By accessing or using www.trynood.com, or any other website with an authorized link to this Agreement (collectively, the “Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), purchasing a product offered by Nood on the Website (“Product”) and/or subscription to Products, or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND NOOD, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE, PRODUCTS, OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TEXAS, SUBJECT TO THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of the Services may also be subject to any additional terms, conditions, and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
- REGISTRATION. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current, and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Nood immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Nood service at any given time. Nood reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Nood.
- ORDER PROCESS.
- Order Acceptance. Each part of any order that you submit to Nood constitutes an offer to purchase. If you do not receive a message from Nood confirming receipt of your order, please contact our Customer Service department at email@example.com before re-entering your order. Nood’s confirmation of receipt of your order does not constitute Nood's acceptance of your order. Nood is only deemed to have accepted your order once the Product(s) you ordered have been shipped.
- Order Issues. Although we strive to accept all valid orders, Nood reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
- Returns. We want you to be happy with the Product that you purchase from us. If you are not completely happy with the Product, please feel free to contact us at firstname.lastname@example.org with any questions or concerns and/or refer to our returns guide available at https://www.trynood.com/pages/returns (“Return Policy”) if you would like to return any Product you purchased through the Services.
- Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, Nood reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
- Restrictions on Resale. To protect the intellectual property rights of Nood, any resale of Products for personal and/or business profit is strictly prohibited. Nood reserves the right to decline any order that we deem to possess characteristics of reselling.
- Third-Party Provider. Nood uses a third-party service provider for fulfilling orders. By ordering any Product through the Services, you acknowledge that Nood has no responsibility or liability for any delays that may result from orders handled by such third-party service provider.
- Title and Risk of Loss. The risk of loss and title for Products purchased by you passes to you upon our delivery of the items to the carrier.
- By subscribing, you authorize us to charge your payment provider for your initial subscription period, and again at the beginning of any subsequent subscription renewal period for the fees agreed upon. Your charges may change if we change our pricing with notice to you. If you choose to cancel your subscription at any time, your subscription will no longer renew and we will not charge your payment provider for the subsequent subscription period. Upon renewal of your subscription, if we do not receive payment from your payment provider, (a) you agree to pay all amounts due on your account upon demand and/or (b) you agree that Nood 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).
- Refunds. Except as set forth in our Refund Policy, all fees are non-refundable.
- Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Nood communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
- By entering into this Agreement or using the Website or Services, you agree to receive communications from Nood and our affiliates and representatives, which may include, without limitation, emails, push notifications, and SMS, MMS and other text messages (“Communications”). Text messages and emails may be directed to any telephone number and email address that you supply to us in connection with your creation of an Account or use of the Website or Services or that you otherwise agree we may use to communicate with you. Communications may include but are not limited to: informational, transactional, operational and customer service communications concerning your Account, product orders, payments, appointments or use of the Website or Services. If you provide us with your email address, you agree we may use it to send you notices, offers, promotions and news about our company, products and services. IF YOU OPT-IN TO RECEIVE PROMOTIONAL TEXT MESSAGE COMMUNICATIONS, YOU MAY ALSO RECEIVE OFFERS, PROMOTIONS AND OTHER MARKETING-RELATED COMMUNICATIONS VIA TEXT MESSAGE. YOU AGREE THAT TEXT MESSAGES MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY. Message frequency will vary. You also agree that carrier Message and Data Rates may apply to any text messages you receive in accordance with your carrier rate plan. YOUR CONSENT TO RECEIVE AUTODIALED PROMOTIONAL TEXT MESSAGES IS NOT REQUIRED AS A CONDITION OF ANY PUCHASE. To opt out of promotional emails, follow the unsubscribe options in the promotional email itself. To opt out of text messages, you can reply with the word “STOP” to any text message you receive from us; however, you acknowledge that opting out of receiving text messages may impact your use of the Services.
- USER CONTENT.
- Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each user of the Services is entirely responsible for all content that such user makes available through the Services (“User Content”). Nood has no obligation to pre-screen any content. You use all User Content and interact with other users at your own risk. Without limiting the foregoing, Nood reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Nood shall have the right to remove any content that violates this Agreement or is otherwise objectionable to Nood.
- Ownership of Your Content. Nood does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a user post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Nood the license set forth below in Section 6.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
- License to Your Content. Subject to any applicable Account settings that you select, you grant Nood a right to use and display Your Content (in whole or in part) for its own business purposes, including without limitation, to operate and improve the Services, analyze users’ use of the Services, and develop new products and services. Note that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. In the event you provide any reviews or photos to Nood, either by electronic communication, through the Services, or with our third-party service providers, you hereby grant Nood a royalty-free, perpetual, sublicensable right and license to edit, copy, publish, distribute, and otherwise use such content on its Website, social media sites, marketing emails, and elsewhere in any marketing or advertising (including paid advertising) of Nood or its Products and services.
- Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Nood’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Nood. You may not send any unsolicited e-mail message, commercial or non-commercial, to any e-mail address you have gathered from the Services.
- Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Nood (“Feedback”) is at your own risk and that Nood has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nood a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services, the Products, and/or Nood’s business.
- OWNERSHIP OF AND LICENSE TO USE SERVICES.
- Use of the Services. Except with respect to User Content, Nood and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Nood grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Nood and its suppliers and service providers reserve all rights not granted in this Agreement.
- Trademarks. and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Nood may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
- RESTRICTIONS ON USE OF SERVICES. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, or logo on the Website (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Nood's name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Nood pursuant to this Agreement.
- INDEMNIFICATION. You agree to indemnify and hold Nood, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Nood Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Products or Services; (c) your violation of this Agreement; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. Nood reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nood in asserting any available defenses. This provision does not require you to indemnify any of the Nood Indemnitees for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
- AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NOOD INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES. THIS SECTION (DISCLAIMER OF WARRANTIES AND CONDITIONS) DOES NOT AFFECT IN ANY WAY OUR RETURN POLICY OR LIMITED WARRANTY. IF FOR ANY REASON YOU ARE NOT SATISFIED WITH A PURCHASE YOU MAKE ON THE SERVICE, PLEASE REFER TO THE TERMS OF OUR RETURN POLICY OR LIMITED WARRANTY, AS APPLICABLE.
- PRODUCTS. BEFORE USING OUR PRODUCTS, YOU AGREE TO CAREFULLY READ ALL INFORMATION PROVIDED BY NOOD IN CONNECTION WITH ANY PRODUCT, INCLUING LABELS, PACKAGING, AND OUR SAFETY INSTRUCTIONS FOUND HERE: HTTPS://WWW.TRYNOOD.COM/PAGES/SKIN-SAFETY-TESTHTTPS://WWW.TRYNOOD.COM/PAGES/SKIN-SAFETY-TEST AND PERFORM THE MOST RECENT VERSION OF THE SKIN SAFETY TEST FOUND IN THE SAFETY INSTRUCTIONS. YOU SHOULD CONSULT WITH A DOCTOR OR DERMATOLOGIST BEFORE USING OUR HAIR REMOVAL PRODUCT(S). RESULTS FROM USE OF OUR PRODUCTS MAY VARY. EACH PERSON IS DIFFERENT AND THE WAY ONE PERSON REACTS TO A PRODUCT MAY SIGNIFICANTLY DIFFER FROM THE WAY ANOTHER PERSON REACTS. IF YOU REQUIRE URGENT CARE, YOU SHOULD CONTACT YOUR LOCAL EMERGENCY SERVICES IMMEDIATELY.
DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. OUR CURRENT PRICES CAN BE FOUND ON THE SERVICES. WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF OUR PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR YOU SEE WILL DEPEND ON YOUR COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT YOUR COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THOSE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY TIME.
- NO LIABILITY FOR CONTENT. THE SERVICES CONTAIN OPINIONS AND VIEWS OF NOOD, ITS USERS, AND OTHER THIRD PARTIES, INCLUDING BUT NOT LIMITED TO AUTHORS OF REVIEWS, ARTICLES AND OTHER CONTENT MADE AVAILABLE THROUGH THE SERVICES. NOOD DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT POSTED BY NOOD OR ANY OF ITS USERS OR OTHER THIRD PARTIES THAT ARE MADE AVAILABLE THROUGH THE SERVICES.
WHILE WE ENDEAVOR TO KEEP THE MATERIALS ON THE WEBSITE CURRENT, HEALTHCARE INFORMATION CHANGES RAPIDLY AND THUS, THE MATERIALS ON THE WEBSITE SHOULD NOT BE RELIED UPON TO BE FULLY COMPREHENSIVE, ACCURATE OR ERROR FREE. WE DO NOT RECOMMEND, ENDORSE OR MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO THE ACCURACY, COMPLETENESS, TIMELINESS, QUALITY, EFFICACY OR NON-INFRINGEMENT OF ANY OF THE MATERIALS, PRODUCTS OR OTHER INFORMATION PROVIDED ON THE WEBSITES OR BY THE COMPANIES OR ORGANIZATIONS LINKED OR REFERRED TO ON THE WEBSITE, INCLUDING BUT NOT LIMITED TO THE LINKED WEBSITES.
- NOOD INDEMNITEES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF PRODUCTS AND/OR THE SERVICES WILL BE ACCURATE OR RELIABLE.
- NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT THE NOOD INDEMNITEES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NOOD INDEMNITEES LIABLE, FOR THE CONDUCT OF THIRD-PARTIES OR ANY PRODUCTS OR SERVICES THAT THEY MAY PROVIDE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTIES AND/OR ITS PRODUCTS AND/OR SERVICES RESTS ENTIRELY WITH YOU.
- NO LIABILITY FOR CONDUCT OF OTHER USERS OR THIRD-PARTIES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES, INCLUDING ANY AUTHORS OF ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND THAT NOOD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OR OTHER THIRD-PARTIES MADE AVAILABLE THROUGH THE SERVICES.
- PROFESSIONAL ADVICE DISCLAIMER.
- THE CONTENT AND INFORMATION MADE AVAILABLE THROUGH THE SERVICES ARE DESIGNED FOR EDUCATIONAL, INFORMATIONAL, AND ENTERTAINMENT PURPOSES ONLY AND ARE NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT OR INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION MADE AVAILABLE THROUGH THE SERVICES. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH AND FITNESS INFORMATION AND CONTENT THAT IS MADE AVAILABLE THROUGH THE SERVICES. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SERVICES WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
- ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE ABOUT YOUR MEDICAL CONDITION OR BEFORE EMBARKING ON A NEW TREATMENT PROGRAM. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICES. THE USE OF INFORMATION AND CONTENT PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.
- YOU ACKNOWLEDGE AND UNDERSTAND THAT THE USE OR MISUSE OF THE PRODUCTS OBTAINED THROUGH OUR SERVICES MAY RESULT IN UNDESIRABLE OR UNEXPECTED CONSEQUENCES. TO THE FULLEST EXTENT OF APPLICABLE LAW, THE NOOD INDEMNITEES DO NOT ACCEPT ANY LIABILITY FOR THE CONSEQUENCES ARISING FROM THE APPLICATION, USE, OR MISUSE OF ANY PRODUCTS MADE AVAILABLE THROUGH THE SERVICES, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON OR PROPERTY AS A MATTER OF NEGLIGENCE, OR OTHERWISE, INCLUDING YOUR FAILURE TO COMPLY WITH ANY WARNING LABELS ATTACHED TO SUCH PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NOOD INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE NOOD INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE NOOD INDEMNITEES ARE LIABLE TO YOU EXCEED THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO NOOD BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
- User Content and Settings. THE NOOD INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NOOD AND YOU.
- Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
- TERMINATION. At its sole discretion, Nood may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Nood reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Nood for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.
- INTERNATIONAL USERS. The Services are controlled and offered by Nood from its facilities in the United States of America. Nood makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Nood arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 16 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND NOOD HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 16 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND NOOD BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 16 CAREFULLY.
- Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Nood agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the “Dated” date at the top of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Nood may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Nood may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
- Informal Dispute Resolution. There may be instances when a Dispute arises between you and Nood. If that occurs, Nood is committed to working with you to reach a reasonable resolution. You and Nood agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Nood therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Nood that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at Nood Ventures LLC, 823 Congress Ave, Suite 300, Austin, TX 78701, United States. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
- Waiver of Class and Other Non-Individualized Relief. YOU AND NOOD AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 16.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Nood agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Travis County in the State of Texas. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Nood from participating in a class-wide settlement of claims.
- Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Nood agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Nood otherwise agree, or the Batch Arbitration process discussed in subsection 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Nood agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
- Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Texas and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 16.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection 16.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of the subsection 16.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such subsection 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection16.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection 16.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
- Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Nood need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
- Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Nood agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Nood by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Nood.
You and Nood agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to firstname.lastname@example.org within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Nood account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Invalidity, Expiration. Except as provided in the subsection 16.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Nood as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
- Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Nood makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days after the “Dated” date at the top of the Agreement by writing to Nood at email@example.com, your continued use of the Website, including the acceptance of Products and Services offered on or through the Website, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Website and Services, any communications you receive, any products or services sold or distributed through the Website or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Nood will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
- GENERAL PROVISIONS.
- Electronic Communications. The communications between you and Nood use electronic means, whether you visit the Website or send Nood e-mails, or whether Nood posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Nood in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Nood provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
- Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nood’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Nood shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Products or Services, please contact our customer service department using the contact information available on the Website. We will do our best to address your concerns.
- Notice. You agree Nood may provide you notices via email to the email address you provided to Nood. Where Nood requires that you provide an e-mail address, you are responsible for providing Nood with your most current e-mail address. In the event that the last e-mail address you provided to Nood is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Nood’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nood at the following address: Nood Ventures LLC, 823 Congress Ave, Suite 300, Austin, TX 78701, United States. Such notice shall be deemed given when received by Nood by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. Subject to Section 16.11, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.
- Consumer Complaints. In accordance with California Civil 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.
- Entire Agreement. This Agreement, including the Return Policy and Limited Warranty
which are incorporated herein by reference, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. If there is a conflict between the terms and conditions in our Return Policy or Limited Warranty and this Agreement, the terms and conditions of this Agreement will control.