Terms of Use

BalmLabs Inc. – Terms of Use

Effective Date: January 23, 2020

These Terms of Use (“Terms of Use“) govern your use of the services or features on the website www.thisisbalm.com and www.balmlabs.com(the “Site”), which is owned and controlled by BalmLabs Inc.(“BalmLabs“, “our”, “we”). These Terms of Use govern your use of our Site and your conduct, whether you have accessed our Site from a computer, mobile phone, tablet or other device.

BY USING OUR SITE, YOU SIGNIFY YOUR AGREEMENT TO THESE TERMS OF USE. IF YOU DO NOT AGREE WITH ANY OF THESE, YOU MAY NOT USE OUR SITE.

1.1 Site Rules and Supplemental Terms. Your access to and use of the Site is governed by the terms and conditions of these Terms of Use, our Privacy Policy, currently located at https://thisisbalm.com/privacy-policy/ (as described in more detail in below), any and all other policies and rules referenced herein, posted on the Site, or otherwise communicated to users (the “Site Rules”).

Certain of the features, functionality, tools, content and promotions available on or through the Site may be subject to additional or supplemental terms and conditions (“Supplemental Terms”).  If you choose to access or use those features, functionality, tools or content or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms of Use.

If there is a conflict between these Terms of Use and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content and promotions.

PLEASE READ THESE TERMS OF USE, OUR PRIVACY POLICY, SITE RULES AND ALL APPLICABLE SUPPLEMENTAL TERMS (COLLECTIVELY, THE “TERMS”) CAREFULLY, AS THEY CONTAIN TERMS AND CONDITIONS THAT IMPACT YOUR RIGHTS, OBLIGATIONS AND REMEDIES IN CONNECTION WITH YOUR USE OF THE SITE. FOR EXAMPLE, THE TERMS INCLUDE LIMITATIONS OF OUR LIABILITY TO YOU AND A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

YOUR ACCESS TO AND USE OF THE SITE IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.

1.2 Amendment of Terms. BalmLabs reserves the right to change or modify any of the terms and conditions contained in the Terms at any time, without notice, and in its sole discretion. If at any point we choose to change the Terms, we will post a new version on the Site and update the date set forth above accordingly. Any changes or modifications to the Terms will be effective upon posting of the revisions. We may also, at our option, choose to notify you by e-mail or another means.  Your continued  use of our Site following the posting of any changes or amendments, or receipt of notification, will constitute acceptance of said changes and amendments.  If you do not agree with any changes or amendments, you must stop using the Site.  For this reason, we encourage you to frequently check back and review the Terms.

2.1 License to Use. Subject to your compliance with the Terms, BalmLabs grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Site for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Site as provided by BalmLabs, in the manner permitted by the Terms. 

2.2 Mobile services. Please be aware that if you access the Site via your mobile phone or provide a mobile phone number to us in order to be contacted by voice or text message, your carrier’s normal rates and fees, such as text messaging fees or data charges, will still apply. You can find out more about how we use information regarding your mobile device, including your phone number, in our Privacy Policy.

2.3 Modifications and Updates to the Site. BalmLabs reserves the right, in its sole discretion, to modify or discontinue offering the Site, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.  We also retain the right to impose limits on your use and storage of Your Content (as defined below) at our sole discretion at any time without prior notice to you. You agree that BalmLabs has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.

2.4 International Users. The Site is controlled and operated within the United States and is not intended for use outside of the United States.  You are hereby prohibited from accessing or using the Site from any territory where the Site or any of the features, functionality, tools, content thereof, is illegal.  If you choose to access the Site from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.

2.5 Regulations In The Cannabis Industry. While the U.S. federal government and many states have legalized hemp and products derived from hemp, the FDA is still clarifying its guidance on products containing CBD derived from hemp. We make no representation as to whether the products sold through the Site comply with the FDA’s interpretation of how the Food, Drug, and Cosmetic Act applies to products containing CBD derived from hemp. You are responsible for complying with the applicable laws regarding cannabis in your jurisdiction. Cannabis products are intended for personal use only in the jurisdiction in which they are sold. Products sold by BalmLabs are not intended for resale or interstate transport.

2.6 No Professional Advice. The Site and the materials thereon have been prepared by BalmLabs for informational purposes only, and BalmLabs makes no claims with respect to the use or consumption of any BalmLabs or third party products. Do not act upon this information without seeking guidance from a medical professional, or other applicable, qualified professional. We encourage you to consult with your physician or dermatologist prior to using any BalmLabs’ products if you are taking medication, have a medical condition, are pregnant, breastfeeding or are planning to become pregnant.

The information on the Site is not intended to provide medical or legal advice, or to assess, diagnosis, or specifically treat any individual’s medical condition(s) or concerns. Information on the Site is also not intended to provide legal advice in relation to the cannabis or hemp/CBD industry or any other industry. Nothing herein shall be construed as legal advice and we make no representations or warranties as to the legal activity in the jurisdiction in which you are located.  We do not make any representations or warranties as to the legality of purchasing products in any state.  Certain products and product ingredients may be restricted or prohibited under state law. These statements have not been evaluated by the Food and Drug Administration. None of the products sold by BalmLabs are intended to diagnose, treat, cure, or prevent any disease.

All BalmLabs products should be used strictly in accordance with their instructions, precautions and guidelines, which are detailed on the Site’s product pages, in addition to each individual product’s packaging. You should always check the ingredients for products to avoid potential allergic reactions.

3.1 Account Registration. When any of our Site functions, including setting up an account or posting a review, require you to register with us, or otherwise provide user information, you must provide us with complete and accurate account information. You grant to us and to all other persons and entities involved in the operation of the Site the right to use, store, monitor, retrieve and transmit your account information in connection with the operation of the Site and as otherwise provided herein. Our Privacy Policy details how we collect and use your information, which is incorporated into these terms by reference for all purposes.

If you register an account with  BalmLabs, you will be asked to provide a password. As you will be responsible for all activities that happen under your password, keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you believe that your account is no longer secure (for example, in the event of a theft or unauthorized disclosure or use of your account id or password), you must immediately notify  BalmLabs. You are solely liable for losses incurred by you,  BalmLabs or others due to any unauthorized use of your account.

3.2 Account Termination. You may cancel your account with us at any time by following the instructions on the Site. If you choose to terminate your account, you can reactivate it within 30 days of termination through the user account section of the Site. We reserve the right to immediately terminate your account in our sole discretion, and without prior notice to you if, for example, you violate the terms. Without limiting the foregoing, if you are a repeat copyright infringer, we will, in appropriate circumstances, permanently terminate your account and remove all of your user content from the Site.

4.1 Prices. All prices are in U.S. dollars. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. The shipment of products to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your Subscription (as addressed below). Promotional offers cannot be combined. Only one discount at a time can be applied to a single order. Where multiple promotions are available to the customer, we will honour the discount of greatest value to the customer.   

4.2 Payment/ Credit Cards. YOU ARE RESPONSIBLE FOR PROVIDING BALMLABS WITH VALID CREDIT CARD OR PAYMENT ACCOUNT DETAILS AND FOR THE TIMELY PAYMENT OF ALL FEES.  Please note that the payment information, including name and contact information, that you submit when you register may be used and shared with our payment processing services provider and otherwise used in accordance with our Privacy Policy.

4.3 Refunds. Unless stated otherwise in BalmLabs’ Returns & Exchange Policy, all fees and charges are non-refundable.

5.1 Orders. All of the products sold through the Site are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, to discontinue offering certain products and to substitute products without prior notice. As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity or where the order violates BalmLabs’ published policies. In a case where we suspect fraud or unauthorized or illegal activity, we may reject your order or our customer service department may contact you using the phone number you provided or your email address to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity. The products available on the Site, including any samples BalmLabs may provide to you, are for your personal use only. You may not sell or resell any products you purchase or otherwise receive from BalmLabs. BalmLabs reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms of Use, as determined by BalmLabs in its sole discretion.

5.2 Shipping. The products displayed on the Site can be ordered and delivered only within the U.S. You agree to pay any shipping and handling charges shown at the time you make a purchase. When you purchase a product from our Site, any shipping times shown are estimates only. Actual delivery dates may vary. All products should be shipped to you personally and are not for resale or export.

5.3 Deliveries. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself. If you are not at home when your delivery arrives and if no signature is required, the courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. You should plan for immediate and proper storage of your products upon delivery.

6.1 Responsibility for Your Content. You are solely responsible for all content that you upload, post, email or otherwise transmit via or to our Site.  This may include submitting product reviews and photos, uploading public profile information, text, applications, graphics, video, sound, messages, forum postings, comments, questions, answers or other materials (collectively, “Your Content“). For the avoidance of doubt, Your Content does not include your initial registration information, such as password, mailing addresses, etc. All Your Content that you submit to BalmLabs or upload to Site is not confidential and may be used at BalmLabs’ sole discretion. While BalmLabs may or may not pre-screen Your Content, we do have the right at our sole discretion to pre-screen, change, condense or delete any content on the Site. Specifically, BalmLabs and its designees have the right to remove any content that is believed, in its sole discretion, to violate the Terms. We do not guarantee that you will have any recourse through BalmLabs or our Site to edit or delete Your Content after submission. We reserve the right to incorporate Your Content into any account you may have, now or in the future, as a registered user of the Site. We also reserve the right to remove or to refuse to post any submission that we believe is in violation of any relevant terms or guidelines. You acknowledge that you, not BalmLabs, are responsible for Your Content. None of Your Content shall be subject to any obligation of confidence on the part of BalmLabs, its agents, subsidiaries, affiliates, partners or third-party service providers and their respective directors, officers and employees.

6.2 Your Content submissions. By submitting and/or uploading Your Content to BalmLabs through the Site, you represent and warrant that:

• you understand you are contributing to a public forum and that Your Content and any personal information that may be included therein may be available to all other users of the Site and potentially third party websites;
• you are the sole author and owner of the intellectual property and other rights thereto (or have the necessary licenses, rights, consents and permissions to use and provide a non-exclusive license to BalmLabs to use all intellectual property and other rights thereto to enable inclusion and use of Your Content in the manner contemplated by the Site and these Terms of Use);
• you understand that Your Content may be utilized and distributed by BalmLabs in its marketing materials, including but not limited to, the Site, BalmLabs emails, e-newsletters and event materials, and our social channels;
• you shall comply with the Federal Trade Commission’s guides on the use of endorsements and testimonials in advertising. Without limiting the generality of the foregoing, this means that if you received compensation in any form (including free product) or any other incentive (such as an entry in a sweepstakes or contest or a coupon) in exchange for posting Your Content on BalmLabs’ Site (including but not limited to product reviews, Q&A, photographs, etc.), then this must be disclosed in such post. All disclosures must be made clearly and conspicuously;
• all “moral rights” that you may have in such content have been voluntarily waived by you and you do not require that any personally identifying information be used in connection with Your Content, or any derivative works of or upgrades or updates thereto;
• all information in Your Content is accurate; and
• use of Your Content by BalmLabs does not violate these Terms of Use and will not cause injury to any person or entity.

You also represent and warrant that Your Content:

• is not false, inaccurate or misleading;
• does not harm minors;
• does not infringe any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any person or entity;
• does not violate any obligations you may have with respect to such content under any law or under contractual or fiduciary relationships (such as, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• does not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
• is not, or would not reasonably be considered to be, unlawful, harmful, defamatory, trolling, bullying, libelous, vulgar, obscene, invasive of another’s privacy, hateful, racially or religiously biased or offensive, abusive, threatening or harassing to any individual, partnership or corporation;
• is relevant to the product being rated and reviewed, a topic being discussed in an open forum or about which a question or answer is submitted;
• does not include any information that references other websites, addresses, email addresses, contact information or phone numbers;
• complies in all respects with the Terms;
• is not a form of phishing and does not contain unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
• does not contain any computer viruses, worms or other potentially damaging computer programs or files; and
• does not impersonate any person or entity, including, without limitation, any BalmLabs official or employee, forum leader, guide or host, or falsely states or otherwise misrepresents your affiliation with a person or entity. You may not use the Site to collect or store personal information about other users.

For any content that you submit, you grant BalmLabs a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable and transferable right and license to use, reproduce, communicate, distribute, share, copy, modify, delete in its entirety, edit, adapt, publish, translate, publicly display, publicly perform, use, create derivative works from and/or sell and/or distribute Your Content and/or incorporate Your Content into any form, medium or technology whether now or hereafter known throughout the world without compensation to you. This license will survive the termination of these Terms of Use and your use of the Site.

6.3 Restrictions.

You agree not to circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use of any content or enforce limitations on use of the Site or the content therein. You may not interfere with or disrupt the Site, or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site, including by using any device, software or routine to bypass robot exclusion headers.

7.1 Definitions.

• “Site Content” refers to any and all videos, text, photos, information and other content included, provided or made available on or through the Site, including all User Content except Your Content, and the “look and feel” of the Site, and all data files, graphics, illustrations, logos, packaging, images, sounds, music, video and audio files on the Site.
• “User Content” refers to videos, text, photos, information and other content captured, recorded, streamed, stored, shared or otherwise made available or caused to be made available by users on or through the Site.

7.2 The Site. The Site and its Site Content, features and functionality, including, without limitation, information, software, text, graphics, logos, campaigns, articles, button icons, images, audio clips, video clips, data compilations and the design, selection and arrangement thereof, are the exclusive property of BalmLabs or its licensors, and are protected by United States and other national and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.

Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with BalmLabs (the “BalmLabs Marks”) are the property of BalmLabs, and that you are not permitted to use the BalmLabs Marks without our prior written consent.

You may access the Site Content only as permitted under the Terms and you agree to not engage in the use, copying or distribution of any of the Site Content other than as expressly provided herein.

You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools of the Site, or any Site Content, in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of BalmLabs or the intellectual property owner, as applicable.

No right, title or interest in or to the Site or any Site Content is transferred to you and all rights not expressly granted are reserved. Any use of the Site that is not expressly permitted by these Terms of Use may be a breach of these Terms of Use and may violate copyright, trademark and other laws.

7.3 Feedback. We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Site (“Feedback”).  You may submit Feedback, by way of example and not limitation, by e-mailing us, at customerservice@balmlabs.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of BalmLabs.  Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by BalmLabs or its affiliates for any purpose whatsoever, including developing, improving and marketing products.  You hereby irrevocably transfer and assign to BalmLabs all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.

You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect BalmLabs’ rights in such improvements, enhancements and modifications.

8.1 Third-party Content and Websites. BalmLabs may provide third-party content or links to third-party sites on our Site. BalmLabs does not monitor, approve or have any control over any third-party content or the third-party sites.  The inclusion of links to third party content or third-party sites does not imply any association or relationship between BalmLabs and a third party. BalmLabs does not guarantee, endorse or purport the accuracy of any third-party content or any third-party site. BalmLabs is not responsible for updating or reviewing third party content or third-party sites. Using third party content and third-party sites is at your own risk. That said, the Terms do not apply to companies that BalmLabs does not own or control, or to the actions of people that BalmLabs does not employ or manage. We encourage you to always check the terms and policies of any third-party sites you visit.

8.2 User Content. BalmLabs provides the Site and all other applications and services on the Site as an e-commerce destination only. We are not liable for any statements, representations, or User Content in any public forum on the Site or any third party websites. Any User Content, if displayed, is displayed for entertainment and informational purposes only. BalmLabs does not endorse any User Content (as defined below) or any opinion, recommendation or advice expressed therein, and BalmLabs disclaims all liability with respect to the content posted by you or any third parties. More generally, User Content posted via or on the Site or any third-party site, is not controlled by BalmLabs. BalmLabs cannot guarantee the accuracy, integrity or quality of such User Content. Under no circumstances will BalmLabs be liable in any way for any User Content, including, but not limited to, for (i) any errors or omissions in any content; or (ii) any loss or damage (including, without limitation, personal injury or property damage) of any kind incurred as a result of the use of any User Content posted, emailed or otherwise transmitted via or to the Site. The results reported through user testimonials, including text and images, along with user generated Reviews featured on our product pages, may not necessarily occur in all individuals.

9.1 Warranties by Users. You represent and warrant to BalmLabs that:

i. you are at least eighteen (18) years of age;
ii. you have the power and authority to accept and agree to the Terms;
iii. you own or control all of the rights necessary to grant the rights and licenses granted herein;
iv. you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the Site and products;
v. the exercise by BalmLabs of the rights granted by you hereunder will not cause BalmLabs to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
vi. all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.

9.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SITE AND SITE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  BALMLABS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, OR THE INFORMATION, SITE CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, BALMLABS DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING FOR EXAMPLE THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BALMLABS DOES NOT REPRESENT OR WARRANT THAT THE SITE CONTENT IS ACCURATE, COMPLETE OR CURRENT. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, BUT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. NOTE THAT PRODUCT PRICING AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.

PLEASE NOTE THAT WE DO NOT GUARANTEE THAT THE FUNCTIONAL ASPECTS OF THE SITE OR THE SITES CONTENT WILL BE ERROR FREE. WHILE BALMLABS HAS TRIED TO ACCURATELY DISPLAY THE COLORS OF OUR PRODUCTS AND PACKAGING, THE ACTUAL COLORS YOU SEE WILL DEPEND ON YOUR MONITOR AND MAY NOT BE ACCURATE. WE ALSO DO NOT WARRANT THAT THE SITE, THE SITE CONTENT OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE IS AT YOUR OWN RISK.

BALMLABS AND ITS SUPPLIERS MAKE NO GUARANTEES ABOUT THE SITES CONTENT OR ABOUT RESULTS GARNERED FROM USING IT. YOU, AS THE SITE VISITOR, BEAR THE ENTIRE RISK OF THE ACCURACY OR USEFULNESS OF ANY SITE CONTENT. WE RESERVE THE RIGHT TO WITHDRAW, WHETHER TEMPORARILY OR PERMANENTLY, ANY SITE CONTENT FROM THE SITE AT ANY TIME AND FOR ANY REASON, WITHOUT NOTICE.  AS AN EXPRESS CONDITION TO YOUR USE OF AND ACCESS TO THE SITE, YOU ACKNOWLEDGE, AGREE AND CONFIRM THAT BALMLABS IS NOT LIABLE TO YOU OR ANY THIRD PARTY FOR WITHDRAWING ANY SITE CONTENT FROM THE SITE.

9.3 Limitation of liabilities. BALMLABS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE USE OF OUR SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:

i. THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE SITE IS AND REMAINS WITH YOU AND YOU HEREBY RELEASE BALMLABS AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.

ii. NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY.  ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, BALMLABSAGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).

iii. YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BALMLABS AND YOU AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

To the maximum extent not prohibited by applicable law, you agree to defend, indemnify and hold harmless BalmLabs(and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages including reasonable legal fees, arising out of (i) your use and misuse of the Site; (ii) your violation of any of the Terms; (iii) a breach of your representations and warranties set forth above regarding content; (iv) your violation of any law or the rights of a third party (including, without limitation, any copyright, property or privacy right); or (v) any claim that any of Your Content caused damage to a third party. This indemnification obligation will survive the termination of these Terms of Use and your misuse of the Site.

You agree that, at BalmLabs’ option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) BalmLabs may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of BalmLabs (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.

BalmLabs’ Privacy Policy outlines in full detail how we may collect and use personally identifiable information about you, including any information you supply in connection with your use of the Site. By accessing and using the Site, you consent to the collection and use of this information, including the transfer of this information outside the United States and/or other countries, for storage, processing and use by BalmLabs.  As part of providing you the Site, we may need to provide you with certain communications, such as service announcements and administrative messages.  These communications are considered part of the Site, which you may not be able to opt-out from receiving.

12.1 Governing Law; Venue. The Terms shall be governed by and interpreted in accordance with the laws of the State of New York without regard to conflict of law principles. You and BalmLabs agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Site (collectively, “Disputes”) in the federal or state courts located in New York, New York and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that BalmLabs retains the right to submit a Dispute to any court of competent jurisdiction and BalmLabs reserves the right to impose mandatory arbitration. BalmLabs also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located.  You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.  The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.

12.2. Prohibition of Class and Representative Actions. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST BALMLABS ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW.  FURTHER, UNLESS BOTH YOU AND BALMLABSOTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.

12.3 Claim Limitations. To the extent permitted by applicable laws, you and BalmLabs agree that any cause of action arising out of or related to the Site must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

13.1 Waiver. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such termor any other term, and BalmLabs’ failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

13.2 Severability. The provisions of these Terms of Use are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision is found to be partially or wholly invalid, illegal or unenforceable, such provision shall be modified or restricted to the extent and in the manner necessary to render it valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by BalmLabs, or alternatively, by disposition of an arbitrator or a court of law. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from the Terms of Use without affecting the validity, legality or enforceability of any of the remaining provisions.

13.3 Entire Agreement. These Terms, including these Terms of Use, our Privacy Policy, the applicable Supplemental Terms and any and all Site Rules, constitute the entire and exclusive understanding and agreement between you and BalmLabs regarding your access to and use of the Site and supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between you and BalmLabs and regarding the subject matter hereof.

13.4 Assignment. You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion.  Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. BalmLabs may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.

Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.

13.5 Survival of Terms. Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms of Use shall survive such expiration or termination.

13.6 Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by BalmLabs (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Site.  For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.

13.7 Contact Us.  If you have any questions or concerns, please contact BalmLabs at 1-833-BALMLABS or by sending an email to customerservice@balmlabs.com.

You can also write to us at:

BalmLabs Inc.
388 Carlaw Avenue,
Suite 300, Mailbox 6,
Toronto, Ontario, M4M 2T4
Canada

13.8 California Residents. Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:

Complaints regarding the Site or requests to receive further information regarding use of the Site may be sent to the above address or to customerservice@balmlabs.com.

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 Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210.  Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.

Copyright © 2020 BalmLabs Inc. All rights reserved.