OR SERVICES PURCHASED ON OR THROUGH THE WEBSITE OR THROUGH THE TELEPHONE; OR (3) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR ITEMS.
You agree to indemnify and hold harmless GHW and all directors, officers, employees, representatives, agents, contractors, co-branders, suppliers and affiliates from and against any and all liability, losses, claims, demands, disputes, damages and costs of any kind including, without limitation, reasonable attorneys’ fees and costs of litigation resulting from or in any way connected with (i) your use of the Website; (ii) information you submit or transmit through the Website; (iii) privacy, tort or other claims (e.g., claims under the Federal Telephone Consumer Protection Act or its state law equivalent) relating to the provision of personal information (e.g., telephone number) to GHW that is not owned by you, in contravention of this Agreement; or (iv) your breach of this Agreement.
19. Termination, Suspension, Revision of Website
You agree that GHW may, in its sole discretion and at any time, revise, terminate or suspend its operation of the Website or your use of the Website, without prior notice to you, for any reason. You further agree that GHW shall not be liable to you or to any third party for the consequences of such termination, suspension or revision. In the event of any change to your use of or access to the Website, you agree that the provisions of the Agreement regarding protection of intellectual property rights and license, indemnification and disclaimer regarding information provided on the Website, disclaimer of warranties with respect to use of the Website, limitation on GHW’s liability, and pre-dispute, mandatory binding arbitration and class action waiver shall survive any such termination, suspension or revision.
20. Pre-Dispute, Mandatory Binding Arbitration and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Arbitration is a manner of resolving a “Claim” without filing a lawsuit. “Claim” means any dispute between you, GHW (or its affiliates, including as defined above, or agents or representatives) or any involved third party relating to your account, your use of the Website, your relationship with GHW or these Terms & Conditions. This includes any and all Claims that arise from or relate in any way to your use of the products or services, your attempted use of the products or services, the use of the Website and any act or omission by GHW or any third party related to your use or attempted use of the products or services. You, GHW or any involved third party may pursue a Claim. GHW agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against GHW. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This includes Claims based on contract, tort, equity, statute, or otherwise, as well as Claims regarding the scope and enforceability of this provision. It includes all Claims by or against you, GHW and/or any affiliated person, company and/or agent. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
As an exception to binding arbitration, you and GHW both retain the right to pursue, in a small claims court, any Claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. GHW will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court, so long as the Claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Required Pre-Dispute Procedures
You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against GHW, you will first give us an opportunity to resolve your problem or dispute. You are required to send a written description of the issue to us, including, but not limited to, information or representations related to the product or service upon which you rely. You may send the written description by U.S. Mail to Great HealthWorks, Inc., 4150 SW 28 th Way, Fort Lauderdale, FL 33312, Attn: Legal Department. You agree to negotiate with GHW or its designated representative in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within sixty (60) days after GHW’s receipt of your written dispute, you agree to the dispute resolution provisions below.
You and GHW agree to commence any arbitration proceeding within one (1) year after the Claim arises (the one (1) year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after one (1) year shall be barred.
For your convenience, the arbitration may be conducted in the federal district where you reside. If both you and GHW agree, the arbitration may be held by telephone or through written submissions.
Organization, Rules and the Arbitrator
You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures (see www.jamsadr.com) and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal or visiting its website.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability or enforceability of these Terms & Conditions and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non- signatory to this agreement and whether a non-signatory to this Agreement can enforce this provision against you or GHW.
The parties shall share equally the arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own fees, costs and expenses, including but not limited to, those for any attorneys, experts, documents and witnesses.
The arbitrator shall follow Florida substantive law and any ordered relief shall be binding. The arbitrator may award any form of individual relief including injunctions and punitive damages. The arbitrator may award costs or fees to a prevailing party. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final subject to appeal under the FAA.
This provision survives termination of your account or relationship with GHW, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e. unenforceability would allow arbitration to proceed as a class or representative action) then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the one (1) year limitation period set forth above. This provision is the entire arbitration agreement between you and GHW and shall not be modified except in writing by GHW.
GHW reserves the right to amend this arbitration provision at any time. Your continued use of any GHW Website, purchase of a product or service on or through a GHW website or by telephone, or use or attempted use of a GHW product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, GHW will provide you notice and an opportunity to opt-out. Your continued use of any GHW site, purchase of a product or service through any site or by telephone or use or attempted use of a GHW product or service is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE OF PURCHASE, USE OR ATTEMPTED USE OF A PRODUCT OR SERVICE PURCHASED BY TELEPHONE OR ON OR THROUGH THIS GHW WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO GREAT HEALTHWORKS, INC., 4150 SW 28TH WAY, FORT LAUDERDALE, FL 33312 ATTN: LEGAL DEPARTMENT.
FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE THIRTY (30) DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST PURSUE YOUR CLAIM THROUGH ARBITRATION AS SET FORTH IN THIS AGREEMENT.
21. Choice of Law and Exclusive Venue for all other Controversies
This Agreement is governed by the laws of the state of Florida, United States. If you are accessing this Website from outside the United States, the laws and regulations of your country to do not apply. You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions set forth in Section 20 of this Agreement (other than an individual action filed in small claims court with jurisdiction) shall be filed only in a court of competent jurisdiction located in Broward County, Florida and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
22. GHW Remedies
In order to prevent or limit irreparable injury to GHW, in the event of any breach or threatened breach by you of any provisions of this Agreement, GHW shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting GHW from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
GHW may make changes to these Terms & Conditions, from time to time, in its sole discretion, by updating and posting the revised terms on the Website without notice to you. Your continued use of a GHW product or service, including through an automatic renewal program or use of the Website following the posting of a new version of the Terms & Conditions constitutes your acceptance of any such changes. Accordingly, whenever you make a purchase or visit the Website, you should check to see if a new version of the Terms & Conditions has been posted.
All trademarks and service marks displayed on the Website are the property of a GHW company or other respective owners. You may not use or display any trademarks or service marks owned by any GHW company without the company’s prior written consent and you may not otherwise use or display any other trademarks or service marks displayed on the Website without the permission of the owner.
25. Copyright Policy
GHW respects the copyright and intellectual property rights of others and may, without notice, remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, GHW may terminate Website access by users who appear to infringe the copyright or other intellectual property rights of others. Further, GHW will comply with the Digital Millennium Copyright Act.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide notice to GHW via e-mail to: [email protected] (GHW’s copyright agent. Please include in the notice the following information:
- . An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the material that you claim is infringing is located on the Website.
- Your address, telephone number and e-mail address.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
- A statement by you, made under penalty of perjury (e.g. notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please direct other inquiries regarding any infringement issues by email to [email protected].
26. Additional Terms
The GHW company operating this site or providing products and services through this site, may assign, transfer or sub-contract any of its rights or obligations under these Terms & Conditions to any third party or any GHW company at its discretion. Any representations, warranties and indemnification obligations made or undertaken by you will survive cancellation or termination of your account or relationship with GHW. No delay by GHW in exercising any right or remedy under these Terms & Conditions shall operate as a waiver of that right or remedy or shall affect GHW’s ability to subsequently exercise that right or remedy. Any waiver must be agreed to by GHW in writing. If any term or provision of these Agreement is held invalid, illegal or unenforceable for any reason by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. These Terms & Conditions supersede and replace any other terms previously published by us and any other representations or statements made by us to you, whether oral, written or otherwise.