Terms and Conditions
TERMS OF SERVICE
Last Updated: 4/10/23
TABLE OF CONTENTS
- Accessing the Service and Account Security
- Intellectual Property Rights and Ownership of Service
- AUTOMATIC RENEWAL AND CANCELLATION OF SUBSCRIPTION POLICY
- Products, Pricing, and Purchases
- Accuracy of Information and Reliance of Information Posted
- SMS/MMS Mobile Messaging Marketing Program
- Disclaimers and Limitations of Liability
- Disclaimer of Medical Advice
- Information Collected About You
- Geographic Restrictions
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.
ACCESSING THE SERVICE AND ACCOUNT SECURITY
We reserve the right to withdraw or amend our Service at our sole discretion and without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.
If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Service using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
You are solely and fully responsible for all activities that occur under your username, password, or account. O Positiv may assume that any transaction, order, purchase, or communications it receives through your account have been made by you unless we receive prior notice otherwise. O Positiv expressly disclaims any liability from misuse of your account.
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 generally 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, with or 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.
INTELLECTUAL PROPERTY RIGHTS AND 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.
These Terms permit you to use the Service and Content for your personal, non-commercial use only. A limited, revocable, nontransferable license is granted to temporarily download one copy of the Content for personal, non-commercial transitory viewing only. 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, copying the Content, modifying 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. Except as expressly provided in these Terms, no assignments or license of intellectual property are granted by O Positiv.
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. You must not use such marks without the prior written permission of O Positiv. All rights reserved. All other names, logos, product and service names, designs, and slogans on the Service are the trademarks of their respective owners.
AUTOMATIC RENEWAL AND CANCELLATION OF SUBSCRIPTION POLICY
We offer our customers a subscription option that is an automatic, recurring subscription to our products in a frequency, quantity, and variety of your choosing based on the options available (each a “Subscription”). 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 and agree that PAYMENTS ARE CHARGED ON THE DAY YOU SIGN UP FOR THE SUBSCRIPTION AND THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT EITHER A MONTHLY, BI-MONTHLY, OR QUARTERLY FREQUENCY, DEPENDING ON THE SUBSCRIPTION OPTION YOU SELECT, AT THE PRICE PRESENTED TO YOU AT CHECKOUT, WHICH WILL DEPEND ON THE PRODUCT YOU DECIDE TO PURCHASE AND ANY APPLICABLE TAX.
YOUR SUBSCRIPTION WILL CONTINUE INDEFINITELY UNTIL CANCELLED BY YOU OR TERMINATED US IN ACCORDANCE WITH THESE TERMS.
You further acknowledge and agree that your Subscription has an initial and recurring fee (“Subscription Fee”), which shall be determined by the quote accepted by and provided to you when you purchase a Subscription. By purchasing a Subscription, you accept responsibility for, and agree to pay, all Subscription Fees, plus any applicable tax, prior to cancellation of your Subscription. You affirmatively and expressly authorize us to charge your payment provider when your Subscription begins, and again at the beginning of any subsequent renewal term. 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 the 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.
If the regular price to renew your Subscription increases, or any terms regarding the automatic renewal or your Subscription changes, O Positiv will notify you of any such increase or change in writing prior to the commencement of the next renewal term to or in which the increase or change applies.
YOU MUST CANCEL YOUR SUBSCRIPTION BEFORE IT RENEWS TO AVOID INCURRING A SUBSCRIPTION FEE FOR THE NEXT RENEWAL TERM. You may cancel your Subscription at any time. The account will remain active for the remainder of your billing cycle, but you will not be charged for the next renewal term unless you purchase another Subscription.
If you want to cancel your subscription, please log in to your account, go to the “Manage Subscriptions” page here, and select the Subscription you would like to cancel. You may also contact us at firstname.lastname@example.org. If you choose to cancel your Subscription prior to the next renewal period, we will terminate your Subscription and will not charge your payment provider for the subsequent renewal 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.
If you have any questions about automatic renewal, your Subscription, or our cancellation procedures, please contact us at email@example.com.
PRODUCTS, PRICING, AND PURCHASES
All Content, including specifications, products, and prices of products, on this Service is subject to change at any time without notice. Certain measures and descriptions are approximate and are provided only for your convenience. O Positiv makes all reasonable efforts to accurately display the attributes of its products, including the applicable colors. The actual color you see, however, may depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
The inclusion of any products or services on the Service at a particular time does not imply or warrant that these products or services will be available at any time. 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. We may, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We also 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. We may further limit, including without prior notice, 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. We may also refuse service to any customer.
O Positiv 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 also may require verification of information prior to the acceptance or shipment of any order. 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 the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner.
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.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations.
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 or account.
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.
If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
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 firstname.lastname@example.org Refunds will be issued by us in our sole discretion.
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 Site. A third-party carrier will ship any merchandise you purchase from our Service. All purchases from this Site are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the Service 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. By using the Service, you acknowledge and agree that you are responsible for filing any claims with carriers for damaged or lost shipments.
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.
ACCURACY OF INFORMATION AND RELIANCE ON INFORMATION POSTED
The information presented on or through the Service is made available solely for general information purposes. O Positiv attempts to ensure that information on this Service is complete, accurate, and current. However, despite our efforts, the information on the Service may occasionally be inaccurate, incomplete, or out of date. Accordingly, we do not warrant the completeness, accuracy, timeliness, or usefulness of any information on this Service, and any reliance you place on such information is strictly at your own risk. For example, products included may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Service. In addition, we may make changes in information about price and availability without notice.
The material on the Service is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Service is at your own risk.
The Service may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Service at any time, but we have no obligation to update any information on our Service. You agree that it is your responsibility to monitor changes to our Service.
We disclaim all liability and responsibility arising from any reliance placed on any materials or information by you or any other visitor to the Service, or by anyone who may be informed of any of its contents. This Service may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, or reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the O Positiv, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the O Positiv. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
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. 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. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). 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.
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 email@example.com . 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. O Positiv and the carriers are 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 all applicable telemarketing laws, including but not limited to the Telephone Consumer Protection Act (“TCPA”), Florida Telemarketing Act, and Florida Do Not Call Act. For purposes of compliance, you agree that we may assume that you are a resident of a certain state if, at the time of opt-in to Program, (1) your shipping address, as provided, is located in that state or (2) the area code for the phone number used to opt-into the Program is an area code for that state. You agree that the requirements of a state’s telemarketing laws do not apply to you, and you shall not assert that you are resident of that state, if you do not meet either of the foregoing criteria or, in the alternative, do not affirmatively advise us in writing that you are a resident of the state by sending written notice to us. You further agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but 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” (e.g., for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616)), “telephone solicitation” (e.g., for purposes of the TCPA and state laws such as the Utah Telephone and Facsimile Solicitation Act and Washington Commercial Telephone Solicitation Act), or an otherwise unsolicited call or message that is subject to a telemarketing law, to the extent such laws are relevant and applicable.
MMS DISCLOSURE: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Creating or maintaining any link to any page or portion of the Service, or running or displaying this Service or any Content in any format without O Positiv’s prior written permission, is strictly prohibited. Any permitted links to this Service must comply will all applicable laws, rules, and regulations.
In the event you are permitted to link to this Service, you must also do so in a way that is fair and legal and complies with our Term, does not damage our reputation or take advantage of it, does not suggest any form of association, approval, or endorsement on our part. The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms.
You agree to cooperate with us in immediately ceasing any unauthorized display or linking of our Service or Content. We reserve the right to withdraw permission without notice, and we may disable all or any social media features and any links at any time without notice in our discretion.
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 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. 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, 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.
You may use the Service only for lawful purposes and in accordance with these Terms. You agree not to use the Service:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the O Positiv, a O Positiv employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm the O Positiv or users of the Service, or expose them to liability.
Additionally, you agree not to:
- Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.
- Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
- Use any manual process to monitor or copy any of the material on the Service, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Service.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service.
- Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Service.
Your User Contributions may be posted and transmitted to others at your own risk. We cannot control the actions of other users of the Service with whom you may choose to share your User Contributions. All User Contributions may be retained by us indefinitely, even after you terminate your account. By submitting any User Contributions, you grant to O Positiv a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use the User Contributions in any manner, including to create derivative works, without any compensation or notice to you. By providing any User Contribution on the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, transmit, publish, broadcast, develop, manufacture, market, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose whatsoever. O Positiv will have no liability related to any User Contributions.
You further represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
- All of your User Contributions do and will comply with these Terms.
- You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the O Positiv, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
- We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Service.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for the O Positiv.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service.
- Terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS O POSITIV AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We cannot review all material before it is posted on or through the Service, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards (the “Content Standards”) apply to any and all User Contributions and use of the Service. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Be posted through a false email address, while pretending to be someone other than yourself, or under any other circumstances that could mislead us or third-parties as to the origin of any User Contribution.
DISCLAIMERS AND LIMITATIONS OF LIABILITY
YOUR USE OF THE SERVICE IS AT YOUR RISK. 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, AND WITH RESPECT TO THE PRODUCTS LISTED OR PURCHASED ON OR THROUGH THE SERVICE.
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. THE MATERIALS ON THE SERVICE MAY BE OUT OF DATE, AND O POSITIV MAKES NO COMMITMENT AND ASSUMES NO DUTY TO UPDATE SUCH MATERIALS. O POSITIV MAKES NO WARRANTY THAT THE SERVICE WILL BE AVAILABLE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS OR DIRECTIONS ON 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, TIMELINESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE. WITHOUT LIMITING THE FOREGOING, O POSITIV HEREBY EXPRESSLY DISCLAIMS 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. O POSITIV MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
ADDITIONALLY, IN NO EVENT WILL O POSITIV, ITS RESPECTIVE MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, RETAIL PARTNERS, OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION, OR TRANSMISSION OF THE SERVICE, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE SERVICE, OR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, BUSINESS INTERRUPTION, 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 OR INABILITY TO USE THE SERVICE, ANY INFORMATION OR MATERIALS ON THE SERVICE, ANY LINKED SITES, OR THE MATERIALS, INFORMATION, OR SERVICES CONTAINED AT ANY OR ALL SUCH LINKED SITES. IN THE EVENT OF ANY PROBLEM WITH THE SERVICE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. MOREOVER, IN THE EVENT OF ANY PROBLEM OR DISSATISFACTION WITH THE PRODUCT THAT YOU HAVE PURCHASED ON OR THROUGH THE SERVICE, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY, IF ANY, IS TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT IN ACCORDANCE WITH THE RETURN POLICY POSTED ON 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.
If you are a California resident, you agree to consciously waive all claims, both known and unknown that may be later discovered, to the maximum extent permitted by law, including but not limited to that permitted by California Civil Code Section 1542, which states “[a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
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 and its officers, directors, employees, and agents from and against any claims, losses, liabilities, damages, costs, or expenses, including attorneys’ fees and costs, that may arise from or in connection with (a) your use of, or activities in connection with, the Service, including use of any good, product, or service purchased through the Service, (b) violation of these Terms by you, including any misrepresentations made by you in connection with your use of the Service, (c) your violation of any law or the rights of a third-party, and (d) the acts or omissions of any other user or third-party. 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. O Positiv reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification.
INFORMATION COLLECTED ABOUT YOU
O Positiv is based in the United States; as such, we provide the Service for use only by persons located in the United States. We make no claims that the Service or any of its Content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
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:
- 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;
- 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;
- 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;
- Information reasonably sufficient to permit O Positiv to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
- 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
- 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:
- 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;
- 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;
- 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
- 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 Middle District of Florida, 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
ARBITRATION, CHOICE OF LAW, AND VENUE
Any dispute, claim, or controversy arising out of or relating to these Terms, including the determination of the scope or applicability of this agreement to arbitrate, shall be submitted to and settled exclusively by binding arbitration, in accordance with the provisions of this section, subject only to any applicable requirement of law that you and O Positiv engage in a preliminary, non-binding mediation or arbitration. Binding arbitration shall be conducted in accordance with the American Arbitration Association’s rules (the “AAA Rules”). Arbitration shall be held in Orange County, Florida, and shall be held before an arbitrator selected pursuant to the AAA Rules who shall have no personal or pecuniary interest, either directly or indirectly, from any business or familial relationship with either you or us. The arbitrator(s) shall be bound to adjudicate all disputes in accordance with the laws of the State of Florida and all decisions of the arbitrator will be final, binding, and conclusive on you and O Positiv. Either you or O Positiv may seek confirmation of the arbitration award in the Florida state courts in and for Orange County, Florida, and both parties hereby consent to the exclusive jurisdiction and venue of the Florida state courts in and for Orange County, Florida, in any claim or action arising under this arbitration provision.
YOU AND WE ALSO AGREE TO WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL. ADDITIONALLY, UNLESS YOU AND WE AGREE OTHERWISE, 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, REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL PROCEEDING. ALSO, TO THE EXTENT AVAILABLE BY LAW, AND SUBJECT TO THE DAMAGE LIMITATIONS DISCUSSED HEREIN, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR, AND FOR THE BENEFIT OF, THE INDIVIDUAL PARTY SEEKING RELIEF.
All costs and expenses, including reasonable attorneys’ fees and experts’ fees, incurred by you or O Positiv in any dispute that is determined and settled by arbitration or some other proceeding pursuant to these Terms shall be borne by the party determined to be liable in respect to such dispute; provided, however, that if complete liability is not assessed against only one party, then you and O Positiv will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, you and we agree to continue performing their respective obligations under these Terms until the dispute is resolved.
If it is determined that arbitration is not permitted, has been waived, or is otherwise unavailable, then the sole and exclusive jurisdiction and venue for any action or proceeding arising out of or related to these Terms or the Service shall be an appropriate state or federal court located in Orange County, Florida, and you hereby submit and irrevocably consent to the personal jurisdiction of the State of Florida and the jurisdiction and venue of said courts. You agree that such courts are a convenient forum and that you will not seek to transfer an action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise. You further agree that the laws of the United States and the state of Florida, without regard to the principles of conflict of laws principles, shall govern these Terms and all matters relating to the Service. This paragraph shall not be read to conflict with the mandatory arbitration provision.
The failure of O Positiv of any term or condition set out in these Terms shall not be deemed waiver of such term or condition or a waiver of any other term or condition.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
You agree that regardless of any statute or law that establishes a different statute of limitations, to the maximum extent permitted under applicable law, any claim or cause of action (including any arbitration) arising out of, related to or connected with the use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
We may provide you information regarding your account and the Service in electronic form only. You agree that such notices and other communications sent electronically satisfy any legal communication requirements, including that requirements must be in writing.
Please direct any questions you may have about the Service or these Terms to the following: firstname.lastname@example.org
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.