Introduction
Welcome to the Del Mar Laboratories website (“Site”). This Terms of Use Agreement (“Agreement”)
sets forth the agreement between Del Mar Laboratories, LLC (“DML” or “we”) and each user (“you”
or “user”) governing the use by you of this Site. Please read this Agreement carefully before
using this Site. By using this Site, you agree to be bound by the terms and conditions contained
in this Agreement. If you do not agree to the terms and conditions contained in this Agreement,
you may not access or otherwise use this Site.
These Terms may change from time to time. We will notify you of any material changes to these
Terms by posting a notice on the homepage of the Site for a reasonable period of time after such
changes are made that these Terms have been updated, and by changing the “Last Updated” date at
the top of this webpage. We encourage you to check this page periodically for any changes. Your
continued use of the Site following the posting of changes to these terms will mean you accept
those changes.
In addition, when using particular services or features or making purchases on the Site, you
shall be subject to any posted guidelines or policies applicable to such services, features or
purchases that may be posted from time to time. All such guidelines or policies are hereby
incorporated by reference into this Agreement.
Not Healthcare Advice
This site is not intended to provide medical advice, diagnosis or treatment. The products,
information, services and other content provided on and through this Site, including information
that may be provided on the Site (directly or via linking to third-party sites by a healthcare
or nutrition professional), are provided for informational purposes only. Please consult with
your physician or other healthcare professional (collectively, “Healthcare Professional”)
regarding any medical or health-related diagnosis or treatment options.
The information provided on this Site, Linked Sites (as defined), any product label or product
packaging, including information relating to health conditions or products, is often provided in
summary or aggregate form. Again, it is not intended as a substitute for advice from your
Healthcare Professional.
You should not use the information or services on this Site for diagnosis or treatment of any
health issue or for prescription of any medication, drug or other treatment. You should always
consult with your Healthcare Professional, and carefully read all information about a product
and on or in any product label or packaging, before using any dietary supplement, before
starting any diet or exercise program or before adopting any regimen for a health condition.
Each person is different, and the way you react to a particular product may be significantly
different from the way other people react to such product. You should also consult your
Healthcare Professional regarding any interactions between any medication you are currently
taking and any dietary supplements. DML customers are encouraged to voluntarily participate in
our forums, blogs, or reviews, including descriptions of their experiences with specific
products. Any comments made by employees in these forums or in reviewing products are strictly
their own personal views made in their personally capacity. These comments are not claims made
by DML nor do they represent the view or position of DML.
Purchases
If you make a purchase on the Site, your purchase will be subject to the terms of our Purchase
Policy, which is hereby incorporated into and made part of this Agreement. Please review our
Purchase Policy before making any such purchase. By submitting payment information in connection
with any such purchase, you agree to be bound by the terms of our Purchase Policy.
Privacy
Use of this Site is subject to the terms of our Privacy Policy, which is hereby incorporated into
and made part of this Agreement. Please carefully review our Privacy Policy. By using this Site,
you agree to be bound by the terms of our Privacy Policy. We reserve the right, and you
authorize us, to use information regarding your use of this Site, account registration, and any
other personal information provided by you in accordance with our Privacy Policy.
Copyright and Trademarks
You acknowledge that all materials on the Site, including the Site’s design, graphics, text,
sounds, pictures, software and other files and the selection and arrangement thereof
(collectively, “Materials”), are the property of DML or its licensors, and are subject to and
protected by United States and international copyright and other intellectual property laws and
rights. All rights to Materials not expressly granted in this Agreement are reserved to their
respective copyright owners. Except as expressly authorized by this Agreement or on the Site,
you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit,
exploit, create derivative works or otherwise use any of the Materials in any form or by any
means, without the prior written authorization of DML or the respective copyright owner. DML
authorizes you to view and download the Materials only for personal, non-commercial use,
provided that you keep intact all copyright and other proprietary notices contained in the
original Materials. You may not modify or adapt the Materials in any way or otherwise use them
for any public or commercial purposes. The trademarks, service marks, trade names, trade dress
and logos (collectively, “Marks”) contained or described on this Site (including, without
limitation, any Marks associated with any products available on the Site) are the sole property
of DML and/or its suppliers or licensors and may not be copied, imitated or otherwise used, in
whole or in part, without the prior written authorization of DML and/or its suppliers or
licensors. In addition, all page headers, custom graphics, button icons and scripts are Marks of
DML and may not be copied, imitated or otherwise used, in whole or in part, without the prior
written authorization of DML. DML will enforce its intellectual property rights to the fullest
extent of the law.
Links – Third Party Websites
Links on the Site to third party websites are provided only as a convenience to you. If you use
these links, you will leave the Site. DML does not control or endorse any such third-party
websites. You agree that DML Parties will not be responsible or liable for any content, goods or
services provided on or through these outside websites or for your use or inability to use such
websites. You will use these links at your own risk.
Without limiting the foregoing, your correspondence or business dealings with, or participation
in promotions of, advertisers found on or through the use of the Site, including payment for and
delivery of related goods or services, and any other terms, conditions, warranties or
representations associated with such dealings, are solely between you and such advertiser. You
agree that DML Parties shall not be responsible or liable for any loss or damage of any sort
incurred as the result of any such dealings or as the result of the presence of such advertisers
on the Site.
Disclaimer – Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND
THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DML, LLC, ITS PARENT, SUBSIDIARIES AND OTHER
AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER
REPRESENTATIVES (COLLECTIVELY, “DML PARTIES”) 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.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DML PARTIES MAKE NO WARRANTY THAT (I)
THE SITE WILL MEET YOUR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR
RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY
YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SITE WILL BE
CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE
AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DML PARTIES OR ON OR THROUGH THE
SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
NONE OF THE PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SITE ARE SUBJECT TO ANY APPLICABLE
WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, DML PARTIES DISCLAIM ALL
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES, WITH
RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE SITE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, DML PARTIES EXPRESSLY DISCLAIM ALL LIABILITY FOR
PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT
MODIFICATION, IMPROPER PRODUCT SELECTION AND NON-COMPLIANCE WITH ANY PRINTED DIRECTIONS.
DML PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT
OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, INCLUDING ANY
LIABILITY (I) AS A PUBLISHER OF INFORMATION, (II) AS A RESELLER OF ANY PRODUCTS OR SERVICES,
(III) FOR ANY DEFECTIVE PRODUCTS, (IV) FOR ANY INCORRECT OR INACCURATE INFORMATION, (V) FOR ANY
UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA, (VI) FOR STATEMENTS OR
CONDUCT OF ANY THIRD PARTY ON THE SITE, OR (VII) FOR ANY OTHER MATTER RELATING TO THIS SITE OR
ANY THIRD PARTY WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL
DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF
USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR
THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF
THE BARGAIN BETWEEN DML AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH
THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE
AND ENTIRE MAXIMUM LIABILITY OF DML PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY
FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT,
INFORMATION OR SERVICE PURCHASED BY YOU FROM DML ON THIS SITE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR
EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS
AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE
LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Indemnification
You agree to indemnify, defend and hold harmless DML Parties against all claims, demands, causes
of action, losses, expenses, damages and costs, including any reasonable attorneys’ fees,
resulting or arising from or relating to your use of or conduct on the Site, any activity
related to your account by you or any other person, any material that you submit to, post on or
transmit through the Site, your breach of this Agreement, your infringement or violation of any
rights of another, or termination of your access to the Site.
Site Usage – Termination of Usage
You are required to establish an account on this Site in order to take advantage of certain
features of this Site, such as making a purchase. If you provide information on this Site, you
agree to (a) provide true, accurate, current and complete information about yourself as prompted
by the Site, and (b) maintain and promptly update such information to keep it true, accurate,
current and complete to the extent the Site facilitates such updates. If you provide any
information that is false, inaccurate, outdated or incomplete, or DML has reasonable grounds to
suspect that such information is false, inaccurate, outdated or incomplete, DML has the right to
suspend or terminate your account and prohibit any and all current or future use of the Site (or
any portion thereof) by you.
You will create a username and password while completing the account registration process. You
are responsible for maintaining the confidentiality of the password and account, and are fully
responsible for all activities that occur under your password or account. You are strongly
encouraged to select a hard-to-guess password and not re-use that password on any other sites
where it may be read by the owners or administrators of that site. You agree to (a) immediately
notify DML of any unauthorized use of your password or account or any other breach of security,
and (b) ensure that you exit from your account at the end of each session. You agree to be
responsible for all charges resulting from the use of your account on the Site, including
charges resulting from unauthorized use of your account prior to your taking steps to prevent
such occurrence by changing your password and notifying DML. DML Parties cannot and will not be
liable for any loss or damage arising from your failure to comply with this section.
You agree to use this Site only for lawful purposes, and that you are responsible for your use of
and communications on the Site. You agree not to post on or transmit through this Site any
unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent,
offensive, hateful or otherwise objectionable material of any kind, including any material that
encourages criminal conduct or conduct that would give rise to civil liability, infringes
others’ intellectual property rights or otherwise violates any applicable local, state, national
or international law. You agree not to use this Site in any manner that interferes with its
normal operation or with any other user’s use and enjoyment of the Site.
You further agree that you will not access this Site by any means except through the interface
provided by DML for access to the Site. Creating or maintaining any link from another website to
any page on this Site without the prior written authorization of DML is prohibited. Running or
displaying this Site or any information or material displayed on this Site in frames or through
similar means on another website without the prior written authorization of DML is prohibited.
Any permitted links to this Site must comply with all applicable laws, rule and regulations.
DML makes no representation that Materials contained on the Site or products described or offered
on the Site are appropriate or available for use in jurisdictions outside the United States, or
that this Agreement complies with the laws of any other country. Visitors who use the Site and
reside outside the United States do so on their own initiative and are responsible for
compliance with all laws, if and to the extent local laws are applicable. You agree that you
will not access this Site from any territory where its contents are illegal, and that you, and
not DML Parties, are responsible for compliance with applicable local laws.
This Agreement is effective unless and until terminated by either you or DML. You may terminate
this Agreement at any time, provided that you discontinue any further use of this Site. DML also
may terminate or suspend this Agreement, at any time, without notice, and accordingly deny you
access to the Site, if in DML’s sole discretion you fail to comply with any term or provision of
this Agreement or your use is harmful to the interests of another user or DML Parties. Upon any
termination of the Agreement by either you or us, you must promptly destroy all materials
downloaded or otherwise obtained from this Site, as well as all copies of such materials,
whether made under the terms of use or otherwise. DML reserves the right at any time and from
time to time to modify or discontinue, temporarily or permanently, the Site (or any part
thereof) with or without notice. Except as otherwise expressly stated in this Agreement, you
agree that DML Parties shall not be liable to you or to any third party for any modification,
suspension or discontinuation of the Site.
You agree that DML may terminate or suspend your access to all or part of this Site, without
notice, for any conduct that DML, in its sole discretion, believes is in violation of this
Agreement or any applicable law or is harmful to the interests of another user or DML Parties.
Sections IV (Privacy), VII (Disclaimer – Limitation of Liability), VIII (Indemnification), IX
(Site Usage – Termination of Usage), X (User Content and Conduct), XI (Applicable Law,
Jurisdiction, and Dispute Resolution), XII (Severability and Interpretation) and XIV
(Miscellaneous) shall survive any termination of this Agreement.
User Content and Conduct
Where applicable at the Site, you are invited to post your own content (“User Content”). Please
note that this Site is intended for adult use; if you are under the age of 13, do not submit any
User Content to this Site.
You understand that all User Content, whether you have publicly posted on a forum or privately
transmitted to another Site user or to us, is your sole responsibility. Though the Site is
designed to be a safe place to share such User Content, DML cannot guarantee that other users
will not misuse the User Content that you share. If you have any User Content that you would
like to keep confidential and/or do not want others to use, do not post it to the Site. Under no
circumstances will DML be liable in any way for any User Content, including, but not limited to,
any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a
result of the use of any User Content posted, emailed or otherwise transmitted via the Site. DML
IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT YOU POST TO THE
SITE.
By posting any User Content at the Site, you hereby grant DML a royalty-free, fully paid up,
perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use,
reproduce, modify, adapt, publish, translate, combine with other works, create derivative works
from, distribute, perform, edit and display such User Content (in whole or part) worldwide
and/or to incorporate it in other works in any form, media, or technology now known or later
developed. You specifically waive any “moral rights” in and to the User Content. The foregoing
grant includes, without limitation, any copyrights and other intellectual property rights in and
to your User Content. You represent and warrant that: you own the User Content posted by you on
or through the Site or otherwise have the right to grant the license set forth in this Section
X; and the posting of your User Content on or through the Site does not violate the privacy
rights, publicity rights, copyrights, contract rights or any other rights of any person. You
agree to pay for all royalties, fees, and any other monies owing any person by reason of any
User Content you posted to or through the Site.
You acknowledge and agree that DML may preserve User Content and may also disclose User Content
if required to do so by law or in the good faith belief that such preservation or disclosure is
reasonably necessary to: comply with legal process; enforce this Agreement; respond to claims
that any User Content violates the rights of third-parties; or protect the rights, property, or
personal safety of DML, its users and the public. You understand that the technical processing
and transmission of the Site, including your User Content, may involve: transmissions over
various networks; and changes to conform and adapt to technical requirements of connecting
networks or devices.
You agree to each of the conditions in this Agreement and further agree that each of these
conditions applies forever and broadly with regard to DML worldwide. Posting of User Content to
or through the Site, including ideas or disclosures of opinions, is voluntary on your part. No
confidential or contractual relationship is established by your posting of User Content or is to
be implied by our review or subsequent use of your User Content. DML shall not be liable for any
disclosure of any User Content, including opinion(s) or suggestion(s), you post to or through
the Site. DML SHALL BE ENTITLED TO UNRESTRICTED USE OF ANY USER CONTENT IT MAY RECEIVE FROM YOU
AT OR THROUGH THE SITE, FOR ANY PURPOSE WHATSOEVER, COMMERCIAL OR OTHERWISE, WITHOUT
COMPENSATION TO YOU AS PROVIDER OF THE USER CONTENT
You agree that you will not use the Site to:
- upload, post, email or otherwise transmit any User Content that is unlawful, harmful,
threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of
another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to a representative of DML, or
falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any
User Content transmitted through the Site;
- upload, post, email or otherwise transmit any User Content that you do not have a right to
transmit under any law or under contractual or fiduciary relationships (such as inside
information, proprietary and confidential information learned or disclosed as part of
employment relationships or under non-disclosure agreements);
- upload, post, email or otherwise transmit any User Content that infringes any patent,
trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
- upload, post, email or otherwise transmit any unsolicited or unauthorized advertising,
promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other
form of solicitation, except in those areas that are designated for such purpose;
- upload, post, email or otherwise transmit any material that contains software viruses or any
other computer code, files or programs designed to interrupt, emulate, destroy or limit the
functionality of any computer software or hardware or telecommunications equipment;
- disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of
the Site are able to type, or otherwise act in a manner that negatively affects other users’
ability to engage in real time exchanges;
- 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;
- “stalk” or otherwise harass another;
- collect or store personal data about other Site users; or
- gain access to unauthorized areas of the Site or our network or servers.
Further, by way of example and not as a limitation, you agree not to:
- use the Service in connection with chain letters, junk e-mail, spamming or any duplicative
or unsolicited messages (commercial or otherwise);
- harvest or otherwise collect information about others, including e-mail addresses, without
their consent;
- create a false identity or forged e-mail address or header, or otherwise attempt to mislead
others as to the identity of the sender or the origin of the message;
- transmit through the Service any Materials that are unlawful, harassing, libelous, abusive,
threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or
nature;
- transmit any material that contains viruses, Trojan horses, worms, trap doors, back doors,
Easter eggs, time bombs, cancelbots, netbots, or any other harmful or deleterious programs
or scripts;
- violate any U.S. law regarding the transmission of technical data or software exported from
the United States through the Service;
- interfere with or disrupt networks connected to the Service or violate the regulations,
policies or procedures of such networks;
- attempt to gain unauthorized access to the Service, other accounts, computer systems or
networks connected to the Service, through password mining or any other means; or
- interfere with another User’s use and enjoyment of the Service.
We will terminate the account and/or block Site users who repeatedly violate the above-mentioned
items or the intellectual property rights of any other person on this Site.
You understand that by using the Site, you may be exposed to User Content created by others that
is offensive, indecent or objectionable. DML does not endorse or have control over the User
Content. User Content is not reviewed by DML prior to posting and does not reflect the opinions
or policies of DML. DML makes no representations or warranties, express or implied as to the
User Content or the accuracy and reliability of the User Content or any other material or
information that you may access through the Site. DML assumes no responsibility for monitoring
the Site for inappropriate submissions or conduct. If at any time DML chooses, in its sole
discretion, to monitor the Site, DML nonetheless assumes no responsibility for the User Content,
has no obligation to modify or remove any inappropriate User Content, and has no responsibility
for the conduct of the Site users submitting any such User Content. Notwithstanding the
foregoing, DML and its designees shall have the right to remove any User Content that violates
this Agreement or is otherwise objectionable, in DML’s sole discretion. You agree that you must
evaluate, and bear all risks associated with, the use of any User Content, including any
reliance on the accuracy, completeness, or usefulness of such User Content. In this regard, you
acknowledge that you may not rely on any User Content. You are solely responsible for your
interaction.
You are solely responsible for your interactions with other Site users. DML reserves the right,
but has no obligation, to monitor disputes between you and other Site users and to terminate
your Site access, in its sole discretion.
SMS/MMS Mobile Message Marketing Program Terms and Conditions:
Del Mar Laboratories (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the
“Program”), which you agree to use and participate in subject to these Mobile Messaging Terms
and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of
our Programs, you accept and agree to these terms and conditions, including, without limitation,
your agreement to resolve any disputes with us through binding, individual-only arbitration, as
detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and
is not intended to modify other Terms and Conditions or Privacy Policy that may govern the
relationship between you and Us in other contexts.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting
into the Program, such as through online or application-based enrollment forms. Regardless of
the opt-in method you utilized to join the Program, you agree that this Agreement applies to
your participation in the Program. By participating in the Program, you agree to receive
autodialed or prerecorded marketing mobile messages at the phone number associated with your
opt-in, and you understand that consent is not required to make any purchase from Us. While you
consent to receive messages sent using an auto dialer, the foregoing shall not be interpreted to
suggest or imply that any or all of Our mobile messages are sent using an automatic telephone
dialing system (“ATDS” or “auto dialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to
this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message
from Us in order to opt out of the Program. You may receive an additional mobile message
confirming your decision to opt out. You understand and agree that the foregoing options are the
only reasonable methods of opting out. You also understand and agree that any other method of
opting out, including, but not limited to, texting words other than those set forth above or
verbally requesting one of our employees to remove you from our list, is not a reasonable means
of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number
that has been used to subscribe to the Program, including canceling your service plan or selling
or transferring the phone number to another party, you agree that you will complete the User Opt
Out process set forth above prior to ending your use of the mobile telephone number. You
understand and agree that your agreement to do so is a material part of these terms and
conditions. You further agree that, if you discontinue the use of your mobile telephone number
without notifying Us of such change, you agree that you will be responsible for all costs
(including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the
delivery of the mobile messages, as a result of claims brought by individual(s) who are later
assigned that mobile telephone number. This duty and agreement shall survive any cancellation or
termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY
RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED,
INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227,
et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING
FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program
can expect to receive messages concerning the marketing and sale of digital and physical
products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile
messages, and additional mobile messages may be sent periodically based on your interaction with
Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received
messages from or email us at
mail@delmarlaboratories.com. Please note that
the use of this email address is not an acceptable method of opting out of the program. Opt outs
must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does
not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available
in all areas at all times and may not continue to work in the event of product, software,
coverage or other changes made by your wireless carrier. We will not be liable for any delays or
failures in the receipt of any mobile messages connected with this Program. Delivery of mobile
messages is subject to effective transmission from your wireless service provider/network
operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile
messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way
messaging, be using a participating wireless carrier, and be a wireless service subscriber with
text messaging service. Not all cellular phone providers carry the necessary service to
participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years
of age. If you use or engage with the Platform and are between the ages of thirteen (13) and
eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so.
By using or engaging with the Platform, you acknowledge and agree that you are not under the age
of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your
parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age
in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree
that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the
Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the
Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking
activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry,
hatred, and discrimination on the basis of race, sex, religion, nationality, disability,
sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or
promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected
by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health
Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the
message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and
Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider
acting on Our behalf to transmit the mobile messages within the scope of the Program, arising
out of or relating to federal or state statutory claims, common law claims, this Agreement, or
the breach, termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to arbitrate, such dispute, claim,
or controversy will be, to the fullest extent permitted by law, determined by arbitration in La
Jolla, California before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as
otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal
Judicial Circuit in which Del Mar Laboratories’ principal place of business is located, without
regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand
is served upon a party, the parties must jointly select an arbitrator with at least five years’
experience in that capacity and who has knowledge of and experience with the subject matter of
the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party
may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement.
In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of
this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties
also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu
of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be
final and binding, and no party shall have rights of appeal except for those provided in section
10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the
administration of the arbitration; however, the arbitrator shall have the power to order one
party to pay all or any portion of such fees as part of a well-reasoned decision. The parties
agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent
expressly authorized by statute or contract. The arbitrator shall have no authority to award
punitive damages and each party hereby waives any right to seek or recover punitive damages with
respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an
individual basis, and this agreement does not permit class arbitration or any claims brought as
a plaintiff or class member in any class or representative arbitration proceeding. Except as may
be required by law, neither a party nor the arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties, unless to protect
or pursue a legal right. If any term or provision of this Section is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Section or invalidate or render unenforceable such
term or provision in any other jurisdiction. If for any reason a dispute proceeds in court
rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration
provision shall survive any cancellation or termination of your agreement to participate in any
of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and
authority to agree to these Terms and perform your obligations hereunder, and nothing contained
in this Agreement or in the performance of such obligations will place you in breach of any
other contract or obligation. The failure of either party to exercise in any respect any right
provided for herein will not be deemed a waiver of any further rights hereunder. If any
provision of this Agreement is found to be unenforceable or invalid, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable. Any new features, changes, updates or
improvements of the Program shall be subject to this Agreement unless explicitly stated
otherwise in writing. We reserve the right to change this Agreement from time to time. Any
updates to this Agreement shall be communicated to you. You acknowledge your responsibility to
review this Agreement from time to time and to be aware of any such changes. By continuing to
participate in the Program after any such changes, you accept this Agreement, as modified.
Release of Information
Under normal circumstances, we will never release your provided information to any third party
without your consent. However, in cases of Terms violations or illegal activities, we reserve
the right to forward any and all known information about you and your accounts to your ISP
(including libraries, schools, and places of employment), email service provider, your ISP
account owner (if someone else is actually paying for it), and any parties whose copyright has
clearly been infringed by your actions on the boards, or requests from law enforcement
authorities.
All of the information that we collect from you, such as registration and credit card
information, is subject to our privacy policy. Please Privacy Policy to see our full Privacy
Policy.
Applicable Law, Jurisdiction, and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the State of
Wyoming in the United States, without regard to its choice of law provisions. You agree to
submit to personal jurisdiction in the State of Wyoming and further agree that any cause of
action arising from or relating to the use of this Site or this Agreement shall be brought
exclusively in the federal or state courts residing in Teton County, Wyoming.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND DML HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY
IN ANY PROCEEDING OR LITIGATION BROUGHT AGAINST THE OTHER WITH RESPECT TO THIS AGREEMENT OR THE
SITE. IN ADDITION, NEITHER YOU NOR DML SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR
AGAINST OTHER SITE USERS, OR LITIGATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A
PRIVATE ATTORNEY GENERAL CAPACITY.
Severability and Interpretation
If any provision of this Agreement shall be deemed unlawful, void, or for any reason
unenforceable by a court of competent jurisdiction, the validity and enforceability of any
remaining provisions shall not be affected. When used in this Agreement, the term “including”
shall be deemed to be followed by the words “without limitation.”
Entire Agreement
This Agreement constitutes the entire and only Agreement between DML and each user of this Site
with respect to the subject matter of this Agreement and supersedes any and all prior or
contemporaneous Agreements, representations, warranties and understandings, written or oral,
with respect to the subject matter of this Agreement.
Miscellaneous
The failure of DML Parties to insist upon strict adherence to any term of this Agreement shall
not constitute a waiver of such term and shall not be considered a waiver or limit that party’s
right thereafter to insist upon strict adherence to that term or any other term of this
Agreement. You agree that regardless of any statute or law to the contrary, any claim of cause
of action arising from or relating to use of this Site or this Agreement must be filed within
one (1) year after such claim or cause of action arose, or will be forever barred. The
“Disclaimer; Limitation of Liability” provisions of this Agreement are for the benefit of DML
Parties as defined herein, and each of these individuals or entities shall have the right to
assert and enforce these provisions directly against you on its own behalf.
Policy
We respect the intellectual property rights of others and require that Site users do the same. If
you believe that your proprietary work has been copied in a way that constitutes copyright
infringement, please forward the following information to the DML Copyright Agent, designated as
such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2):
DML Copyright Agent
Address of Agent: Del Mar Laboratories, 1111 6th Avenue, Suite 300, San Diego, CA 92101
Telephone: 888-361-8645
Email:
mail@delmarlaboratories.com
- A physical signature of the person authorized to act on behalf of the owner of the
copyright;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Service;
- Your address, telephone number, and email address;
- A 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
- 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.
