Terms and Conditions

Last Modified: June 3, 2022
These Terms and Conditions, including any policies, rules and other terms that are expressly incorporated herein by reference (collectively, the “Terms”), set forth a legally binding agreement between you (“you” or “your”) and SwitHeart Animal Alliance, Inc. with an address at c/o SwitHeart Animal Alliance, 4037 Phelan Road, Suite A271, Phelan, CA 92371 (“SAA,” “we,” “us,” or “our”). These Terms govern your use of our website located at www.switheart.org (the “Site”), and any content, information, products or services made available on or through the Site (collectively, the “Services”). Please read these Terms carefully before using the Site or any of the Services.

ARBITRATION NOTICE: TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SECTION 20 (DISPUTE RESOLUTION) OF THESE TERMS CONTAINS A MUTUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVES YOUR RIGHT TO A COURT HEARING AND JURY TRIAL. YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PLEASE READ SECTION 20 (DISPUTE RESOLUTION) CAREFULLY.

NOTICE FOR CANADIAN RESIDENTS: PLEASE READ SECTION 23 OF THESE TERMS FIRST FOR INFORMATION ABOUT HOW THESE TERMS APPLY TO YOU.
NOTICE FOR AUSTRALIA RESIDENTS: PLEASE READ SECTION 24 OF THESE TERMS FIRST FOR INFORMATION ABOUT HOW THESE TERMS APPLY TO YOU.
NOTICE FOR U.K. RESIDENTS: PLEASE READ SECTION 25 OF THESE TERMS FIRST FOR INFORMATION ABOUT HOW THESE TERMS APPLY TO YOU.

1. ACCEPTANCE OF TERMS

By accessing or using the Site or the Services, or by clicking to accept these Terms when this option is made available to you, you accept and agree to be bound by these Terms. In addition to these Terms, your access to and use of certain portions or aspects of the Site, or your ability to access and/or use certain Services, may require you to accept additional terms and conditions (collectively, “Additional Terms”). The Additional Terms are hereby incorporated and made a part of these Terms by this reference.

THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE SITE AND THE SERVICES. BY USING THE SITE AND/OR ANY OF THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SITE OR THE SERVICES.

2. AGE REQUIREMENTS

You must be at least the age of majority in your state or jurisdiction of residence, and fully able and competent to enter into and abide by the terms and conditions of these Terms, in order to access and use the Site and/or the Services. Individuals under the age of majority are not eligible to use the Site or the Services and may not submit any personal information to us. By accessing or using the Site and/or the Services, or by clicking to accept these Terms when this option is made available to you, you represent and warrant that you are at least the age of majority in your state or jurisdiction of residence, are legally entitled to enter into these Terms, are legally able to enter into any and all purchase agreements with us and our partners, vendors, agents, and service providers, and have the right, authority and capacity to enter into and abide by the terms and conditions of these Terms.

3. MODIFICATION TO THESE TERMS

We will e-mail you or post a notification on the Site in the event of any material changes to these Terms. Such changes, whether in the form of modifications, additions, or deletions, shall be effective when specified in the relevant notification or, if the change is immaterial, immediately upon appearing on the Site. Please check these Terms periodically for changes. Your continued use of the Site and/or the Services following our posting of any changes to these Terms means that you accept and agree to those changes.

4. PRIVACY POLICY

Our Privacy Policy governs the processing of all personal data collected from you in connection with your use of the Site and/or the Services. The Privacy Policy and its terms and provisions are hereby incorporated and made a part of these Terms by this reference. You must agree to the Privacy Policy in order to use the Site and/or the Services.

5. ACCESSIBILITY

We are committed to helping those with disabilities access the Site and/or Services. We strive to provide an excellent online experience for all our guests – including those with sight, hearing, and other disabilities. If you have difficulty using or accessing any element of the Site or the Services or if you have any feedback regarding accessibility of the Site or the Services, please feel free to contact us at info@switheart.org.

6. MOBILE SERVICES

Certain parts of the Services are available via a mobile device. To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Services, may be prohibited or restricted by your carrier, and not all Services may work with all carriers or devices.

7. RESTRICTIONS ON USE

You may use the Site, the Services and all associated content solely for your personal use and enjoyment. The Site, the Services, or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You shall not attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing the Site.

To access parts of the Site or the Services, you may be asked to provide certain, sometimes personal, information. It is a condition of your use of the Site or the Services that all the information you provide on the Site or the Services is correct, current, and complete.

You agree not to use any device, software, or routine to interfere with the proper functioning of the Site. In addition, when accessing or using the Site or the Services you may not:

  • Transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, or indecent information of any kind, including images and language;
  • Transmit or solicit any information, software, or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights; is protected by copyright, trademark, or other proprietary rights; or is a derivative work with respect thereto, without first obtaining permission from the owner or right holder;
  • Transmit any information, software, or other material that contains a virus, trojan horse, time bomb, worm or other rogue programming or other harmful component;
  • Use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute any information or content available on the Site; or
  • Use any technique to reproduce content from the Site or Services, or to bypass any part of the Site or Services, without our express written permission, including, without limitation, using techniques such as framing, or “picture-in-picture” to display content from the Site or Services, or creating deep links or in-line links to content on the Site or Services.

Additionally, you are prohibited from violating or attempting to violate any security features of the Site. Any violation of system or network security may subject you to civil and/or criminal liability.

8. USER COVENANTS

By accessing or using the Site and/or the Services, you agree to, acknowledge, and represent as follows:

  • You will comply with all applicable federal, state, provincial or local laws in using the Site and/or the Services, and you will not perform or fail to perform any act that you know or reasonably should know would place us or our affiliates in violation of any applicable law.
  • You have the authority and capacity, under the laws of the state or jurisdiction in which you reside, to make the representations and warranties and be bound by the covenants provided herein.

9. COPYRIGHTS, TRADEMARKS, AND OTHER PROPRIETARY RIGHTS

When accessing and using the Site and/or the Services, you agree to obey all applicable laws and to respect the intellectual property rights of others.

As between you and us, all content on the Site and the Services, including text, hidden text within our source code, trademarks, software, photos, video, images, graphics, music, audio-visual content, podcasts, recordings, sound, or any other digital media, is owned by us and/or our licensors and is subject to protection by U.S. and international patent, copyright, trademark, or other proprietary rights. In addition, the entire content of the Site is copyrighted as a collective work under the United States copyright laws, and we and/or our affiliates own the copyright in the selection, coordination, arrangement, and enhancement of such content. Any feedback you provide to us relating to the Site and/or the Services, shall be deemed to be non-confidential. We shall be free to use such information on an unrestricted basis.

All trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) appearing on the Site and/or the Services are the property of their respective owners, including, in some instances, us and/or our partner companies. Nothing contained on the Site, the Services or these Terms serves to grant you, by implication or otherwise, a license or right to use any of the Trademarks or copyrights owned by us or by any third party.

Except as expressly provided herein, you may not use, modify, create derivative works of, copy, redistribute, reproduce, publish, transmit, display, commercialize, or in any other way exploit any content or material from the Site or the Services without express written permission from us and, if applicable, the respective copyright owner. You acknowledge and agree that you do not acquire any ownership rights by accessing or using the Site and/or the Services.

10. UNSOLICITED MATERIAL SUBMISSION

You agree not to send via the Site, to (insert email address) or to SwitHeart Animal Alliance, Inc. any unsolicited materials, pitches, or ideas for any of SwitHeart Animal Alliance, Inc.’s current, future or proposed productions or shows (collectively, “Unsolicited Materials”). You understand that neither we nor Loretta Swit will review, examine or consider your Unsolicited Materials and that as a matter of SAA’s consistent, established business practice, we will delete all Unsolicited Materials that are received. You recognize that SAA or Loretta Swit may have access to and/or may create or have created materials and ideas, which may be similar or identical to the Unsolicited Materials in theme, idea, plot, format or other respects. You agree that you will not be entitled to any compensation because of the use of any such similar or identical material which may have been independently created by SAA or Loretta Swit or may have come to SAA or Loretta Swit from any other independent source. To the maximum extent permitted by law, you hereby agree to indemnify and hold the SAA and Loretta Swit harmless from any losses, including legal fees and expenses, that directly or indirectly result from your Unsolicited Materials. To the maximum extent permitted by law, you hereby expressly waive any and all claims, now known or hereafter known, against the SAA and Loretta Swit arising out of or attributable to your Unsolicited Materials.

11. THIRD-PARTY SITES

We may provide links and pointers to websites, goods, and/or services maintained, owned, or controlled by others (“Third-Party Sites”) that are not affiliated with us and may be located in different countries and that may subject to different regulatory and other legal requirements. We have not reviewed all of the Third-Party Sites linked to the Site or the Services and are not responsible for the content or services offered on such Third-Party Sites, including, but not limited to, any advertising, order processing and fulfillment, or payment terms related to such Third-Party Sites. Access to Third-Party Sites through the Site or the Services does not constitute an endorsement by us or any of our subsidiaries or affiliates of any such Third-Party Sites, or the content or services offered by them. We have no responsibility or liability for these Third-Party Sites’ independent policies or actions and are not responsible for the privacy practices of such Third-Party Sites or retailers. Complaints, claims, concerns, or questions regarding Third-Party Sites should be directed to the applicable third party.

If we provide links to social media platforms, such as Facebook or Twitter, and you choose to visit any such social media platforms through our links, please note that the personal information you post, transmit, or otherwise make available on or through such social media platforms may be viewed by the general public. We do not control any content or information made available on such social media platforms and we are not responsible for any third-party use of any such content or information, including, without limitation, personally identifiable information, that you have posted, transmitted, or otherwise made available on such social media platforms.

12. UPDATES

We will not be liable if, for any reason, all or part of the Site or the Services is ever unavailable. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site or the Services, or any part thereof. We will try to give you reasonable notice of major changes. We undertake no obligation to update, amend, or clarify information on the Site or the Services, except as required by applicable law. No specified update or refresh date applied on the Site should be taken to indicate that all information on the Site or the Services has been modified or updated. Please remember when reviewing information on the Site or the Services that, to the extent permissible by law, such information may not represent the complete information available on a subject. In addition, subsequent events or changes in circumstances may cause existing information on the Site or the Services to become inaccurate or incomplete.

On occasion, information on the Site or the Services may contain errors. We reserve the right to, at any time without prior notice, correct any errors, inaccuracies, or omissions, and to change or update information.

13. PURCHASES

Products, Prices and Promotions
Products offered on the Site are offered subject to availability. All products should be used strictly in accordance with any applicable instructions, precautions and guidelines. All prices, discounts, and promotions posted on the Site are subject to change without notice. We may, from time to time, offer promotions or other discounts on product purchases. We reserve the right to suspend any such promotions, update product information and change prices at any time without notice. Furthermore, we reserve the right to make minor changes, limit, refuse, or cancel any order you place with us at our sole discretion. If we change or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address and/or phone number provided at the time the order was made, and in the event of a change, you may then contact us to cancel the order and receive a refund for any products paid for but not received.

We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time, and to cancel any orders arising from such occurrences.

Coupons/Discount Codes
Use is limited to one (1) time per coupon and/or discount code per customer and subject to the terms and conditions of the applicable coupon and/or discount code. Discounts will be applied at checkout. Online offers have no cash value and are not redeemable for cash. Coupons and discount codes are not valid on previous purchases or when combined with other promotional offers.

Payment Terms
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept payment with credit card or per any other payment method specified as part of the checkout process. By entering into any transaction on the Site, you represent, warrant and covenant that all information you provide is true, correct, and complete (including, without limitation, your credit card information and billing address); that any credit card transactions submitted by you are authorized; that charges incurred by you will be honored by your credit card company; that you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order; and that you are the legal holder of any credit card or payment account used to enter into any transaction on the Site.

If, in our sole discretion, we determine that: (i) your means of payment is not valid, (ii) a transaction is not authorized, (iii) your means of payment cannot be processed or verified at the time of any charge, (iv) a charge is disputed for any reason other than failure by us to deliver the item(s) purchased by you, (v) you have abused or misused promotions or promotion codes, as applicable, or (vi) you have otherwise used the Site to enter into an improper transaction, we reserve the right to immediately terminate any pending transactions, suspend your access to the Site, and terminate all of our obligations hereunder.

Payment Processing
By agreeing to these Terms, you consent that the payment processing services for products purchased on the Site are provided by WooCommerce Payments.

Shipments; Delivery
We will arrange for shipment of the products to you. Risk of loss passes to you upon delivery of the products to the carrier. You will pay all shipping and handling charges specified during the ordering process. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

Returns
Returns are limited to U.S. customers only. Notwithstanding the foregoing, Australian customers shall be eligible for returns in the event of defective products (but for the avoidance of doubt, Australian customers shall not be eligible for change of mind returns).

With respect to the products offered via the Site, our policy is to accept returns of products within thirty (30) days following placement of order and refund your purchase price, less the original shipping and handling costs and less the shipping and handling costs for such return, so long as such return is made with valid proof of purchase and original packaging and packing slip and provided such products are returned in undamaged and unused condition. Any refunds will be processed only after the returned products are received and reviewed. For the avoidance of doubt, there shall be no exchanges. To return products, you must first email us at (insert email address)including your order number in the subject line in order to initiate the return and to receive instructions for such return. You are responsible for all shipping and handling charges on returned items unless otherwise specified. If you feel that you did not receive your purchased product and you have been charged, please contact us at (insert email address)

Resale of Products
The Site sells products to retail consumers only. You shall not use the Site to purchase products for re-sale or export. We reserve the right to immediately bar access to the Site and terminate the account of any user who violates this provision.

Questions
If you have any questions or concerns with your order, please e-mail us at SWITHEART ANIMAL ALLIANCE

14. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OFFERED VIA THE SITE) IS AT YOUR SOLE RISK. THE SITE AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OFFERED VIA THE SITE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SITE OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OFFERED VIA THE SITE) WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT THE QUALITY OF ANY INFORMATION OR MATERIALS OBTAINED BY YOU THROUGH THE SITE OR THE SERVICES WILL MEET YOUR EXPECTATIONS, AND THAT ANY ERRORS IN THE SITE OR THE SERVICES WILL BE CORRECTED. UNLESS OTHER RIGHTS ARE PROVIDED BY LAW WHICH CANNOT BE EXCLUDED OR LIMITED, YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SITE OR THE SERVICES IS TO STOP USING THE SITE OR THE SERVICES, AS APPLICABLE. THE FOREGOING LIMITATION OF RELIEF IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND US UNDER THESE TERMS. PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE LENGTH OR SCOPE OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THIS SECTION 14 IS INTENDED TO EXCLUDE OR LIMIT ANY RIGHTS, WARRANTIES OR GUARANTEES IMPLIED BY APPLICABLE LAW AND WHICH CANNOT BE EXCLUDED OR MODIFIED AS A MATTER OF LAW.

15. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE AND/OR OUR SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, MEMBERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, AND MANAGERS BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE), RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OFFERED VIA THE SITE); (II) ANY ACT OR OMISSION BY YOU THAT IS BASED (IN WHOLE OR IN PART) ON ANY INFORMATION, STATEMENT OR CONTENT THAT IS PROVIDED OR OTHERWISE MADE AVAILABLE TO YOU BY OR THROUGH THE SITE OR THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR OTHER DATA; OR (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE. IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF SWITHEART ANIMAL ALLIEANCE, INC. AND OUR SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, MEMBERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, AND MANAGERS TO YOU, FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED, IN THE AGGREGATE, ONE HUNDRED U.S. DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES AND/OR OR LIABILITY. ACCORDINGLY, IN CERTAIN JURISDICTIONS, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS OF WARRANTIES OR LIABILITY MAY NOT APPLY TO YOU; ALL OTHER PROVISIONS OF THESE TERMS REMAIN IN FULL FORCE AND EFFECT.

16. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless SwitHeart Animal Alliance, Inc. and Loretta Swit, our affiliates, our subsidiaries, and each of our and their respective shareholders, members, managers, directors, officers, employees, personnel, agents, successors and assigns (collectively, the “SwitHeart Parties”) from and against any and all claims, allegations, demands, actions, causes of action, lawsuits, investigations and proceedings (including any and all liability, damages, costs, expenses (including reasonable attorneys’ fees), settlements, fines, penalties and losses of any kind or nature whatsoever resulting from any of the foregoing) (collectively, “Claims and Losses”) arising out of or in connection with: (i) your violation or breach of these Terms; (ii) your use of the Site and/or the Services (including, without limitation, any products offered via the Site); (iii) your dispute with another user; (iv) your violation of any rights of any third party; or (v) your violation of applicable law; in each case except to extent that such Claims and Losses have been directly caused by a SwitHeart Party. This indemnification obligation will continue after you stop using the Site and/or the Services. We reserve the right to assume the exclusive defense and control of any claim and matter otherwise subject to indemnification by you at your expense, and you shall not in any event settle or otherwise dispose of any matter without our prior written consent.

17. FORCE MAJEURE

We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, inability to obtain or delay in obtaining adequate or suitable supplies, breakdown of materials or telecommunications, or power outage. This Section does not exclude or effect in any way any statutory right that is afforded to you to cancel an order when a Service is delayed or not provided.

18. NOTICES

We may send you responses or notices by e-mail, posting to the Site, or written communication sent by postal service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

19. GOVERNING LAW

These Terms and your use of the Site and/or the Services shall be governed by and construed for both substantive and procedural purposes in accordance with the laws of the State of California, U.S.A., without giving effect to any principles of any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the laws of any jurisdiction other than those of the State of California to apply (however, you are always entitled to any mandatory consumer protections applicable in your country of residence).

20. DISPUTE RESOLUTION

Timing of Claims
Any cause of action or claim you may have with respect to the Site and/or the Services must be commenced within one (1) year after the claim or cause of action arises.
Arbitration and Venue
Any dispute relating in any way to your use of the Site and/or the Services shall be submitted to confidential arbitration in Los Angeles, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court, and you consent to jurisdiction and venue in such courts. Arbitration under these Terms shall be conducted under the rules then prevailing of the American Arbitration Association in accordance with its Commercial Arbitration Rules and before a single arbitrator.

Ultimately, the selected arbitrator must have expertise in the subject matter of the dispute. The expenses of the arbitration charged by the arbitrator shall be borne by the non-prevailing party or otherwise as appropriately allocated between the parties to the arbitration by the arbitrator in his or her discretion. However, in every other regard, each party shall pay for and bear its own costs and legal fees, costs, and expenses. The arbitration shall be completed within one hundred twenty (120) days of either giving notice or filing a demand to arbitrate with the American Arbitration Association (whichever shall first occur).

Final Arbitration
The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. The testimony, evidence, ruling, and all documentation regarding any arbitration shall be considered confidential information. Neither party may use, disclose, or divulge any such information unless otherwise required by law.

Class Action Waiver
To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. You agree to an arbitration on an individual basis. IN ANY DISPUTE, NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one (1) person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

21. MISCELLANEOUS

The division of these Terms into sections and the headings of the various sections in these Terms are for convenience of reference only and shall not affect the construction or interpretation of these Terms. You acknowledge and agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to these Terms. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms. We may assign our rights and duties under these Terms to any party at any time without notice to you and without your express consent. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. There shall be no third-party beneficiaries to these Terms. Any provision of these Terms that contemplates performance or observance subsequent to any expiration or termination of these Terms, or which is otherwise necessary to interpret the respective rights and obligations of the parties hereunder, shall survive any expiration or termination of these Terms and continue in full force and effect. If any provision of these Terms shall be held unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms, together with our Privacy Policy, and all other documents incorporated herein by reference, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede any agreements previously existing between the parties with respect to such subject matter.

22. NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California users of the Site 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.

23. NOTICE FOR CANADIAN RESIDENTS

If you are a Canadian resident and you are using this Site or the Services while in Canada, these Terms apply to you with the following additions and/or qualifications:

  • Disclaimer of Warranties: Nothing in Section 14 (Disclaimer of Warranties) modifies or disclaims the legal warranty under Quebec law, if it applies to you.
  • Limitation of Liability: Nothing in Section 15 (Limitation of Liability) affects any mandatory warranty provided under provincial or territorial consumer protection legislation.
  • Indemnification: If you reside in Quebec, Section 16 (Indemnification) does not apply to you.
  • Governing Law: If you reside in Quebec, Section 19 (Governing Law) does not apply to your purchase of products through this Site. Instead, your purchase of products shall be governed by and construed for both substantive and procedural purposes in accordance with the laws of the Province of Quebec.
  • Dispute Resolution: – Quebec. If you reside in Quebec, Section 20 (Dispute Resolution) does not apply to you. You must commence your proceeding before the applicable court in Quebec within three (3) years after the claim or cause of action arose.
  • Dispute Resolution: Other Provinces/Territories. If you reside in any province or territory in Canada other than Quebec, consumer protection laws may not permit mandatory arbitration of certain claims. If these laws apply to a dispute relating in any way to your use of the Site and/or the Services, then you may bring your claim in your province or territory of residence or following the arbitration process in Section 20 (Dispute Resolution). You must commence your proceeding before the applicable court in your province or territory of residence within two (2) years after the claim or cause of action arose. Unless such a restriction is prohibited by applicable law, you agree that you will not bring or pursue any claim against us as a class or representative action.

24. NOTICE FOR AUSTRALIAN RESIDENTS

If you are an Australian resident and you are using this Site or the Services while in Australia, these Terms apply to you with the following additions and/or qualifications:

  • Dispute Resolution: Timing of Claims. Nothing in this subsection applies to you.
  • Dispute Resolution: Arbitration and Venue. You instead agree that any dispute relating in any way to your use of the Site and/or Services shall be dealt with by way of confidential arbitration in an appropriate forum, conducted in accordance with the current arbitration rules set by the Australian Centre for International Commercial Arbitration (except that we may seek injunctive or appropriate relief in an Australian state or federal court).

25. NOTICE FOR U.K. RESIDENTS

If you are a U.K. resident and you are using this Site or the Services while in the U.K., these Terms apply to you with the following additions and/or qualifications:

  • Purchases—Shipment; Delivery: Risk of loss passes to you upon delivery of the products to you and title to the products will pass once we have received payment in full. We will strive to deliver your products to you within thirty (30) days after the day on which we accept your order and we will contact you or provide you with an estimated delivery date.
  • Purchases—Returns: In the event of faulty or misdescribed products, we will cover or refund you the shipping and handling charges for the returned items (to the extent of the lowest delivery rate offered or provided by us). Our goodwill returns policy does not affect your legal rights in relation to faulty or misdescribed products.
  • Disclaimer of Warranties: Notwithstanding anything to the contrary in Section 14 (Disclaimer of Warranties), we warrant that the products we provide you will be of satisfactory quality, fit for purpose, meet any description we give to you, and match any sample that we may have provided to you.
  • Limitation of Liability: Notwithstanding anything to the contrary in Section 15 (Limitation of Liability): If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Services. We only supply the products for domestic and private use. If you use the products for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
  • Dispute Resolution: U.K. consumer protection laws may not permit mandatory arbitration of certain claims. If these laws apply to a dispute relating in any way to your use of the Site and/or the Services, then you may bring your claim in your territory of residence or following the arbitration process in Section 20 (Dispute Resolution). Unless such a restriction is prohibited by applicable law, you agree that you will not bring or pursue any claim against us as a class or representative action.

26. QUESTIONS

If you have any questions, complaints or comments regarding these Terms, our Privacy Policy, the Site, or the Services, please feel free to contact us by e-mail at info@switheart.org.

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