Terms and Conditions
Last Updated: 4/29/2022
PLEASE READ THESE TERMS OF SERVICE (THE “TERMS”) CAREFULLY. These Terms apply to and govern your access to and use of any website, mobile website, social media site, software, email exchange of information, and any other digital platform, including any services, features, pages, and functions contained or offered therein, including any transactions, orders, sales, purchases, or the acquisition of goods or products (collectively the “Service”), that are owned, operated, or provided by O POSITIV, Inc.’s or any of its subsidiaries, divisions, and affiliates (“O Positiv,” “us,” “we,” or “our”),
By using the Service, you agree that you are at least the legal age of majority in the jurisdiction in which you reside or, if you are not, that you have obtained parental or guardian consent. The Service is not targeted for use by children under the age of 18. IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) YOU ARE NOT AUTHORIZED TO USE THE SERVICE.
These Terms affect your legal rights, responsibilities, and obligations, govern your use of the Service, is legally binding, limit O Positiv’s liability to you, require you to indemnify O Positiv, and to settle certain disputes through arbitration. Your continued use of the Service affirms your agreement to these Terms. If you do not wish to be bound by these Terms or any future modifications or amendments to these Terms, do not use our Service.
We reserve the right to change these Terms at any time and at our sole discretion. Any changes to the Terms will be effective immediately upon posting and you agree to the new posted Terms by continuing your use of the Service. It is your responsibility to check periodically for any changes we may make to these Terms.
If we make any material changes, and you have registered to use the Service, we will also send an email to you at the last email address you provided to us. You agree that such modified Terms will be effective thirty (30) days after our notice to you, except for changes that relate to new features or for legal reasons, which will become effective immediately. Your continued use of the Service after our provision of notice to you will constitute your affirmative acceptance to the modified Terms. If you do not agree to, or cannot comply with, the Terms as amended, you must stop using the Service. Otherwise, your continued use of the Service constitutes your acceptance of such change(s).
These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. To the extent any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.
OWNERSHIP OF SERVICE
The Service and all of its content, including without limitation all copyrights, patents, trademarks, service marks, and trade names, as well as all logos, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof, and all other intellectual property (collectively referred to as the “Content”), are all proprietary and owned or controlled by O Positiv, our licensors, and certain other third parties. All right, title, and interest in and to the Content available via the Service is the exclusive property of and owned by O Positiv, our licensors or certain other third parties, and is protected by United States and international copyright, trademark, trade dress, patent or other intellectual property and unfair competition rights and laws to the fullest extent possible.
We grant you a limited, revocable, nontransferable license to access and use the Service for your personal, non-commercial use, and to copy, distribute and transmit the content of the Service only to the extent that such copying, distribution and transmission is automatically done through your browser software incidentally to using the Service for your personal use and its intended functionality. This is not a transfer of title, right, or interest in the Service or Content. The license does not give you the right to, and you are strictly prohibited from, modifying or copying the Content, using the Content for any commercial purpose, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of O Positiv or its licensors. This license shall automatically terminate if you violate any of these restrictions and may be terminated by O Positiv at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
The sale or linking of our products on or to any third party e-commerce website, social media site, marketplace, or mobile application without our specific written consent is expressly prohibited.
ANY USE OF THE SERVICE NOT SPECIFICALLY PERMITTED UNDER THESE TERMS IS STRICTLY PROHIBITED.
O Positiv owns and uses several trademarks on the Service, including but not limited to: O POSITIV, O POSITIV WELLNESS, FLO, FLO BIOTICS, GTFO, RETRO, DISCO, and GOGO and related designs and logos. All rights reserved.
Some features of the Service may now or in the future allow you to provide content, such as written comments or reviews, to be transmitted to O Positiv or published or displayed on public areas of the Service or otherwise communicated to O Positiv including but not limited to ideas, suggestions, documents, proposals, feedback, or any other communications (“User Content”). All content submitted by you to us or through the Service, including by email, may be retained by us indefinitely, even after you terminate your account. By submitting any User Content, you represent and warrant that you have all rights necessary to submit the User Content and grant to O Positiv a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use the User Content in any manner, including to create derivative works, without any compensation or notice to you. Your User Content may be posted and transmitted to others at your own risk, and we have no obligations with respect to same, including without limitation no obligation of confidentiality. We cannot control the actions of other users of the Service with whom you may choose to share your User Content.
Some features that may be available on the Service require registration or the creation of a password protected account. You agree to provide true, accurate, current and complete information about yourself in connection with your account. If you register or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials, for restricting access to your account, and for all activity under your account.
You are solely responsible for your registration information and for updating and maintaining it. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your account. O Positiv may assume that any communications it receives through your account have been made by you unless we receive notice otherwise. You will immediately notify us at the email address listed below, if you have reason to believe or become aware of any loss, theft, or unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use. You will not sell, transfer, or assign your account or any account rights. Accounts may only be set up by the individual that is the subject of the account, and who is of the age of majority. We do not review accounts for authenticity and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate in our sole and exclusive discretion, without notice.
YOU ARE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THE SERVICE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS, TRANSMISSIONS, ORDERS, PAYMENTS, FINANCIAL TRANSACTIONS, AND OTHER OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
SUBSCRIPTION RENEWAL AND CANCELLATION
We offer our customers a subscription option that is an automatic, recurring subscription to our products in an frequency, quantity, and variety of your choosing based on the options available. You can find specific details regarding your subscription by logging into your account and accessing the “Manage Subscriptions” page or by emailing us at email@example.com with your order number(s) and email address.
By purchasing a subscription, you acknowledge that your subscription has an initial and recurring monthly subscription fee and you accept responsibility for all recurring charges prior to cancellation. Your subscription will continue and automatically renew unless and until you cancel it. YOUR SUBSCRIPTION WILL CONTINUE INDEFINITELY UNTIL TERMINATED BY YOU OR US IN ACCORDANCE WITH THESE TERMS.
You agree that your account will be subject to this automatic renewal and you will be responsible for payment of each renewal unless you cancel your subscription prior to the start of the next subscription period. By subscribing, you authorize us to charge your payment provider now, and again at the beginning of any subsequent subscription period. If your payment details change, your card provider may provide us with the updated payment details. We reserve the right to use these updated details for future charges in order to help prevent any interruption to the delivery of service. Upon renewal of your subscription, if O Positiv does not receive payment from your payment provider, (a) you agree to pay all amounts due on your account upon demand and (b) you agree that O Positiv may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
The specific dollar amount charged for repeat deliveries may differ from the amount charged for the initial subscription order or other repeat deliveries if coupon or promo codes are used or if prices are updated by O Positiv. We will notify you of any changes to the cost prior to billing you.
If you want to cancel your subscription, please log in to your account and go to the “Manage Subscriptions” page or contact us at firstname.lastname@example.org. If you choose to cancel your subscription prior to the next subscription period, we will terminate your subscription and will not charge your payment provider for the subsequent subscription period. You may also update the date for your next delivery or skip an upcoming delivery - you will not be charged for skipped deliveries.
You agree that we may either terminate or suspend your subscription for any reason at any time in our sole discretion. You will not be responsible for payment of any subscription terminated or suspended by us.
PRODUCTS, PRICING, AND PURCHASES
O Positiv attempts to be as accurate as possible with its listings, descriptions, and images of products as well as other content. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications, or prices). Such information including the price and the availability of any product are subject to change at any time without notice.
O Positiv cannot confirm the price or availability of a product until after your order is placed. Pricing or availability errors may occur on the Service. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product. O Positiv reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from O Positiv. O Positiv may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products may be different from prices available through other retailers.
Promotional codes, discounts, and offers (“Promotions”) are limited in nature and may expire or be discontinued with or without notice. Promotions are void where prohibited by law. Promotions may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. We reserve the right in our discretion to impose conditions on the offering of any Promotions. Other Promotions, including sweepstakes, contests, raffles, surveys, or games, may be governed by rules that are separate from or supplement these Terms. If you participate in any Promotions, please review the applicable rules. If the specific rules for a Promotion conflict with these Terms, the Promotion rules will govern.
Product prices will be displayed in United States Dollars. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the products, as well as all shipping and handling charges and applicable taxes and currency conversion fees.
You represent and warrant that you have the right to use any credit card or other means of payment that you provide to us. All billing information you provide to us must be current, complete, truthful and accurate. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. Providing any untruthful or inaccurate information is a breach of these Terms and may result in cancellation of your order. Prior to accepting an order, we may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will attempt to contact you if all or any portion of your order is canceled or if additional information is required to accept your order. O Positiv may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.
We are not responsible for any fees or charges that your bank or credit card issuer may apply.
O Positiv reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. We will attempt to notify you should such limits be applied. O Positiv also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms, “reselling” will be defined as purchasing or intending to purchase any product from O Positiv for the purpose of engaging in a commercial sale of the same product to a third party. We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction.
We are not responsible for any fees or charges that your bank or credit card issuer may apply.
We encourage everyone to try our products for 2 months and have a 60-day happiness guarantee / refund policy. If you are not satisfied with our products, you can request to be refunded for up to two bottles within 60 days of your very first purchase. The refund will be issued for the amount you paid for the product to the form of payment used for the purchase. Unless otherwise instructed, you do not need to return the bottle(s) to receive the refund. Note that shipping is non-refundable and refunds do not include the cost of shipping.
If you would like to receive a refund, please contact us email@example.com. Refunds will be issued by us in our sole discretion.
A third-party carrier will ship any merchandise you purchase from our Service. The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier.
While we will work diligently to ensure that products are delivered in the indicated time, you agree that O Positiv will not be liable for any delays in shipping or delivery resulting from the action or inaction of any shipping or carrier service utilized by O Positiv.
If an ordered product does not arrive to a destination within the continental United States within a month of the order without notice of justifiable delay on behalf of O Positiv, or if an ordered product arrives damaged, broken, or otherwise defective, O Positiv will work with you to address whatever issue you may have.
SMS/MMS MOBILE MESSAGING MARKETING PROGRAM
O Positiv offers a mobile messaging program (the “Program”), where, if you opt-in to the Program, you agree to these Terms and to receive marketing text messages from us through our third party service provider Voyager. The Program is optional and not a condition of purchase. The Program allows Users to receive SMS/MMS mobile messages by voluntarily and affirmatively opting into the Program, such as through online or application-based enrollment forms. The messages we send to you include marketing messages, and may also include cart abandon messages, as well as messages allowing you to make purchases using previously-saved account information, and messaging frequency may vary. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Regardless of the opt-in method you utilized to join the Program, you agree that these Terms apply to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from O Positiv. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of O Positiv’s mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving mobile messages. Under no circumstances will we be responsible for any messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.
SMS/MMS MOBILE MESSAGING OPT-OUT: If you do not wish to continue participating in the Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from O Positiv in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
DUTY TO NOTIFY AND INDEMNIFY REGARDING SMS/MMS MOBILE MESSAGING: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the opt-out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with us. For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Opt outs should be submitted in accordance with the procedures set forth above.
The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control; O Positiv is not liable for delayed or undelivered mobile messages.
You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
MMS DISCLOSURE: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICE AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE SERVICE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE SERVICE AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE SERVICE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICE (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE SERVICE, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE SERVICE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SERVICE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE SERVICE, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE SERVICE OR FROM ANY INFORMATION OR MATERIALS ON THE SERVICE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO ACCESS AND USE THE SERVICE.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF A PARTY’S LIABILITY WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE, FRAUD, OR ANY OTHER MATTER, THEN SUCH PARTY’S LIABILITY WILL NOT BE LIMITED OR EXCLUDED TO THE EXTENT OF SUCH PROHIBITION UNDER SUCH APPLICABLE LAW.
DISCLAIMER OF MEDICAL ADVICE
THIS SERVICE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THIS SERVICE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. THE SERVICE AND ITS CONTENT ARE FOR INFORMATIONAL PURPOSES ONLY. THE SERVICE IS NOT INTENDED TO BE 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 OR TREATMENT. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS SERVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
Except to the extent prohibited under applicable law, you agree to indemnify, defend and hold harmless O POSITIV, Inc., its officers, directors, employees, agents, licensors and suppliers from and against all claims, losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, that may arise from or in connection with (a) your use of, or activities in connection with, the Service, including use of any good or product purchased through the Service or (b) violation of these Terms by you. If you fail to promptly indemnify and defend a covered claim, O Positiv shall have the right to defend itself, and in such case, you shall promptly reimburse O Positiv for all of its associated costs and expenses.
THIRD-PARTY LINKS AND SITES
The Service may provide links to other third-party websites (“Linked Sites”). O Positiv has not reviewed all of the information on the Linked Sites, does not maintain any of the Linked Sites, and cannot control the completeness, accuracy, or security of the content contained on any Linked Site. The content of, including materials and information contained on, any Linked Site is solely the responsibility of the provider of that Linked Site. O Positiv is not responsible for the contents of any such Linked Site, and the inclusion of any link to a Linked Site does not imply endorsement by O Positiv of the Linked Site. Use of any such Linked Site is at the user’s own risk.
The views and opinions expressed in Linked Sites are those of the authors or third parties and do not necessarily reflect the official policy or position of O Positiv. If you decide to access any Linked Site, you do this entirely at your own risk. References to any names, marks, products, or services of any third parties, third-party information, or Linked Sites are provided solely as a convenience to you, and do not constitute or imply an endorsement, sponsorship or recommendation of, or affiliation with, the third party or its products and services. O Positiv makes no representation or warranty as to any Linked Site, content, products or services, and you agree that O Positiv shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, products, or services available on or through any Linked Site or similar resource.
AS PERMITTED BY APPLICABLE LAW, WE SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR SPECIAL LOSS, OR OTHER DAMAGE, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, DEFAMATION, INFRINGEMENT OF COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS, CAUSED BY THE EXHIBITION, DISTRIBUTION, OR EXPLOITATION OF ANY INFORMATION OR CONTENT CONTAINED WITHIN THESE THIRD-PARTY SERVICES.
By accessing the Service, you agree that the laws of the United States and the state of California, without regard to conflicts of laws principles, will apply to all matters relating to the Service. You further agree that any litigation, action, or proceeding arising out of or related to these Terms shall be subject to the sole and exclusive jurisdiction of the state of California and that venue shall be in an appropriate state or federal court located in Los Angeles County, California. You hereby submit to the jurisdiction and venue of said courts and consent to service of process by email in any legal proceeding.
Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the 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.
CLASS ACTION WAIVER
You and O Positiv agree that each party may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine any dispute, claim or controversy of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding in any court of competent jurisdiction in California, and not in arbitration.
ENTIRE AGREEMENT; SEVERABILITY
These Terms and other O Positiv policies cited herein constitute the entire agreement between you and O Positiv and govern your use of the Service, superseding any prior agreements between you and O Positiv relating to your use of the Service. You will be subject to additional terms and conditions when you purchase products or participate in a sweepstakes, contest, or other promotion. If any provision of these Terms is held to be invalid by any law, rule, order, or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of the Terms. The failure of O Positiv to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.
O Positiv complies with the copyright notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice. We may share any notices and counter-notices submitted to us with others including your contact information, and by submitting any notices, you agree you have no expectation of privacy in your submission.
Content owners of copyrighted material or their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place on our Service. The abuse team will only consider valid reports of infringement, and you may submit a complete DMCA notice that features all of the points described below only if the representing party sending the request is the content owner or the authorized agent acting on behalf of the copyright owner. If you are not sure if O Positiv has control over the allegedly infringed content, please obtain legal representation before contacting us. To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for O Positiv to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the copyrighted work claimed to have been infringed, or, if a single notification covers multiple copyrighted works at a single online site, a representative list of such works at that site, including citation to the applicable copyright registrations where available;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit O Positiv to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact, as well as a hyperlink or URL to the website or online content at issue;
4. Information reasonably sufficient to permit O Positiv to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to the below contact with the subject line “DMCA NOTICE:”
O Positiv Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804
Please note if any notification of claimed infringement does not meet the above requirements, O Positiv has no responsibility to respond to or act on any such defective notification of claimed infringement.
If you receive a notification of claimed infringement, you may submit a counter notification to us under the DMCA. It must include the following, which includes a certification made under penalty of perjury:
1. Your physical or electronic signature, as well as information sufficient for O Positiv to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the Central District of California, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or the Complainant’s authorized agent.
Any such counter notification must be sent to:
O Positiv Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804
Please direct any questions you may have about the Service or these Terms to the following: email@example.com
Although O Positiv will in most circumstances be able to receive your communications, O Positiv does not guarantee that it will receive such communications timely and accurately and shall not be legally obligated to read, act on, or respond to any such email or other information. Be aware that your email communications to O Positiv may not be secure and will not be treated as confidential.