TERMS OF USE
OURSIDE TERMS OF USE
Last Updated: November [4], 2022
Purple Finch Enterprises, LLC D/B/A Ourside (the “Company,” “we”, “us,” or “our”) provides you access to our website located at www.ourside.nyc (the “Website”), and our services and products that are made available through the Website (the “Services”), subject to the following terms and conditions (the “Terms”). By visiting the Website, and/or accessing and/or using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms and the terms and conditions of our privacy policy (the “Privacy Policy”), which are hereby incorporated into these Terms and made a part hereof by reference (collectively, the “Agreement”). If you do not agree to any of the terms in the Agreement, you may not access or use the Website and the Services. If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Website, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Website or provide you with notice of the modification at the last email address you gave us. By continuing to access or use the Website and/or the Services after we have posted a modification on the Website or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Website. The Services and products are only available for individuals aged 18 years or older. If you are under 18 years of age, please do not use the Services. Every time you wish to use the Website, please check these Terms to ensure you understand the terms and conditions that apply at that Time.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
I. NO MEDICAL ADVICE YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT, THROUGH THE WEBSITE OR OTHERWISE, PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND THAT THE COMPANY DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION. THE WEBSITE AND THE CONTENT (AS DEFINED BELOW) ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE WEBSITE.YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE WEBSITE, YOU ARE NOT ENTERING INTO A DOCTOR-PATIENT OR PROVIDER-PATIENT RELATIONSHIP WITH THE COMPANY. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. RELIANCE ON THE WEBSITE IS SOLELY AT YOUR OWN RISK.
II. USE OF THE WEBSITE The Website is made available free of charge for your personal use subject to these Terms. To use the Website, you must (i) be at least eighteen (18) years of age; (ii) have not previously beensuspended or removed from the Website; and (iii) use the Website in compliance with all applicable laws and regulations. By using this Website, you are representing and warranting that you have reached eighteen (18) years of age. Additionally, by accessing the Website and/or accessing and/or using the Services, you hereby agree to comply with the following guidelines: You will not use the Website and/or the Services for any unlawful purpose; You will not access or use the Website and/or the Services to collect any market research for a competing businesses; You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website and/or the Services; You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Website and the Services; You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Website and/or the Services; You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file; You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and You will not interfere with or attempt to interrupt the proper operation of the Website and/or the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Website and/or Services, or any portion thereof, without notice. You understand that we have the sole right to determine whether you are engaging in any unauthorized activity and/or violating any term or conditions of these Terms.
III. CREATING AND SAFEGUARDING YOUR ACCOUNT To use certain features of the Website, you may be required to register for an account (“Account”). When you register for an account, we may ask you to give us certain identifying information about yourself, including but not limited to your email address and other contact information, and to create a username and password (“Registration Information”). When registering for and maintaining an account, you agree to provide true, accurate, current, and complete information about yourself. You also agree not to impersonate anyone, misrepresent any affiliation with anyone else, use false information, or otherwise conceal your identity from the Company for any purpose. You are solely responsible for maintaining the confidentiality and security of your password and other Registration Information. We are not liable for any acts or omissions by you in connection with your Account. For your protection and the protection of other users, we ask you not to share your Registration Information with anyone else. If you do share this information with anyone, we will consider their activities to have been authorized by you. You must immediately notify us using the information in the “Contact Us” section if you know or have any reason to suspect that your Account or password has been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You can access, edit and update your Account by logging in at https://wwwourside.nyc/login.
IV. ACCESSING THE WEBSITE Although we aim to offer you the best service possible, the Website, or any content on it, may not always be available or remain uninterrupted. Please note that we may suspend or withdraw or restrict the availability of all or any part of the Website for business and operational reasons without notice (e.g. for repairs, maintenance, and/or, updates). We will not be liable to you if, for any reason, the Website is unavailable at any time or for any period. We use reasonable efforts to ensure that the Website is free from viruses and other malicious or harmful content; however, we cannot guarantee that your use of the Website (including any content on it or any Website accessible from it) will not cause damage to your computer or other devices. You should use your own virus protection software. We are not liable for any loss or damage your computer or other devices may suffer as a result of viruses or other malicious or harmful content that they access from or via the Website.
V. ELECTRONIC COMMUNICATIONS By using the Website, you consent to receiving operational electronic communications and notices from us. You agree that any notice, agreement, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Any marketing messages we send to you will be sent in accordance with our Privacy Policy. You have the right to opt-out of receiving marketing messages at any time. Please see our Privacy Policy for more information regarding opting out of receiving marketing messages.
VI. USER-GENERATED CONTENT You agree that we may use your comments, reviews, feedback, suggestions, or questions, and any other submissions disclosed, submitted or offered by you on or through the Website (collectively, “Submissions”) without compensation, acknowledgement or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Website or other products or services. When you make a Submission (other than your personal data which is subject to our Privacy Policy), you grant us a perpetual, worldwide, non-exclusive, royalty-free, transferrable license to use reproduce, distribute, prepare derivative works, and display the Submission in connection with our business, including in order to promote our Website or our business. You also grant us the right to sub-license your content to third parties on the same terms granted by you to us. By posting or submitting Submissions through the Website, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for your Submissions. You agree that your Submissions will not contain material subject to copyright or other proprietary rights unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described in the preceding paragraph. Submissions should not include abusive, offensive, or otherwise inappropriate language; profanity, blasphemy, spiteful, racist, sexually explicit, sexually gratuitous, or discriminatory comments or content that might be considered to be harassment, abuse, or threats against the personal safety or property of others; comments about other reviewers or bloggers; remarks that repeat criminal accusations, false, defamatory, or misleading statements; material which impersonates others or personal information about anyone, including yourself, such as phone numbers, postal addresses, or credit card numbers; spam or advertising; or HTML code, computer script or Site URLs. We, in our absolute discretion, reserve the right to not publish any Submission or remove it, take any appropriate action if deemed necessary, or remove reviews that do not comply with the rules above. Please note that the views expressed in Submissions are the opinions of those users and do not represent the views, opinions, beliefs, or values of the Company.
VII. DIGITAL MILLENNIUM COPYRIGHT ACT You represent and warrant that you own or otherwise have the right to use any content you post to the Website. If you believe that your content has been used in a way that constitutes copyright infringement, you may contact our Designated Agent: [Name of Designated Agent]
[Company Name] [Mailing Address] Phone: [phone number] Fax: [fax number] Email: [email address] You must provide the following information: an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the copyright owner; 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; your address, telephone number, and email address; a written statement 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, 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. The Company has adopted and implements a policy that provides for termination in appropriate circumstances of accounts of users who repeatedly infringe copyright or other intellectual property rights of the Company or others.
VIII. MAKING A PURCHASE To purchase a product on the Website, you must be 13 years of age or older and have a shipping address within the United States. It is your responsibility to know whether you are legally able to purchase our products and it is also your responsibility to know your local, state, and federal laws before purchasing a product. All products on the Website are intended for legal use. Before purchasing any products and/or using any services on our Website, you agree to confirm the legality of the products in the state where you request to receive a shipment. You agree to pay all applicable fees for the Services. We use a Third-Party Payment Processor to process your payment. When making a purchase on the Website, you are required to provide information about yourself that is true, accurate, current, and complete, including your name, mailing address, e-mail address, and additional information as indicated. You represent and warrant that you are the valid owner or an authorized user, of the credit card or payment account that you provide to such Third-Party Payment Processor, and that all information you provide is accurate. If payment is not received from your credit card issuer or any other payment facility, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. All orders are subject to availability and any products in “Your Cart” are not reserved until your order is processed. Once your order has been processed, we are unable to make any changes or cancel it. All purchases must be for personal use only. Re-selling or using our products for commercial purpose or benefit is strictly prohibited. We reserve the right to cancel or change orders of multiple quantities of a product from being shipped to any one customer or postal Address.
IX. INTELLECTUAL PROPERTY RIGHTS You acknowledge and agree that you relinquish all ownership rights in any ideas or suggestions that you submit to the Company through this Website. We retain all right, title and interest in and to the Website, the Services, all software and other technology relating to any of the foregoing, all any content or materials made available through any of the foregoing, together with all intellectual property rights embodied therein (“Content”). The Content may be owned by us or our licensors, and is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other intellectual property rights or laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement and the functionality of the Services. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary or legal notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content outside the Website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your permission to access the Website and the Services automatically terminates and you must immediately destroy any copies you have made of the Website and the Services.
X. NO WARRANTY AND LIMITATION OF LIABILITY The Website provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied. Although Company seeks to maintain safe, secure, accurate,and well-functioning services, we cannot guarantee the continuous operation of or access to our Website, and there may at times be inadvertent technical or factual errors or inaccuracies. Company specifically (but without limitation) disclaims (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for any/all damages that may result from your use of or access to the Website. The Company does not guarantee the accuracy of, and disclaims all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through the Website. No advice or information, whether oral or written, obtained from us or through the Website, will create any warranty or representation not expressly made herein.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE OR ANY RELATED SERVICES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. THE WEBSITE AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITE AND THE SERVICES AT ANY TIME WITHOUT NOTICE.
XI. COMPLIANCE WITH APPLICABLE LAWS The Website and the Services are based in the United States. We make no claims concerning whether the Website and the Services may be viewed or be appropriate for use outside of the United States. If you access the Website and/or the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
XII. TERMINATION OF THE AGREEMENT We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Website and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Website and/or the Services at any time without prior notice or liability.
XIII. DISCLAIMERS Any statements on this Website or any materials or products we distribute or sell have not been evaluated by the Food and Drug Administration (“FDA”). Neither the products nor the ingredients in any of the products available on the Website have been approved or endorsed by the FDA or any regulatory agency. The products sold on the Website are not intended to diagnose, treat, cure or prevent any disease. The information on this Website or other materials we may provide to you are designed for educational purposes only and are not intended to be a substitute for informed medical advice or care. Any information provided on this Website should not be used to diagnose or treat any health problems or illnesses without consulting a Doctor.
XIV. INDEMNIFICATION You agree that you will be personally responsible for your use of the Website and that you will indemnify, defend, and hold the Company and its shareholders, members, officers, directors, employees, agents, and representatives (collectively, “ Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) your misuse of the Website, the Services and/or the Content; and/or (iii) your violation of any third- party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise
XV. LINKS TO OTHER WEBSITES; LINKS TO THIS WEBSITE The Website and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk. We reserve the right to withdraw linking permission without notice.
XVI. GOVERNING LAW The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement DISPUTE RESOLUTION AND CLASS ACTION WAIVER PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. i. INFORMAL DISPUTE RESOLUTION Either party asserting a dispute shall first try in good faith to resolve it by providing written notice, as specified below, to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent, which that must be satisfied before initiating any arbitration against the other party.
ii. BY BINDING ARBITRATION In the event of a dispute arising under or relating to this Agreement, the Website, the Services, or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 17 below, nothing in these Terms of Use will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
iii. CLASS ACTION WAVIER You agree that any arbitration or proceeding shall be limited to the Dispute between you and us individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING
XVII. EQUITABLE RELIEF You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
XVIII. MISCELLANEOUS i. Survivability. If the Agreement is terminated in accordance with the termination provision in Section 12 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.” ii. Entire Agreement. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. iii. No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. iv. Paragraph Headers. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. v. Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. vi. Assignment. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
CONTACT US
If you have any questions or concerns about these Terms of Use, please contact us at hello@ourside.nyc.
Last Updated: November [4], 2022
Purple Finch Enterprises, LLC D/B/A Ourside (the “Company,” “we”, “us,” or “our”) provides you access to our website located at www.ourside.nyc (the “Website”), and our services and products that are made available through the Website (the “Services”), subject to the following terms and conditions (the “Terms”). By visiting the Website, and/or accessing and/or using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms and the terms and conditions of our privacy policy (the “Privacy Policy”), which are hereby incorporated into these Terms and made a part hereof by reference (collectively, the “Agreement”). If you do not agree to any of the terms in the Agreement, you may not access or use the Website and the Services. If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Website, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Website or provide you with notice of the modification at the last email address you gave us. By continuing to access or use the Website and/or the Services after we have posted a modification on the Website or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Website. The Services and products are only available for individuals aged 18 years or older. If you are under 18 years of age, please do not use the Services. Every time you wish to use the Website, please check these Terms to ensure you understand the terms and conditions that apply at that Time.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
I. NO MEDICAL ADVICE YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT, THROUGH THE WEBSITE OR OTHERWISE, PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND THAT THE COMPANY DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION. THE WEBSITE AND THE CONTENT (AS DEFINED BELOW) ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE WEBSITE.YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE WEBSITE, YOU ARE NOT ENTERING INTO A DOCTOR-PATIENT OR PROVIDER-PATIENT RELATIONSHIP WITH THE COMPANY. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. RELIANCE ON THE WEBSITE IS SOLELY AT YOUR OWN RISK.
II. USE OF THE WEBSITE The Website is made available free of charge for your personal use subject to these Terms. To use the Website, you must (i) be at least eighteen (18) years of age; (ii) have not previously beensuspended or removed from the Website; and (iii) use the Website in compliance with all applicable laws and regulations. By using this Website, you are representing and warranting that you have reached eighteen (18) years of age. Additionally, by accessing the Website and/or accessing and/or using the Services, you hereby agree to comply with the following guidelines: You will not use the Website and/or the Services for any unlawful purpose; You will not access or use the Website and/or the Services to collect any market research for a competing businesses; You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website and/or the Services; You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Website and the Services; You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Website and/or the Services; You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file; You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and You will not interfere with or attempt to interrupt the proper operation of the Website and/or the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Website and/or Services, or any portion thereof, without notice. You understand that we have the sole right to determine whether you are engaging in any unauthorized activity and/or violating any term or conditions of these Terms.
III. CREATING AND SAFEGUARDING YOUR ACCOUNT To use certain features of the Website, you may be required to register for an account (“Account”). When you register for an account, we may ask you to give us certain identifying information about yourself, including but not limited to your email address and other contact information, and to create a username and password (“Registration Information”). When registering for and maintaining an account, you agree to provide true, accurate, current, and complete information about yourself. You also agree not to impersonate anyone, misrepresent any affiliation with anyone else, use false information, or otherwise conceal your identity from the Company for any purpose. You are solely responsible for maintaining the confidentiality and security of your password and other Registration Information. We are not liable for any acts or omissions by you in connection with your Account. For your protection and the protection of other users, we ask you not to share your Registration Information with anyone else. If you do share this information with anyone, we will consider their activities to have been authorized by you. You must immediately notify us using the information in the “Contact Us” section if you know or have any reason to suspect that your Account or password has been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You can access, edit and update your Account by logging in at https://wwwourside.nyc/login.
IV. ACCESSING THE WEBSITE Although we aim to offer you the best service possible, the Website, or any content on it, may not always be available or remain uninterrupted. Please note that we may suspend or withdraw or restrict the availability of all or any part of the Website for business and operational reasons without notice (e.g. for repairs, maintenance, and/or, updates). We will not be liable to you if, for any reason, the Website is unavailable at any time or for any period. We use reasonable efforts to ensure that the Website is free from viruses and other malicious or harmful content; however, we cannot guarantee that your use of the Website (including any content on it or any Website accessible from it) will not cause damage to your computer or other devices. You should use your own virus protection software. We are not liable for any loss or damage your computer or other devices may suffer as a result of viruses or other malicious or harmful content that they access from or via the Website.
V. ELECTRONIC COMMUNICATIONS By using the Website, you consent to receiving operational electronic communications and notices from us. You agree that any notice, agreement, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Any marketing messages we send to you will be sent in accordance with our Privacy Policy. You have the right to opt-out of receiving marketing messages at any time. Please see our Privacy Policy for more information regarding opting out of receiving marketing messages.
VI. USER-GENERATED CONTENT You agree that we may use your comments, reviews, feedback, suggestions, or questions, and any other submissions disclosed, submitted or offered by you on or through the Website (collectively, “Submissions”) without compensation, acknowledgement or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Website or other products or services. When you make a Submission (other than your personal data which is subject to our Privacy Policy), you grant us a perpetual, worldwide, non-exclusive, royalty-free, transferrable license to use reproduce, distribute, prepare derivative works, and display the Submission in connection with our business, including in order to promote our Website or our business. You also grant us the right to sub-license your content to third parties on the same terms granted by you to us. By posting or submitting Submissions through the Website, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for your Submissions. You agree that your Submissions will not contain material subject to copyright or other proprietary rights unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described in the preceding paragraph. Submissions should not include abusive, offensive, or otherwise inappropriate language; profanity, blasphemy, spiteful, racist, sexually explicit, sexually gratuitous, or discriminatory comments or content that might be considered to be harassment, abuse, or threats against the personal safety or property of others; comments about other reviewers or bloggers; remarks that repeat criminal accusations, false, defamatory, or misleading statements; material which impersonates others or personal information about anyone, including yourself, such as phone numbers, postal addresses, or credit card numbers; spam or advertising; or HTML code, computer script or Site URLs. We, in our absolute discretion, reserve the right to not publish any Submission or remove it, take any appropriate action if deemed necessary, or remove reviews that do not comply with the rules above. Please note that the views expressed in Submissions are the opinions of those users and do not represent the views, opinions, beliefs, or values of the Company.
VII. DIGITAL MILLENNIUM COPYRIGHT ACT You represent and warrant that you own or otherwise have the right to use any content you post to the Website. If you believe that your content has been used in a way that constitutes copyright infringement, you may contact our Designated Agent: [Name of Designated Agent]
[Company Name] [Mailing Address] Phone: [phone number] Fax: [fax number] Email: [email address] You must provide the following information: an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the copyright owner; 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; your address, telephone number, and email address; a written statement 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, 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. The Company has adopted and implements a policy that provides for termination in appropriate circumstances of accounts of users who repeatedly infringe copyright or other intellectual property rights of the Company or others.
VIII. MAKING A PURCHASE To purchase a product on the Website, you must be 13 years of age or older and have a shipping address within the United States. It is your responsibility to know whether you are legally able to purchase our products and it is also your responsibility to know your local, state, and federal laws before purchasing a product. All products on the Website are intended for legal use. Before purchasing any products and/or using any services on our Website, you agree to confirm the legality of the products in the state where you request to receive a shipment. You agree to pay all applicable fees for the Services. We use a Third-Party Payment Processor to process your payment. When making a purchase on the Website, you are required to provide information about yourself that is true, accurate, current, and complete, including your name, mailing address, e-mail address, and additional information as indicated. You represent and warrant that you are the valid owner or an authorized user, of the credit card or payment account that you provide to such Third-Party Payment Processor, and that all information you provide is accurate. If payment is not received from your credit card issuer or any other payment facility, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. All orders are subject to availability and any products in “Your Cart” are not reserved until your order is processed. Once your order has been processed, we are unable to make any changes or cancel it. All purchases must be for personal use only. Re-selling or using our products for commercial purpose or benefit is strictly prohibited. We reserve the right to cancel or change orders of multiple quantities of a product from being shipped to any one customer or postal Address.
IX. INTELLECTUAL PROPERTY RIGHTS You acknowledge and agree that you relinquish all ownership rights in any ideas or suggestions that you submit to the Company through this Website. We retain all right, title and interest in and to the Website, the Services, all software and other technology relating to any of the foregoing, all any content or materials made available through any of the foregoing, together with all intellectual property rights embodied therein (“Content”). The Content may be owned by us or our licensors, and is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other intellectual property rights or laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement and the functionality of the Services. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary or legal notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content outside the Website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your permission to access the Website and the Services automatically terminates and you must immediately destroy any copies you have made of the Website and the Services.
X. NO WARRANTY AND LIMITATION OF LIABILITY The Website provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied. Although Company seeks to maintain safe, secure, accurate,and well-functioning services, we cannot guarantee the continuous operation of or access to our Website, and there may at times be inadvertent technical or factual errors or inaccuracies. Company specifically (but without limitation) disclaims (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for any/all damages that may result from your use of or access to the Website. The Company does not guarantee the accuracy of, and disclaims all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through the Website. No advice or information, whether oral or written, obtained from us or through the Website, will create any warranty or representation not expressly made herein.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE OR ANY RELATED SERVICES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. THE WEBSITE AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITE AND THE SERVICES AT ANY TIME WITHOUT NOTICE.
XI. COMPLIANCE WITH APPLICABLE LAWS The Website and the Services are based in the United States. We make no claims concerning whether the Website and the Services may be viewed or be appropriate for use outside of the United States. If you access the Website and/or the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
XII. TERMINATION OF THE AGREEMENT We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Website and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Website and/or the Services at any time without prior notice or liability.
XIII. DISCLAIMERS Any statements on this Website or any materials or products we distribute or sell have not been evaluated by the Food and Drug Administration (“FDA”). Neither the products nor the ingredients in any of the products available on the Website have been approved or endorsed by the FDA or any regulatory agency. The products sold on the Website are not intended to diagnose, treat, cure or prevent any disease. The information on this Website or other materials we may provide to you are designed for educational purposes only and are not intended to be a substitute for informed medical advice or care. Any information provided on this Website should not be used to diagnose or treat any health problems or illnesses without consulting a Doctor.
XIV. INDEMNIFICATION You agree that you will be personally responsible for your use of the Website and that you will indemnify, defend, and hold the Company and its shareholders, members, officers, directors, employees, agents, and representatives (collectively, “ Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) your misuse of the Website, the Services and/or the Content; and/or (iii) your violation of any third- party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise
XV. LINKS TO OTHER WEBSITES; LINKS TO THIS WEBSITE The Website and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk. We reserve the right to withdraw linking permission without notice.
XVI. GOVERNING LAW The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement DISPUTE RESOLUTION AND CLASS ACTION WAIVER PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. i. INFORMAL DISPUTE RESOLUTION Either party asserting a dispute shall first try in good faith to resolve it by providing written notice, as specified below, to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent, which that must be satisfied before initiating any arbitration against the other party.
ii. BY BINDING ARBITRATION In the event of a dispute arising under or relating to this Agreement, the Website, the Services, or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 17 below, nothing in these Terms of Use will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
iii. CLASS ACTION WAVIER You agree that any arbitration or proceeding shall be limited to the Dispute between you and us individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING
XVII. EQUITABLE RELIEF You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
XVIII. MISCELLANEOUS i. Survivability. If the Agreement is terminated in accordance with the termination provision in Section 12 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.” ii. Entire Agreement. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. iii. No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. iv. Paragraph Headers. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. v. Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. vi. Assignment. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
CONTACT US
If you have any questions or concerns about these Terms of Use, please contact us at hello@ourside.nyc.
