Effective Date: March 21, 2018
Welcome to the Omigo Site administered by Omigo. (“Omigo”, “we”, “us” or “our”). PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THE AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND OMIGO AND STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE WEBSITE AND THE SERVICES OFFERED ON THE WEBSITE.
PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS 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 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 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 SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Any dispute or claim relating in any way to your use of the Site will be governed and interpreted by and under the laws of the state of California, consistent with the federal arbitration act, without giving effect to any 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.
By accessing or using the site located at https://www.myomigo.com/ (“Site”) in any way (including using the resources available or enabled via the Site, checking a box or using any other consent protocol presented on our Site to indicate your assent to this Agreement, and/or completing the registration process, you hereby represent that (1) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at www.help.myomigo.com/hc/en-us/articles/360007486091-Terms-of-Service, (2) you are of legal age in the jurisdiction in which you reside to form a binding contract with Omigo, and (3) you have the authority to enter into the Agreement. If you do not agree to be bound by the Agreement, you may not access or use the Site.
Subject to Section 14(i) of this Agreement, we reserve the right to change the terms and conditions of this Agreement at any time. Those changes will go into effect on the effective date shown in the revised Agreement. If we change this Agreement, we will give you notice by posting the revised Agreement on the Site and/or sending you an email at the email address you have provided or posting a notice that appears on the Site. We encourage you to keep your contact information up-to-date and to check this Agreement from time to time to see if it has been updated. YOUR CONTINUED USE OF THE SITE FOLLOWING POSTING OF CHANGES TO THIS AGREEMENT INDICATES YOUR ACCEPTANCE OF SUCH CHANGES.
1. USE OF SITE. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of shopping for items for personal use that are sold on the Site and not for purposes of resale or any other commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement may result in the immediate revocation of the license granted in this paragraph without notice to you. Except as permitted above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders at our discretion, including, without limitation, if we believe that customer conduct violates this Agreement, applicable law or is harmful to our interests. You agree not to upload, distribute, or publish any content or material through this Site that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, or other harmful code or properties. Submissions or opinions expressed on this Site are that of the individual expressing such submission or opinion and may not reflect our opinions. We may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the terms and conditions of this Agreement, and we have no obligation to investigate the authorization or source of any such access or use of the Site. You will be responsible for all access to and use of this Site by anyone using your password and login name, including all communications and obligations incurred, whether or not such access was actually approved by you. You are responsible for protecting the security and confidentiality of the password and identification assigned to you. Please notify us immediately of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security.
2. REVIEWS AND COMMENTS. Except as otherwise provided elsewhere in this Agreement or on the Site, you agree that we have the right to use anything that you submit or post to the Site and/or provide us, including without limitation, ideas, questions, reviews, comments, and suggestions (collectively, "Submissions"). You hereby grant us the royalty-free, worldwide, perpetual, irrevocable, sublicenseable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, translate, modify, reverse-engineer, disassemble, or create derivative works from such Submissions by any means and in any form. In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also hereby grant us the right to use the name that you submit with any review, comment, or other content in connection with such review, comment, or content. You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other content that you post on this Site and that use of your reviews, comments, or other content by us will not infringe upon or violate the rights of any third party. You agree not to use a false email address, pretend to be someone other than yourself, or mislead us or any third parties in regards to the origin of any Submissions or content. We have the right to remove or edit any Submissions for any reason.
3. INTELLECTUAL PROPERTY. The content of this Site, including all text, images, graphics, publications, audio clips, and software, and the assembly and arrangement of such items (collectively, "Content"), belongs exclusively to Omigo. or its affiliates and is protected by U.S. and international copyright laws. MYOMIGO.COM, OMIGO (and design), and other logos, slogans, trade names or words are registered trademarks, trademarks or service marks of Omigo, or its affiliates. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in metatags without prior explicit consent.
4. PAYMENT TERMS. Omigo accepts multiple types of payments for goods and services. You agree to pay all fees charged to your account based on charges and billing terms in effect as shown on the payment page on the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase and you authorize Omigo or the third-party payment processing service provider that we engage to pay us or charge your credit card for any such taxes and fees. All payments shall be made by credit card or other payment service in advance prior to shipping any products. If your credit card or other payment method cannot be charged for any reason, Omigo reserves the right to either suspend or terminate your purchase. All sales and payments will be in US Dollars.
5. TYPOGRAPHICAL ERRORS. We have the right to refuse or cancel orders or memberships if a product or information is listed on the Site with a typographical error that incorrectly identifies the true price or service conditions of a product or service. We have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged or other payment method. If your credit card has already been charged for the purchase and your order is canceled, we will immediately issue a credit to your credit card account or other payment method account in the amount of the charge and you agree that a credit is your sole remedy.
6. TERMINATION. We have the right to terminate the Agreement or revoke any and all of your rights granted under the Agreement with or without prior written notice. Upon termination of this Agreement, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of this Agreement will not affect the respective rights and obligations of the parties arising before the date of termination.
7. INTERNATIONAL USE. This Site can be accessed from countries other than the United States, but may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
8. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT OF THE LAW, OMIGO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARISING FROM OR RELATED TO USE OF THE SITE. WE DO NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE SITE. THE FOREGOING DISCLAIMER OF WARRANTY DOES NOT EXTEND TO THE PRODUCTS SOLD ON THE SITE, WHICH ARE SUBJECT TO SEPARATE TERMS OF SALE POLICIES. FOR MORE INFORMATION ABOUT THE PRODUCT TERMS OF SALE, SEE OUR FAQS RELATED TO OUR PRODUCTS AT https://myomigo.com/help. SOME JURISDICTIONS DO NOT ALLOW FOR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT OF THE LAW, YOU AGREE THAT OMIGO, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY PERSONAL INJURY OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES. THE CUMULATIVE LIABILITY OF OMIGO TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, OR YOUR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO OMIGO BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT EXTEND TO CLAIMS FOR DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE BY USERS WHO RESIDE IN THE STATE OF NEW JERSEY OR TO CLAIMS BY NEW JERSEY RESIDENTS FOR ANY DAMAGES CAUSED BY OMIGO’S FRAUD, DECEPTION, FALSE PROMISE, MISREPRESENTATION, OMISSION OF ANY MATERIAL FACT OR INTENTIONAL OR RECKLESS MISCONDUCT.
10. BASIS OF THE BARGAIN. You acknowledge and understand that the warranty disclaimers and limitations of liability set forth in sections 8 and 9 form an essential basis of the agreement between the parties hereto, that the parties have relied upon such disclaimers and limitations of liability, and that absent such disclaimers and limitations of liability, the terms and conditions of this Agreement would be substantially different.
11. INDEMNIFICATION. You agree to indemnify and hold harmless Omigo, its affiliates, and their respective officers, directors, employees, and agents (the “Indemnified Parties” ) from any and all liabilities, claims, expenses and damages, including reasonable attorneys' fees and costs, arising out of or in any way related to your breach of this Agreement, your use of the Site or in connection with your account or any other person's use or access to your account, with or without your permission. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, intentional or reckless misconduct, fraud, deception, false promise, misrepresentation or omission of any material fact in connection with the Site. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Site.
12. EXTERNAL LINKS. This Site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site.
13. EXCLUSIVE VENUE. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Omigo agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in either a small claims court of competent jurisdiction or the state or federal courts located in San Francisco, California.
14. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Omigo and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, Omigo’s consumer marketing or advertising practices, or to any aspect of your consumer relationship with Omigo, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Omigo 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH OMIGO, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST OMIGO ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim and the relief sought to our registered agent at PO Box 470085, San Francisco, CA 94147. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims 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/rulesstreamlined-arbitration/ all other claims 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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Omigo will pay them for you. In addition, Omigo will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Omigo will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Omigo. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND OMIGO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Omigo are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Consolidated Actions. YOU AND OMIGO AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 13.
f. 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 the following address: Omigo, Attn: Legal Department, PO Box 471513 San Francisco, CA, 94147, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Omigo username (if any), the email address you used to set up your Omigo 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.
g. Severability. Subject to Section 14(e), 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.
h. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Omigo.
i. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Omigo makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Omigo.
15. THIRD PARTY SERVICES. From time to time, Omigo may provide you with access to, use or enable certain third party software, products or services (collectively, “Third Party Services”). As a result, you also agree to be bound by any additional terms applicable to the Third Party Services.
a. Severability/Waiver. Subject to Section 14(e), if any these provisions will be deemed invalid, void, or for any reason unenforceable, that condition will not affect the validity and enforceability of any remaining provision. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived.
b. Our Address. Please direct any questions, comments or suggestions regarding this Site to: Omigo, PO Box 471513 San Francisco, CA, 94147, or call (800) 863-1854, or Contact Us by email.
c. Notice. Where Omigo requires that you provide an email address, you are responsible for providing Omigo with your most current email address. In the event that the last email address you provided to Omigo is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Omigo’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Omigo at the following address: PO Box 471513 San Francisco, CA, 94147. Such notice shall be deemed given when received by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
d. Procedure for Making Claims of Copyright Infringement. It is the Omigo policy to terminate privileges of any user who repeatedly infringes copyright upon prompt notification to Omigo by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Sites in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Site of the material that you claim is infringing; (d) your address, telephone number and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for our Copyright Agent for notice of claims of copyright infringement is as follows: Omigo, Attn: Copyright Agent, PO Box 471513 San Francisco, CA, 94147.
e. Electronic Communications. The communications between you and Omigo use electronic means, whether you visit the Site or send us emails, or whether we post notices on the Site or communicate with you via email. For contractual purposes, you (1) consent to receive communications from Omigo in an electronic form, and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Omigo provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your statutory rights.
f. Notice to California Customers. Under California Civil Code Section 1789.3, customers from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
g. Entire Agreement. This Agreement 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.