Terms and Conditions
Note that Section 16 of these Terms contains a mandatory arbitration provision that requires each of us to the use of binding arbitration on an individual basis and limits the remedies available to us in the event of certain disputes. By agreeing to these Terms, each of us is giving up our right to bring our disputes before a jury or as a member of class action.
By accessing or using the services provided by Shinyalab through our websites or blogs, (collectively, the “Sites” and together with such services, the “Services”) you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Services in any way or order, receive or use the food products and/or dietary supplements made available through the Services (collectively, the “Products”).
If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.
Shinyalab reserves the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will provide notice of such changes, such as by sending you an email notification or providing notice through the Sites. By continuing to access or use the Services in any way after such notice has been provided, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services or order, receive or use the Products. If you do not agree to the revised Terms, you are free to reject them, but in that case you may not access or use the Services or order, receive or use the Products.
- Shinyalab Products are not intended to diagnose, cure, treat, or prevent any disease. The information, statements, and images used byShinyalab have not been reviewed by the Food & Drug Administration. Commitment to any of the Shinyalabs does not and is not meant to replace medical care. If you have an existing medical condition, including if you are actively trying to conceive, pregnant, or nursing, or take any medications, please consult with your doctor before committing to any of the Shinyalab products or making any Shinyalab recommended changes to your diet or exercise program. Please visit our Health Disclaimer page for more information.
- Eligibility. The Services/products are not targeted toward or intended for use by anyone under the age of 18. By using the Services/products, you represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, and (c) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
- Registration, Account and Communication Preferences. In order to access and use certain areas of the Sites or features of the Services, you will have the option to register for a Shinyalab account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.
By creating a Shinyalab account, you also consent to receive electronic communications from Shinyalab (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
- Terms of Sale.
- 5.1 Subscriptions.
- (a) Plans. In addition to selling products individually, Shinyalab offers a subscription service where we offer various subscription plans for the recurring delivery of our products (each purchase of any such plan, a “Subscription”). Our product offerings and available Subscription plans are described on our website, as applicable, at the time of purchase, and are subject to change at any time prior to purchase.
- (b) AUTOMATIC RENEWAL OF SUBSCRIPTION. WHEN YOU PURCHASE A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) SHINYALB (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON THE PERIODIC BASIS DESIGNATED BY YOUR CHOSEN SUBSCRIPTION PLAN FOR THE PRICE OF YOUR CHOSEN SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES SET FORTH DURING THE PURCHASE PROCESS) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR TERMINATE THE SUBSCRIPTION. THE RECURRING CHARGES FOR YOUR SUBSCRIPTION WILL BE SET FORTH DURING THE PURCHASE PROCESS.
- (c) CANCELLATION POLICY. IN THE EVENT THAT YOU WOULD LIKE TO CANCEL OR CHANGE YOUR SUBSCRIPTION SHIP DATE PRIOR TO INVOICE DATE, PLEASE LOG INTO YOUR ACCOUNT AT SHINYALAB.COM AND MODIFY YOUR SUBSCRIPTION AS NEEDED. YOU MAY ALSO EMAIL email@example.com PRIOR TO THE INVOICE DATE. IF CANCELLATION OCCURS AFTER THE INVOICE DATE THE CANCELLATION REQUEST WILL BE PROCESSED FOR THE NEXT SCHEDULED INVOICE. YOU ARE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION.
- You may have the ability from time to time to purchase Subscriptions for other people through the Services (“Gifts”). Gifts are not refundable or redeemable for cash, unless required by applicable law. Gifts must be redeemed for purchases through the Services in accordance with our then-current procedures for redemption, which may require the recipient to create their own account and agree to these Terms in order to redeem the Gift.
- 5.2 Payment and Billing Information. By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for all charges you incur for the purchase of any Subscriptions or other products (including any applicable taxes and other charges) (each such purchase, an “Order”). You are responsible for, and agree to pay, all such charges. If we or our third party payment processor cannot obtain authorization for charges to your payment method or if any amounts you authorize us to charge to your payment method are reversed or charged back for any reason, we may, at our option, in addition to any other remedies: cancel or suspend any undelivered portion of your Orders, make second and/or subsequent attempts to charge your payment method, and/or use any other lawful means to collect payment on any outstanding amounts due to us. You will remain responsible to pay all applicable charges for all Orders. You agree to provide and keep current a valid payment method. However, your failure to do so shall not constitute cancellation of any Order. In the event you want to change or update payment information associated with your Shinyalab account, you can do so at any time by logging into your account and editing your payment information.
- 5.4 Pricing. All prices shown via the Services are in U.S. dollars. Any applicable taxes and other charges, if any, are additional.
- 5.5 Availability. All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific food products, dietary supplements, or entire shipments) without prior notice.
- 5.6 Taxes. We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
- 5.7 Shipping and Handling. You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by FedEx, however we reserve the right to utilize other shipping carriers as needed. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export.
- 5.8 Deliveries. We endeavor to ship all orders within 24 business hours of receipt. Orders placed Friday afternoon through Sunday will be shipped the following business day. Shipping charges are calculated based on the speed of the shipping option you chose, plus the weight of the items. To reflect the policies of the shipping companies we use, all weights are rounded up to the next full pound. On rare occasions, the actual shipping and handling charge may differ slightly from the quoted charge. Any order over $50 is eligible for free Ground shipping within the US. Any order discrepancies must be reported within 14 days of receipt of product. You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. Any discrepancies can be reported by emailing firstname.lastname@example.org, along with a brief description and supporting photos. If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your Products is not feasible, we will cancel your delivery for the period so affected and issue you a credit or refund of the purchase price for that delivery.
- 5.9 NO RESALE. YOU ARE NOT PERMITTED TO RESELL OR OTHERWISE USE THE PRODUCTS FOR COMMERCIAL PURPOSES.
- 5.102 Returns and Refunds.
We do not accept product returns to protect the health and safety of our customers. If you received defective goods or an incorrect order, please contact email@example.com within fourteen (14) days of receipt. We will happily review your order and any reported issues and offer resolutions which may include replacement of the product in question or partial/full credit or refund.
In certain rare instances, such as if you received a defective product, we may request that you return a product for examination, in which case we will provide a shipping label. Alternatively, we may ask that you provide photos of the product labels, including lot number and expiration date, and any damage reported.
Any compensation (store credit, replacement, coupon codes, refund etc.) issued will be at the discretion of Shinyalab and can be subject to a 20% processing fee where necessary.
When placing your order, please enter your shipping address carefully to ensure accuracy and review your order confirmation email for any errors. If you enter the shipping address incorrectly when the order is placed, please email firstname.lastname@example.org immediately for correction. Any reship fees will be at the responsibility of the customer.
Should your shipping address change on any product subscriptions, please update prior to the invoice date via your account at shinyalab.com.
We do not issue refunds of any kind for purchases made through retail stores, practitioners, or third-party websites. If you purchase any product from a retail store, practitioner, or third-party website, the refund policy of that retail store, practitioner, or website shall apply.
- License to Access and Use Our Sites and Content. Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, all logos, trademarks, service marks, designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Shinyalab or our licensors or users, as applicable, and are protected by U.S. and international copyright and/or intellectual property laws.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Sites and Content for your own personal, non-commercial use in learning about and/or evaluating our Products and services. This grant of permission is not a transfer of title, and under this permission you may not remove any copyright, or other proprietary notations from the materials. The license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Shinyalab or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Shinyalab or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
- Trademarks. SHINYALAB, the Shinyalab logo and the other Shinyalab Product and service names, logos or slogans that may appear on the Sites or Products are trademarks or service marks of Shinyalab and may not be copied, imitated or used, in whole or in part, by you without our express prior written permission. You may not use any metatags or other “hidden text” utilizing “Shinyalab” or any other name, trademark or Product or service name of Shinyalab without our prior written permission. Unless otherwise indicated, all other names, logos, trademarks and service marks on the Sites are owned or licensed by Shinyalab, as the case may be, and may not be used, copied or imitated, in whole or in part, by you without our express prior written permission. The use or misuse of any of these marks or other information is strictly prohibited. You may not use any metatags or other “hidden text” utilizing “Shinyalab or any other name, trademark, service mark, Product name or service name of Shinyalab without our express prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute trade dress o fShinyalab and may not be copied, imitated or used, in whole or in part, without our express prior written permission. Reference to any third party products, services, processes or other information by name, trademark, service mark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Shinyalab.
- Hyperlinks. Shinyalab makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
- Third Party Content. We may display content, advertisements and promotions from third parties through the Services, including in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Shinyalab is not responsible or liable in any manner for such interactions or Third Party Content.
- User Conduct. You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not: Engage in any harassing, threatening, intimidating, predatory or stalking conduct; Use or attempt to use another user’s account without authorization from such user and Shinyalab; Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner; Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites; Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access; Develop any third party applications that interact with the Sites without our prior written consent; Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; Bypass or ignore instructions contained in the robots.txt file, that controls all automated access to the Sites; or use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- Feedback. We love to hear from you about your Shinyalab experience, simply email us at email@example.com. You are always free to submit questions, comments, suggestions, ideas, original or creative materials or other information about Shinyalab, the Sites or the Products (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Shinyalab. Shinyalab shall be free to use (and allow others to use) such Feedback, including, without limitation, all intellectual property rights in and to such Feedback, and shall be entitled to the unrestricted dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Shinyalab, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Shinyalab Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products, (b) any Feedback you provide, (c) your violation of these Terms, (d) your violation of the rights of another, (e) any third party’s use or misuse of the Sites or Products provided to you, and (f) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms. You agree to promptly notifyShinyalab of any third party Claims and cooperate with the Shinyalab Parties in defending such Claims. You further agree that the Shinyalab Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Shinyalab.
- Disclaimers. YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, PREPARATION, STORAGE, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. AS OUTLINED IN OUR HEALTH DISCLAIMER, WE URGE THAT YOU SPEAK TO YOUR MEDICAL PROVIDER BEFORE USING OUR PRODUCTS OR FOLLOWING ANY DIETARY RECOMMENDATIONS OR CHANGES IN ACTIVITY LEVEL ACCOMPANYING ONE OF SHINYALAB PRODUCTS. ALL SHINYALAB PRODUCTS ARE DESIGNED FOR ADULTS 18 AND OLDER. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND FOR VERIFYING THE PRODUCTS AND THEIR INGREDIENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT PRODUCTS ARE MANUFACTURED AND PACKAGED IN FACILITIES THAT MAY PROCESS ALL MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, AND TREE NUTS) AND WE CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY PRODUCT PRICING, DESCRIPTIONS, INGREDIENT LISTS, AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, OUR SITES, THEIR CONTENTS, AND ALL INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH OUR SITES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, SHINYALA, ITS SUBSIDIARIES, AND ITS AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO OUR SITES, THEIR CONTENTS, AND THE INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THESE SITES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHINYALAB, ITS SUBSIDIARIES, AND ITS AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THESE SITES; (D) THAT THE INFORMATION ON THESE SITES, INCLUDING NUTRITIONAL AND PRICING INFORMATION, IS ACCURATE, COMPLETE OR CURRENT; OR (E) THAT THESE SITES WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
IN THE EVENT OF AN ERROR IN THE SERVICES, INCLUDING IN AN ORDER CONFIRMATION, OR IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON OUR WEBSITES AND/OR MOBILE DEVICE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, DIFFERENCES IN HOW YOUR COMPUTER OR MOBILE DEVICE DISPLAYS TEXT AND/OR IMAGES, NATURAL VARIABILITY OF PRODUCTS, PREPARATION METHODS AND VARIABILITY OF EQUIPMENT AND APPLIANCES USED.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, service mark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
- Limitation of Liability; Release. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHINUYALAB BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM SHINYALA, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SHINYALA’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SHINYALA AND THE OTHER SHINYALA PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE SHINYALA MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF INGREDIENTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $100 OR THE AMOUNT YOU PAID TO US FOR THE PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE SHINYALA AND THE OTHER SHINYALA PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE SHINYALA AND THE OTHER SHINYALA PARTIES FROM AND AGAINST ANY SUCH SHINYALA PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IT IS NOT SHINYALA’S INTENT TO APPLY ANY EXCLUSION OR LIMITATION IN ANY JURISDICTION WHERE SUCH EXCLUSION OR LIMITATION IS NOT PERMITTED BY LAW.
- YOU HAVE ACCEPTED THESE TERMS WITH THE EXPRESS INTENTION OF EFFECTING THE LEGAL CONSEQUENCES PROVIDED BY SECTION 1541 OF THE CALIFORNIA CIVIL CODE, AND ANY OTHER FEDERAL, STATE, OR LOCAL LAWS OF SIMILAR EFFECT. YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542 (OR ANY FEDERAL, STATE, OR LOCAL LAWS OF SIMILAR EFFECT), WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- Dispute Resolution; Arbitration. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES EACH OF US TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF UNDER THESE TERMS. IN PARTICULAR, WE EACH AGREE TO GIVE UP OUR RIGHT TO BRING CERTAIN DISPUTES BEFORE A JURY OR RESOLVE CERTAIN CLAIMS IN COURT OR AS A MEMBER OF A CLASS ACTION.
- 16.1 Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (each, a “Dispute”) arising out of Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, service marks, trade names, logos, trade secrets or patents, you and Shinyalab agree (a) to waive your and Shinyalab’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Shinyalab’s respective rights to a jury trial. Instead, you and Shinyalab agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court) pursuant to the terms set forth in sections 16.2-16.9 below.
- 16.2 No Class Arbitrations, Class Actions or Representative Actions. You and Shinyalab agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products, except those Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, service marks, trade names, logos, trade secrets or patents, is personal to you and Shinyalab and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Shinyalab agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Shinyalab agree that an action seeking to resolve a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
- 16.3 Federal Arbitration Act. You and Shinyalab agree that these Terms affect interstate commerce and that the enforceability of this Section 16 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
- 16.4 Notice; Informal Dispute Resolution. You and Shinyalab agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Shinyalab shall be sent by email to firstname.lastname@example.org. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Shinyalab account and, if different, an email address at which you can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Shinyalab cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Shinyalab may, as appropriate and in accordance with this Section 16, commence an arbitration proceeding or, to the extent specifically provided for in Section 16.1, file a claim in court.
- 16.5 Process. Except for Disputes arising out of or related to Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, service marks, trade names, logos, trade secrets or patents, you and Shinyalab agree that any Dispute must be commenced or filed by you or Shinyalab within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Shinyalab will no longer have the right to assert such claim regarding the Dispute). You and Shinyalab agree that (a) any arbitration will occur in the State of New York, City of New York, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”) available at https://www.jamsadr.com/adr-rules-procedures/, which are hereby incorporated by reference, and (c) that the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
- 16.6 Authority of Arbitrator. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- 16.7 Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
- 16.8 Severability. If any term, clause or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 16 will remain valid and enforceable. Further, the waivers set forth in Section 16 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
- 16.9 Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by emailing email@example.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.
- Governing Law and Venue. These Terms, your access to and use of the Sites and your order, receipt, use of the Products and resolution of Disputes shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration pursuant to Section 16 or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, City of New York.
- Termination. Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
- Severability. If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
- Survival. The following sections will survive the expiration or termination of these Terms and the termination of your Shinyalab account: all defined terms and Sections 1, 5, 7-21.
- Entire Agreement. These Terms constitute the entire agreement between you and Shinyalab relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Shinyalab. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Shinyalab’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.