Terms and Conditions
The Power Swabs® Web Site is comprised of various web pages (the “Web Site”) operated by Sheer Science and/or its parents, affiliates, and franchisees (as used throughout these Terms and Conditions, “Sheer Science"), who maintains this Web Site as a service to those users who are interested in Power Swabs® products and/or desire to purchase Power Swabs® products. The Web Site is intended to be informative, and access to this Web Site and/or the purchase of any goods or services through the Web Site is governed by the Terms and Conditions set forth herein and all applicable laws.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEB SITE OR MAKING ANY PURCHASE. YOUR USE OF THIS WEB SITE AND/OR MAKING ANY PURCHASE THROUGH THIS WEB SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THIS WEB SITE AND DO NOT MAKE A PURCHASE.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Opt-out of Arbitration: You may elect to exclude yourself from the agreement to arbitrate by sending a letter (an “Opt-Out Notice”) by first class United States mail to Sheer Science, 777 Yamato Rd, Suite 111, Boca Raton, Florida, 33431; Attention: Legal Department: Arbitration Opt-Out. The Opt-Out Notice must include: (1) your first and last name; (2) your postal mailing address; (3) phone number; (4) email address; (5) your account number (if known); and (6) a clear statement that you do not wish to resolve disputes with us through arbitration. You must personally sign the Opt-Out Notice (and not your counsel, an agent or other representative). The Opt-Out Notice must be received no later than thirty (30) days from the date of purchase or the start of your order, whichever comes first. You must submit a separate Opt-Out Notice for each of your specific product orders. All other terms of this Agreement will continue to apply to your use of the Services and your auto delivery, including the requirement to participate in the informal dispute resolution process described above. If you do not timely opt out of this agreement to arbitrate, such action shall constitute mutual acceptance of these arbitration terms. Opting out of these arbitration terms has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
1. Products, Content and Specifications. All features, content, specifications, prices, and products described or depicted on this Web Site, are subject to change at any time without notice. The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Web Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
2. Health Information Disclaimer. Any medical or health related information provided on the Web Site is provided for educational purposes only and is not intended to constitute medical or dental advice or replace discussions with a healthcare provider or dental professional.
3. Payment/Shipping Limitations. All payments through the Web Site are processed using a third-party processor. You acknowledge that Sheer Science is not liable for any breaches of credit card or debit card security or privacy by such third-party processor. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment. When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on this Web Site. All prices on this site are based in U.S. dollars and are subject to the current currency exchange rate for shipping addresses outside of the United States. Shipments to addresses outside of the United States may also be subject to local duty fees and taxes. All purchases from this Web Site are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Web Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
4. Accuracy of Information. We attempt to ensure that information on this Web Site is complete, accurate and current. Despite our efforts, the information on this Web Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness or accuracy of any information on this Web Site. For example, products included on this Web Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Web Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
5. Use of this Web Site. Unless otherwise specified, the Web Site is for your personal and noncommercial use only. As a condition of your use of the Web Site, you warrant to Sheer Science that you will not use the Web Site for any purpose that is unlawful or prohibited by these Terms and Conditions. You may not use Web Site in any manner which could damage, disable, overburden, or impair the Web Site or interfere with any other party's use and enjoyment of the Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Web Site.
Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights (patent, copyright, trademark, rights of publicity, trade dress, service marks, trade secrets, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof). You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of the content on this Web Site. You may not modify the information or materials displayed on or that can be downloaded from this Web Site in any way or reproduce or publicly display, perform, or distribute or otherwise use any such information or materials for any public or commercial purpose. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations.
6. Copyright/Trademarks/Notices of Infringement. The design of this Web Site and all text, graphics, information, content, and other material displayed on or that can be downloaded from this Web Site are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms and Conditions or with prior written permission of the owner of such material.
Certain trademarks, trade names, service marks and logos used or displayed on this Web Site are registered and unregistered trademarks, trade names and service marks of Sheer Science. Other trademarks, trade names and service marks used or displayed on this Web Site are the registered and unregistered trademarks, trade names and service marks of their respective owners and its affiliates. Nothing contained on this Web Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on this Web Site without the written permission of Sheer Science.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Sheer Science’s Designated Agent(s). ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE.
(a) The Power Swabs® name, logo and product images are protected under trademark and/or copyright laws. We are committed to protecting our trademarks, copyrights and intellectual property from counterfeiting and unauthorized use or resale.
Power Swabs® and its logos are registered trademarks and may not be used or reproduced on any website or by a third-party without the explicit consent of Power Swabs® by True Earth Health Products/Sheer Science. Reselling or redistributing any True Earth Health Products/Sheer Science product is not authorized without the written permission of the company.
Advertising or otherwise marketing for sale Power Swabs® products in any manner that is factually incorrect or otherwise misleading or illegal is prohibited.
Our advertising policy covers all advertising to the public in all forms of media, including, but not limited to, websites, social media, television, radio, and print.
To learn more about Power Swabs® and our authorized wholesale/reseller program, contact us at wholesale@trueearthhealth.com.
7. Linking to this Web Site. Creating or maintaining any link from another Web site to any page on this Web Site without our prior written permission is prohibited. Running or displaying this Web Site or any information or material displayed on this Web Site in frames or through similar means on another Web site without our prior written permission is prohibited. Any permitted links to this Web Site must comply with all applicable laws, rule and regulations.
8. Third Party Links. From time to time, this Web Site may contain links to Web sites that are not owned, operated or controlled by Sheer Science. Such links are provided solely as a convenience to you. If you use these links, you will leave this Web Site. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other Web site. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other Web sites, or any content, materials or other information located or accessible from any other Web sites, or the results that you may obtain from using any other Web sites. If you decide to access any other Web sites linked to or from this Web Site, you do so entirely at your own risk.
9. Inappropriate Material. You are prohibited from posting or transmitting any, at Sheer Science's sole determination, unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from this Web Site. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
10. User Information. Other than personally identifiable information, which is subject to this Web Site’s Privacy Statement, any material, information, suggestions, ideas, concepts, know-how, techniques, questions, comments or other communication you transmit or post to this Web Site in any manner (“User Communications”) is and will be considered non-confidential and non-proprietary. Personally identifiable information that you voluntarily post on any part of this Web Site that is viewable by the public (e.g., in the Customer Reviews section) is not subject to this Web Site’s Privacy Statement and is considered User Communications. We and our respective affiliates and our or their designees may use any or all User Communications for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, manufacturing and/or marketing in any manner whatsoever for any or all commercial or non-commercial purposes. We may, but are not obligated to, monitor or review any User Communications. We will have no obligation to use, return, review, or respond to any User Communications. We will have no liability related to the content of any such User Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We retain the right to remove any or all User Communications that includes any material we deem inappropriate or unacceptable.
11. DISCLAIMERS. YOUR USE OF THIS SITE IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. SHEER SCIENCE DOES NOT WARRANT AND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THIS WEB SITE. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE MAY BE OUT OF DATE, AND SHEER SCIENCE DOES NOT MAKE ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THIS WEB SITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SHEER SCIENCE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THIS WEB SITE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
12. LIMITATIONS OF LIABILITY. Sheer Science does not assume any responsibility, and will not be liable, for any damages to, or any viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Web Site, or you’re downloading of any information or materials from this Web Site.
IN NO EVENT WILL SHEER SCIENCE OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THIS WEB SITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, DELAY OR INABILITY TO USE OR THE RESULTS OF USE OF THIS WEB SITE, ANY WEB SITES LINKED TO THIS WEB SITE, OR THE MATERIALS, INFORMATION, PRODUCTS, OR SERVICES OBTAINED THROUGH ANY OR ALL SUCH WEB SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THIS WEB SITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEB SITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THIS WEB SITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THIS WEB SITE.
13. Revisions to these Terms and Conditions. These Terms and Conditions may be revised at any time and from time to time by updating this posting. You should visit this page from time to time to review the then current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by legal notices or terms located on particular pages of this Web Site. When we change the policy in a material manner we will update the ‘last updated’ date below.
14. Termination. You or we may suspend or terminate your account or your use of this Web Site at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.
15. Indemnity. You agree to indemnify and hold Sheer Science and their subsidiaries, officers, directors, employees, successors and assigns, harmless from any claim, loss or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of our Web Site, your connection to our Web Site, your violation of these Terms and Conditions, or your violation of any rights of another party. This indemnity survives termination of these Terms and Conditions. Sheer Science reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Sheer Science in asserting any available defenses.
16. Domestic Use; Export Restriction. We control the Web Site from our offices within the United States of America. We make no representation that the Web Site or its content (including, without limitation, any products or services available on or through the Web Site) are appropriate or available for use in other locations. Users who access the Web Site from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Web Site may be downloaded in violation of United States law.
17. General. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision by us, and no waiver of any term shall be deemed a further or continuing waiver of such term or any other term. These Terms and Conditions, together with any amendments and any additional agreements you may enter into with Sheer Science, shall constitute the entire agreement between you and Sheer Science. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and this shall not affect the validity of the other provisions of our Terms and Conditions, which shall remain in full force and effect. These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sheer Science without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
18. Binding Arbitration / Class Waiver.
(a) YOU EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND SHEER SCIENCE (AND/OR SHEER SCIENCE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, YOUR USE OF THE WEB SITE, OR YOUR PURCHASE OR USE OF ANY PRODUCTS OR SERVICES OFFERED BY SHEER SCIENCE OR THROUGH THE WEB SITE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, AND INCLUDING BUT NOT LIMITED TO CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THESE TERMS OR SHEER SCIENCE'S PRIVACY POLICY AND PRACTICES (COLLECTIVELY "DISPUTES"), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY "RULES AND PROCEDURES"). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.
(b) Informal Dispute Resolution: If either you or we intend to arbitrate any Dispute(s), the party seeking arbitration must first notify the other party of the Dispute(s) in writing at least 60 days in advance of initiating the arbitration. Notice to Sheer Science must be sent by first-class mail, FedEx, or UPS to: 777 Yamato Road, Suite 111; Boca Raton, Florida 33431. Notice to you will be to your email address(es) and street address(es), if any, that we have in our records at the time the notice is sent. A notice is only valid if it pertains to, and is on behalf of, a single individual. A notice provided or brought on behalf of multiple individuals is invalid as to all. The notice must include (i) the name, telephone number, mailing address, and email address of the person or entity seeking arbitration; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy; (iv) the original personal signature of the party seeking arbitration; and (v) the original personal signature of any legal counsel or other representative purporting to represent the party seeking arbitration. For purposes of this paragraph, “original personal signature” does not include any digital, scanned, electronic, copied, or facsimile signature. An original personal signature on the notice certifies the following: (i) the notice is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The original personal signature by the party seeking arbitration shall verify under penalty of perjury that the factual statements contained in the notice are true and
correct. Compliance with this paragraph tolls any applicable statute of limitations (as well as Section 18.p) as to any Dispute(s) stated in the notice that are subject to arbitration pursuant to this Section 18. After receipt of the notice, you and Sheer Science agree to personally meet and confer, via telephone or videoconference, to attempt to resolve the Dispute(s). If you are represented by counsel, your counsel may participate in the conference, but you shall also personally attend the conference, unless Sheer Science states in writing that you are not required to personally attend. If you and Sheer Science are unable to resolve the Dispute(s) within 60 days, either party may then proceed to file a claim for arbitration in accordance with the Dispute Resolution provisions below.
The aforementioned Informal Dispute Resolution process, including the written description and your personal participation in the meet and confer, is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. You and Sheer Science agree that any relevant limitation periods and filing fees or other deadlines will be tolled while the parties engage in this Informal Dispute Resolution process. You further agree that whether a complaining party has satisfied these Informal Dispute Resolution procedures, including whether the written description contained all required information, is an issue that can be decided by a court as a prerequisite for arbitration. (c) Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Sheer Science will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Sheer Science also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.
(d) The arbitration may be conducted in Chicago, Illinois or, upon the plaintiff's request, in the city closest to plaintiff's location where AAA maintains an office, unless the parties agree otherwise in writing. The arbitrator's award shall be final and binding on all parties subject to these Terms and may be entered as a judgment in any court of competent jurisdiction.
(e) The arbitrator will follow these Terms and the law. The arbitrator shall not have the authority to commit errors of law or legal reasoning. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party, though the individual relief awarded by the arbitrator may incidentally affect non-parties.
(f) If the amount in controversy does not exceed $10,000 then the arbitration will be conducted solely on the basis of documents you and Sheer Science submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. If the amount in controversy exceeds $10,000 either party may request (or the arbitrator may determine) to hold a hearing.
(g) If the arbitrator finds that a party’s claim, counterclaim, or appeal was frivolous, asserted in bad faith, or pursued for purposes of harassment, the arbitrator shall award the opposing party its attorneys’ fees, costs, and expenses and all amounts charged by AAA for the arbitration.
(h) You or Sheer Science may file such dispositive motions with the arbitrator as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator may stay all further action and deadlines in the arbitration until deciding such motion.
(i) Any award in any arbitration initiated hereunder shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages in any arbitration initiated under this section, except as may be required by statute. Nothing in this section shall be deemed as preventing Sheer Science from seeking injunctive or other equitable relief from the courts as necessary to protect any of Sheer Science’s proprietary interests.
(j) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
(k) Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (1) a violation of your or Sheer Science's intellectual property rights in any manner; or (2) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the "Governing Law" section below, and both parties consent to exclusive jurisdiction and venue in such courts. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
(l) To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise.
(m)YOU AND SHEER SCIENCE AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION. YOU AND SHEER SCIENCE EACH AGREE TO WAIVE THE RIGHT TO HAVE ANY DISPUTE OR CLAIM SUBJECT TO THE ARBITRATION AGREEMENT BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED AS A CLASS ARBITRATION OR CLASS ACTION.
(n) Process for Arbitration of Bellweather Demands. If more than twenty-five (25) demands for arbitration of a dispute or claim are initiated (i) that involve questions of law or fact common with your Dispute(s) and (ii) where the initiating parties are represented by the same law firm(s) or organization(s) or the demands are presented by or with the assistance or coordination of the same law firm(s) or organization(s), then such demands, including yours, shall be coordinated pursuant to this paragraph. The group of claimants and group of respondents shall each select five (5) demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned to a different arbitrator chosen from its national roster. While the Bellwether Demands are adjudicated, no other demand for arbitration that is subject to this section may be filed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Demand(s) with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance.
You agree to cooperate in good faith with Sheer Science and AAA to implement the Bellwether Demands approach, including the payment of combined reduced fees, set by AAA in its discretion. Any party may request that AAA appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as whether the Bellwether Demands process is applicable or enforceable. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s costs shall be paid by Sheer Science, unless the Administrative Arbitrator determines that the party seeking a decision by the Administrative Arbitrator did so by raising issues that were frivolous, asserted in bad faith, or pursued for purposes of harassment, in which case the losing party shall pay all costs associated with the Administrative Arbitrator’s decision.
The results of the Bellwether Demands will be given to a mediator from AAA selected from an initially proposed group of 5 mediators, with Sheer Science and the non-Bellwether Demands claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands. After the results are provided to the mediator, Sheer Science, the mediator and the remaining claimants will have 60 days (the “Mediation Period”) to agree on a resolution.
If the Mediation Period expires without a resolution or other agreement to the substantive methodology for resolving the outstanding demands (or if the Bellweather Demands process is determined by the arbitrator or court of competent jurisdiction to be void or unenforceable), either Sheer Science or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period (or within 60 days of a determination the Bellweather Demands process is void or unenforceable). If neither Sheer Science nor the remaining claimants opt out, the arbitrations may proceed as individual arbitrations.
(o) No arbitration award or decision shall have any preclusive effect in other arbitrations or other litigation, except to preclude the same or similar claims from being re-litigated between the same parties.
(p) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site, these Terms and Conditions, or your purchase or use of any products or services offered by Sheer Science or through the Web Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(q) Severability. If any part of this Section 18 is found by a court of competent jurisdiction to be unenforceable or invalid, the court will reform the agreement to the extent necessary to cure the unenforceable part(s), and the parties will arbitrate their Dispute(s) without reference to or reliance upon the unenforceable part(s), unless this Section 18 otherwise expressly permits the Dispute(s) to be brought in court. However, if for any reason (i) any Dispute(s) subject to Section 18 of these Terms are filed or submitted as a class arbitration, class action, collective action, or representative action and (ii) if the Class Action Waiver is held invalid or unenforceable as to such Dispute(s) or portion thereof, then the agreement to arbitrate contained in Section 18 of these Terms does not apply to the Dispute(s) or portion thereof and such Dispute(s) or portion thereof must be brought in a federal or state court located in, respectively, Chicago, Illinois, or the federal district in which that county falls, but the remainder of the agreement to arbitrate will be binding and enforceable.
(r) The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of Section 18 of these Terms and Conditions. If the FAA is found not to apply to any portion of Section 18 of these Terms and Conditions, then the applicable laws of the State of Florida shall apply without regard to choice-of-law.
19. Choice of Law; Jurisdiction. These Terms and Conditions supersede any other between you and Sheer Science to the extent necessary to resolve any inconsistency or ambiguity between them. Except as otherwise expressly stated in these Terms and Conditions, these Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. A printed version of these Terms and Conditions shall be admissible in any arbitration, judicial, or administrative proceeding to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Also, to the limited extent these Terms and Conditions expressly permit a Dispute to be brought in court (other than small claims court) rather than arbitration, any such judicial action shall be brought only in the federal or state courts of the State of Florida.
20. Autorenew. The price of the Services and/or Products is payable in full before delivery. When you first sign up for a subscription to a Power Swabs subscription plan (a “Plan”), you are charged only for the first delivery of the Plan at the time of your Plan selection. All Plans are continuous AUTORENEWING subscription plans, and you will be charged the applicable price listed for the Plan that you select every 30-180 days, based on your plan until your subscription is canceled. If you wish to pause, cancel or modify your subscription to a Plan, you can do so at any time, however, except as noted otherwise below, any amounts charged to or paid by you prior to such pause or cancellation will not be refunded, and pauses or cancellations may not impact any order for which you have already been charged, depending on the state of the order. You authorize us to continue billing the credit card on file during the term of your subscription plan until and unless the subscription plan ends or is paused or canceled in accordance with the foregoing guidelines and policies. It is your responsibility to keep your payment method up-to-date, as well as to cancel your membership as described in the password-protected customer portal should you wish to discontinue your subscription.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEB SITE OR MAKING ANY PURCHASE. YOUR USE OF THIS WEB SITE AND/OR MAKING ANY PURCHASE THROUGH THIS WEB SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THIS WEB SITE AND DO NOT MAKE A PURCHASE.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Opt-out of Arbitration: You may elect to exclude yourself from the agreement to arbitrate by sending a letter (an “Opt-Out Notice”) by first class United States mail to Sheer Science, 777 Yamato Rd, Suite 111, Boca Raton, Florida, 33431; Attention: Legal Department: Arbitration Opt-Out. The Opt-Out Notice must include: (1) your first and last name; (2) your postal mailing address; (3) phone number; (4) email address; (5) your account number (if known); and (6) a clear statement that you do not wish to resolve disputes with us through arbitration. You must personally sign the Opt-Out Notice (and not your counsel, an agent or other representative). The Opt-Out Notice must be received no later than thirty (30) days from the date of purchase or the start of your order, whichever comes first. You must submit a separate Opt-Out Notice for each of your specific product orders. All other terms of this Agreement will continue to apply to your use of the Services and your auto delivery, including the requirement to participate in the informal dispute resolution process described above. If you do not timely opt out of this agreement to arbitrate, such action shall constitute mutual acceptance of these arbitration terms. Opting out of these arbitration terms has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
1. Products, Content and Specifications. All features, content, specifications, prices, and products described or depicted on this Web Site, are subject to change at any time without notice. The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Web Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
2. Health Information Disclaimer. Any medical or health related information provided on the Web Site is provided for educational purposes only and is not intended to constitute medical or dental advice or replace discussions with a healthcare provider or dental professional.
3. Payment/Shipping Limitations. All payments through the Web Site are processed using a third-party processor. You acknowledge that Sheer Science is not liable for any breaches of credit card or debit card security or privacy by such third-party processor. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment. When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on this Web Site. All prices on this site are based in U.S. dollars and are subject to the current currency exchange rate for shipping addresses outside of the United States. Shipments to addresses outside of the United States may also be subject to local duty fees and taxes. All purchases from this Web Site are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Web Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
4. Accuracy of Information. We attempt to ensure that information on this Web Site is complete, accurate and current. Despite our efforts, the information on this Web Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness or accuracy of any information on this Web Site. For example, products included on this Web Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Web Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
5. Use of this Web Site. Unless otherwise specified, the Web Site is for your personal and noncommercial use only. As a condition of your use of the Web Site, you warrant to Sheer Science that you will not use the Web Site for any purpose that is unlawful or prohibited by these Terms and Conditions. You may not use Web Site in any manner which could damage, disable, overburden, or impair the Web Site or interfere with any other party's use and enjoyment of the Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Web Site.
Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights (patent, copyright, trademark, rights of publicity, trade dress, service marks, trade secrets, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof). You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of the content on this Web Site. You may not modify the information or materials displayed on or that can be downloaded from this Web Site in any way or reproduce or publicly display, perform, or distribute or otherwise use any such information or materials for any public or commercial purpose. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations.
6. Copyright/Trademarks/Notices of Infringement. The design of this Web Site and all text, graphics, information, content, and other material displayed on or that can be downloaded from this Web Site are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms and Conditions or with prior written permission of the owner of such material.
Certain trademarks, trade names, service marks and logos used or displayed on this Web Site are registered and unregistered trademarks, trade names and service marks of Sheer Science. Other trademarks, trade names and service marks used or displayed on this Web Site are the registered and unregistered trademarks, trade names and service marks of their respective owners and its affiliates. Nothing contained on this Web Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on this Web Site without the written permission of Sheer Science.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Sheer Science’s Designated Agent(s). ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE.
(a) The Power Swabs® name, logo and product images are protected under trademark and/or copyright laws. We are committed to protecting our trademarks, copyrights and intellectual property from counterfeiting and unauthorized use or resale.
Power Swabs® and its logos are registered trademarks and may not be used or reproduced on any website or by a third-party without the explicit consent of Power Swabs® by True Earth Health Products/Sheer Science. Reselling or redistributing any True Earth Health Products/Sheer Science product is not authorized without the written permission of the company.
Advertising or otherwise marketing for sale Power Swabs® products in any manner that is factually incorrect or otherwise misleading or illegal is prohibited.
Our advertising policy covers all advertising to the public in all forms of media, including, but not limited to, websites, social media, television, radio, and print.
To learn more about Power Swabs® and our authorized wholesale/reseller program, contact us at wholesale@trueearthhealth.com.
7. Linking to this Web Site. Creating or maintaining any link from another Web site to any page on this Web Site without our prior written permission is prohibited. Running or displaying this Web Site or any information or material displayed on this Web Site in frames or through similar means on another Web site without our prior written permission is prohibited. Any permitted links to this Web Site must comply with all applicable laws, rule and regulations.
8. Third Party Links. From time to time, this Web Site may contain links to Web sites that are not owned, operated or controlled by Sheer Science. Such links are provided solely as a convenience to you. If you use these links, you will leave this Web Site. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other Web site. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other Web sites, or any content, materials or other information located or accessible from any other Web sites, or the results that you may obtain from using any other Web sites. If you decide to access any other Web sites linked to or from this Web Site, you do so entirely at your own risk.
9. Inappropriate Material. You are prohibited from posting or transmitting any, at Sheer Science's sole determination, unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from this Web Site. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
10. User Information. Other than personally identifiable information, which is subject to this Web Site’s Privacy Statement, any material, information, suggestions, ideas, concepts, know-how, techniques, questions, comments or other communication you transmit or post to this Web Site in any manner (“User Communications”) is and will be considered non-confidential and non-proprietary. Personally identifiable information that you voluntarily post on any part of this Web Site that is viewable by the public (e.g., in the Customer Reviews section) is not subject to this Web Site’s Privacy Statement and is considered User Communications. We and our respective affiliates and our or their designees may use any or all User Communications for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, manufacturing and/or marketing in any manner whatsoever for any or all commercial or non-commercial purposes. We may, but are not obligated to, monitor or review any User Communications. We will have no obligation to use, return, review, or respond to any User Communications. We will have no liability related to the content of any such User Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We retain the right to remove any or all User Communications that includes any material we deem inappropriate or unacceptable.
11. DISCLAIMERS. YOUR USE OF THIS SITE IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. SHEER SCIENCE DOES NOT WARRANT AND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THIS WEB SITE. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE MAY BE OUT OF DATE, AND SHEER SCIENCE DOES NOT MAKE ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THIS WEB SITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SHEER SCIENCE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THIS WEB SITE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
12. LIMITATIONS OF LIABILITY. Sheer Science does not assume any responsibility, and will not be liable, for any damages to, or any viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Web Site, or you’re downloading of any information or materials from this Web Site.
IN NO EVENT WILL SHEER SCIENCE OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THIS WEB SITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, DELAY OR INABILITY TO USE OR THE RESULTS OF USE OF THIS WEB SITE, ANY WEB SITES LINKED TO THIS WEB SITE, OR THE MATERIALS, INFORMATION, PRODUCTS, OR SERVICES OBTAINED THROUGH ANY OR ALL SUCH WEB SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THIS WEB SITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEB SITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THIS WEB SITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THIS WEB SITE.
13. Revisions to these Terms and Conditions. These Terms and Conditions may be revised at any time and from time to time by updating this posting. You should visit this page from time to time to review the then current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by legal notices or terms located on particular pages of this Web Site. When we change the policy in a material manner we will update the ‘last updated’ date below.
14. Termination. You or we may suspend or terminate your account or your use of this Web Site at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.
15. Indemnity. You agree to indemnify and hold Sheer Science and their subsidiaries, officers, directors, employees, successors and assigns, harmless from any claim, loss or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of our Web Site, your connection to our Web Site, your violation of these Terms and Conditions, or your violation of any rights of another party. This indemnity survives termination of these Terms and Conditions. Sheer Science reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Sheer Science in asserting any available defenses.
16. Domestic Use; Export Restriction. We control the Web Site from our offices within the United States of America. We make no representation that the Web Site or its content (including, without limitation, any products or services available on or through the Web Site) are appropriate or available for use in other locations. Users who access the Web Site from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Web Site may be downloaded in violation of United States law.
17. General. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision by us, and no waiver of any term shall be deemed a further or continuing waiver of such term or any other term. These Terms and Conditions, together with any amendments and any additional agreements you may enter into with Sheer Science, shall constitute the entire agreement between you and Sheer Science. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and this shall not affect the validity of the other provisions of our Terms and Conditions, which shall remain in full force and effect. These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sheer Science without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
18. Binding Arbitration / Class Waiver.
(a) YOU EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND SHEER SCIENCE (AND/OR SHEER SCIENCE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, YOUR USE OF THE WEB SITE, OR YOUR PURCHASE OR USE OF ANY PRODUCTS OR SERVICES OFFERED BY SHEER SCIENCE OR THROUGH THE WEB SITE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, AND INCLUDING BUT NOT LIMITED TO CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THESE TERMS OR SHEER SCIENCE'S PRIVACY POLICY AND PRACTICES (COLLECTIVELY "DISPUTES"), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY "RULES AND PROCEDURES"). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.
(b) Informal Dispute Resolution: If either you or we intend to arbitrate any Dispute(s), the party seeking arbitration must first notify the other party of the Dispute(s) in writing at least 60 days in advance of initiating the arbitration. Notice to Sheer Science must be sent by first-class mail, FedEx, or UPS to: 777 Yamato Road, Suite 111; Boca Raton, Florida 33431. Notice to you will be to your email address(es) and street address(es), if any, that we have in our records at the time the notice is sent. A notice is only valid if it pertains to, and is on behalf of, a single individual. A notice provided or brought on behalf of multiple individuals is invalid as to all. The notice must include (i) the name, telephone number, mailing address, and email address of the person or entity seeking arbitration; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy; (iv) the original personal signature of the party seeking arbitration; and (v) the original personal signature of any legal counsel or other representative purporting to represent the party seeking arbitration. For purposes of this paragraph, “original personal signature” does not include any digital, scanned, electronic, copied, or facsimile signature. An original personal signature on the notice certifies the following: (i) the notice is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The original personal signature by the party seeking arbitration shall verify under penalty of perjury that the factual statements contained in the notice are true and
correct. Compliance with this paragraph tolls any applicable statute of limitations (as well as Section 18.p) as to any Dispute(s) stated in the notice that are subject to arbitration pursuant to this Section 18. After receipt of the notice, you and Sheer Science agree to personally meet and confer, via telephone or videoconference, to attempt to resolve the Dispute(s). If you are represented by counsel, your counsel may participate in the conference, but you shall also personally attend the conference, unless Sheer Science states in writing that you are not required to personally attend. If you and Sheer Science are unable to resolve the Dispute(s) within 60 days, either party may then proceed to file a claim for arbitration in accordance with the Dispute Resolution provisions below.
The aforementioned Informal Dispute Resolution process, including the written description and your personal participation in the meet and confer, is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. You and Sheer Science agree that any relevant limitation periods and filing fees or other deadlines will be tolled while the parties engage in this Informal Dispute Resolution process. You further agree that whether a complaining party has satisfied these Informal Dispute Resolution procedures, including whether the written description contained all required information, is an issue that can be decided by a court as a prerequisite for arbitration. (c) Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Sheer Science will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Sheer Science also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.
(d) The arbitration may be conducted in Chicago, Illinois or, upon the plaintiff's request, in the city closest to plaintiff's location where AAA maintains an office, unless the parties agree otherwise in writing. The arbitrator's award shall be final and binding on all parties subject to these Terms and may be entered as a judgment in any court of competent jurisdiction.
(e) The arbitrator will follow these Terms and the law. The arbitrator shall not have the authority to commit errors of law or legal reasoning. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party, though the individual relief awarded by the arbitrator may incidentally affect non-parties.
(f) If the amount in controversy does not exceed $10,000 then the arbitration will be conducted solely on the basis of documents you and Sheer Science submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. If the amount in controversy exceeds $10,000 either party may request (or the arbitrator may determine) to hold a hearing.
(g) If the arbitrator finds that a party’s claim, counterclaim, or appeal was frivolous, asserted in bad faith, or pursued for purposes of harassment, the arbitrator shall award the opposing party its attorneys’ fees, costs, and expenses and all amounts charged by AAA for the arbitration.
(h) You or Sheer Science may file such dispositive motions with the arbitrator as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator may stay all further action and deadlines in the arbitration until deciding such motion.
(i) Any award in any arbitration initiated hereunder shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages in any arbitration initiated under this section, except as may be required by statute. Nothing in this section shall be deemed as preventing Sheer Science from seeking injunctive or other equitable relief from the courts as necessary to protect any of Sheer Science’s proprietary interests.
(j) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
(k) Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (1) a violation of your or Sheer Science's intellectual property rights in any manner; or (2) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the "Governing Law" section below, and both parties consent to exclusive jurisdiction and venue in such courts. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
(l) To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise.
(m)YOU AND SHEER SCIENCE AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION. YOU AND SHEER SCIENCE EACH AGREE TO WAIVE THE RIGHT TO HAVE ANY DISPUTE OR CLAIM SUBJECT TO THE ARBITRATION AGREEMENT BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED AS A CLASS ARBITRATION OR CLASS ACTION.
(n) Process for Arbitration of Bellweather Demands. If more than twenty-five (25) demands for arbitration of a dispute or claim are initiated (i) that involve questions of law or fact common with your Dispute(s) and (ii) where the initiating parties are represented by the same law firm(s) or organization(s) or the demands are presented by or with the assistance or coordination of the same law firm(s) or organization(s), then such demands, including yours, shall be coordinated pursuant to this paragraph. The group of claimants and group of respondents shall each select five (5) demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned to a different arbitrator chosen from its national roster. While the Bellwether Demands are adjudicated, no other demand for arbitration that is subject to this section may be filed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Demand(s) with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance.
You agree to cooperate in good faith with Sheer Science and AAA to implement the Bellwether Demands approach, including the payment of combined reduced fees, set by AAA in its discretion. Any party may request that AAA appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as whether the Bellwether Demands process is applicable or enforceable. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s costs shall be paid by Sheer Science, unless the Administrative Arbitrator determines that the party seeking a decision by the Administrative Arbitrator did so by raising issues that were frivolous, asserted in bad faith, or pursued for purposes of harassment, in which case the losing party shall pay all costs associated with the Administrative Arbitrator’s decision.
The results of the Bellwether Demands will be given to a mediator from AAA selected from an initially proposed group of 5 mediators, with Sheer Science and the non-Bellwether Demands claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands. After the results are provided to the mediator, Sheer Science, the mediator and the remaining claimants will have 60 days (the “Mediation Period”) to agree on a resolution.
If the Mediation Period expires without a resolution or other agreement to the substantive methodology for resolving the outstanding demands (or if the Bellweather Demands process is determined by the arbitrator or court of competent jurisdiction to be void or unenforceable), either Sheer Science or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period (or within 60 days of a determination the Bellweather Demands process is void or unenforceable). If neither Sheer Science nor the remaining claimants opt out, the arbitrations may proceed as individual arbitrations.
(o) No arbitration award or decision shall have any preclusive effect in other arbitrations or other litigation, except to preclude the same or similar claims from being re-litigated between the same parties.
(p) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site, these Terms and Conditions, or your purchase or use of any products or services offered by Sheer Science or through the Web Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(q) Severability. If any part of this Section 18 is found by a court of competent jurisdiction to be unenforceable or invalid, the court will reform the agreement to the extent necessary to cure the unenforceable part(s), and the parties will arbitrate their Dispute(s) without reference to or reliance upon the unenforceable part(s), unless this Section 18 otherwise expressly permits the Dispute(s) to be brought in court. However, if for any reason (i) any Dispute(s) subject to Section 18 of these Terms are filed or submitted as a class arbitration, class action, collective action, or representative action and (ii) if the Class Action Waiver is held invalid or unenforceable as to such Dispute(s) or portion thereof, then the agreement to arbitrate contained in Section 18 of these Terms does not apply to the Dispute(s) or portion thereof and such Dispute(s) or portion thereof must be brought in a federal or state court located in, respectively, Chicago, Illinois, or the federal district in which that county falls, but the remainder of the agreement to arbitrate will be binding and enforceable.
(r) The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of Section 18 of these Terms and Conditions. If the FAA is found not to apply to any portion of Section 18 of these Terms and Conditions, then the applicable laws of the State of Florida shall apply without regard to choice-of-law.
19. Choice of Law; Jurisdiction. These Terms and Conditions supersede any other between you and Sheer Science to the extent necessary to resolve any inconsistency or ambiguity between them. Except as otherwise expressly stated in these Terms and Conditions, these Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. A printed version of these Terms and Conditions shall be admissible in any arbitration, judicial, or administrative proceeding to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Also, to the limited extent these Terms and Conditions expressly permit a Dispute to be brought in court (other than small claims court) rather than arbitration, any such judicial action shall be brought only in the federal or state courts of the State of Florida.
20. Autorenew. The price of the Services and/or Products is payable in full before delivery. When you first sign up for a subscription to a Power Swabs subscription plan (a “Plan”), you are charged only for the first delivery of the Plan at the time of your Plan selection. All Plans are continuous AUTORENEWING subscription plans, and you will be charged the applicable price listed for the Plan that you select every 30-180 days, based on your plan until your subscription is canceled. If you wish to pause, cancel or modify your subscription to a Plan, you can do so at any time, however, except as noted otherwise below, any amounts charged to or paid by you prior to such pause or cancellation will not be refunded, and pauses or cancellations may not impact any order for which you have already been charged, depending on the state of the order. You authorize us to continue billing the credit card on file during the term of your subscription plan until and unless the subscription plan ends or is paused or canceled in accordance with the foregoing guidelines and policies. It is your responsibility to keep your payment method up-to-date, as well as to cancel your membership as described in the password-protected customer portal should you wish to discontinue your subscription.
At this time our subscription program is only available to residents of the contiguous United States, Hawaii, and Alaska. We do not offer this as an option for international orders, including Canada.
21. Changes to Plans. We may change the price of a Plan, introduce new Plans, or remove Plans from time to time, and will communicate any price or Plan changes to you in advance in accordance with this Agreement should it impact your individual active subscription. Price and Plan changes will take effect as of the next billing period following the date on which we provided notice to you of the price or Plan change. By continuing to use Power Swabs Auto delivery after the effective date of a price or Plan change, you indicate your acceptance of such price or Plan change. If you do not agree with a price or Plan change, you have the right to reject the change by canceling your subscription(s) prior to the effective date of the price or Plan change. Please make sure you read any notifications of price or Plan changes carefully. Your purchases may be subject to applicable sales tax, use tax, value added tax, or other similar taxes, duties, or tariffs (collectively, “Sales Taxes”). In the event that Sales Taxes apply, we, our designated third-party payment provider, or a Payment Processor, as applicable, will collect the required Sales Taxes from you and remit it to the applicable tax authorities. Under most circumstances, the applicability of Sales Taxes will be determined by the residence of the person or entity making the purchase. We will not be responsible for any taxes on net income, or other taxes, duties, or tariffs associated with your acquisition, purchase, or possession of Plans, except for Sales Taxes as described herein or as required by applicable law.
Sheer Science reserves the right to terminate any subscription or order for any reason without warning, including but not limited to suspected abuse of the program, changes or elimination of the program, and purchasing with the intent to distribute without authorization.
Power Swabs
777 Yamato Road
Suite 111
Boca Raton, Florida 33431
TELEPHONE:
(866) 966-7645
Customer Service: (800) 535-4693
EMAIL
customercare@powerswabs.com
Last Updated: 5/2024
21. Changes to Plans. We may change the price of a Plan, introduce new Plans, or remove Plans from time to time, and will communicate any price or Plan changes to you in advance in accordance with this Agreement should it impact your individual active subscription. Price and Plan changes will take effect as of the next billing period following the date on which we provided notice to you of the price or Plan change. By continuing to use Power Swabs Auto delivery after the effective date of a price or Plan change, you indicate your acceptance of such price or Plan change. If you do not agree with a price or Plan change, you have the right to reject the change by canceling your subscription(s) prior to the effective date of the price or Plan change. Please make sure you read any notifications of price or Plan changes carefully. Your purchases may be subject to applicable sales tax, use tax, value added tax, or other similar taxes, duties, or tariffs (collectively, “Sales Taxes”). In the event that Sales Taxes apply, we, our designated third-party payment provider, or a Payment Processor, as applicable, will collect the required Sales Taxes from you and remit it to the applicable tax authorities. Under most circumstances, the applicability of Sales Taxes will be determined by the residence of the person or entity making the purchase. We will not be responsible for any taxes on net income, or other taxes, duties, or tariffs associated with your acquisition, purchase, or possession of Plans, except for Sales Taxes as described herein or as required by applicable law.
Sheer Science reserves the right to terminate any subscription or order for any reason without warning, including but not limited to suspected abuse of the program, changes or elimination of the program, and purchasing with the intent to distribute without authorization.
Power Swabs
777 Yamato Road
Suite 111
Boca Raton, Florida 33431
TELEPHONE:
(866) 966-7645
Customer Service: (800) 535-4693
customercare@powerswabs.com
Last Updated: 5/2024