Terms and Conditions

Last Revised September 5, 2024

Welcome to the OhSoPhresh.com website (the “Site”). The Site are provided as a service to our customers. You must be age 16 or older to use the Site. The following terms and conditions govern your use of the Site (the “Agreement”).

Please read the terms below carefully as they affect your legal rights. The agreement includes a class action waiver and jury trial waiver, and requires binding arbitration on an individual basis to resolve most disputes except as otherwise provided below. In arbitration there is less discovery and appellate review than in court. Your use of the sites constitutes your agreement to follow and be bound by the agreement. We reserve the right to update or modify this agreement at any time without prior notice. For this reason, we encourage you to review the agreement whenever you use any of the sites. If you do not agree to these terms, please do not use the sites.

• Site      Transactions
• Site      Contents
• Errors,      Inaccuracies, and Omissions
• User      Comments, Feedback, and Other Submissions
• Your      Personal Information
• Event      Participation Waiver and Release
• Notice      and Procedure for Making Claims of Copyright Infringement
• Product      Information
• Pricing      Policy
• In-Store      Merchandise Locator and Pickup in Store
• Right      to Change Sites
• Links      to Other Websites and Services
• Indemnification
• Limitation      of Liability
• Dispute      Resolution (Including Arbitration Agreement, Class Action Waiver, Jury      Trial Waiver)
• Governing      Law and Venue
• termination
• Severability      and Survival
• general

Site Transactions

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

Site Contents

Unless otherwise noted, the Sites, and all features and materials on the Sites, including text, images, illustrations, designs, icons, photographs, video clips and other content, and the copyrights, trademarks, trade dress, and/or other intellectual property in such materials (collectively, the “Contents”), are owned, controlled, or licensed by OhSoPhresh. and other trademarks appearing on the Site are the trademarks of OhSoPhresh. and/or its subsidiaries.

The Sites and the Contents are intended solely for personal, non-commercial use. You may download or copy the Contents and other downloadable materials displayed on the Site for your personal use only. No right, title, or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell, or exploit in any way any of the Contents or the Site.

Unless otherwise specified, the Site and the Contents are intended to promote OhSoPhresh.com’s products and services available in the United States. The Site are controlled and operated by OhSoPhresh. from its offices in, Massachusetts. One or more patents may apply to the Site.

The content on this site does not constitute medical advice. You should consult your doctor before beginning any exercise, training, or athletic program. OhSoPhresh is not responsible for any medical or health problems that may result from your engaging in any activities described on this site or from any information you obtain from this site. If you ever feel discomfort or pain, you should not continue.

Errors, Inaccuracies, and Omissions

Information on our Site may contain typographical errors, inaccuracies, or omissions that relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information on the Sites is inaccurate at any time without prior notice (including after you have submitted your order).

User Comments, Feedback, and Other Submissions

OhSoPhresh is pleased to hear from you and welcomes your comments regarding our products and services. While we value your feedback, we are unable to accept or consider any creative ideas, suggestions, proposals, plans, or other materials submitted by you (collectively, “Proposals”) other than those we have specifically requested. The intent of this policy is to avoid the possibility of future misunderstandings when projects developed by OhSoPhresh’s employees and agents might seem to be similar to Proposals. Accordingly, we ask that you not send Proposals to anyone at OhSoPhresh through any communication channel.

If you send certain specific submissions at our request (for example, contest entries, customer reviews, or photographs), post comments, photos, reviews, or other content on the Site, or without a request from us you send creative ideas, suggestions, customer reviews, photographs, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Contents”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use your Comments in any medium. OhSoPhresh is and shall be under no obligation (1) to maintain Comments in confidence; (2) to pay compensation for Comments; or (3) to respond to Comments. We have the right but not the obligation to monitor and edit or remove any Comments. You may not repost, republish, or redistribute Comments outside of the Site.

You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead Gap Inc. or third parties as to the origin of any Comments. You agree to comply with our Endorsement Policy and to clearly and conspicuously disclose if you received compensation or other incentive of any kind, from any source, in exchange for posting Comments. You are solely responsible for any Comments you make and their accuracy. OhSoPhresh takes no responsibility and assumes no liability for any Comments posted by you or any third party.

Your Personal Information

Our Privacy Policy explains how we collect, use, and share your personal information when you access or use our website, mobile application, and any other online services. Please read the Privacy Policy to learn more about how we process your personal information, including details on your privacy rights and choices. The Privacy Policy is also available through the link located at the bottom of the Site.

Event Participation Waiver and Release

By signing up for an online activity available through the Site, such as a fitness class (the “Activity”), you agree to assume full responsibility for all risks that may arise out of or result from participation in such Activity. You understand that the Activity can result in physical or emotional injury, and that these risks and dangers may be caused by foreseeable or unforeseeable causes. You hereby represent that you are performing the Activity voluntarily, with full knowledge of the potential hazards, and you expressly, knowingly, and voluntarily assuming the risk of any and all injury.

In consideration of participation in the Activity, you hereby expressly waive, release, and discharge OhSoPhresh and all of its subsidiaries, divisions, affiliates, related entities and/or assigns, including their respective officers, directors, employees, agents, representatives, successors and assigns (collectively, “OhSoPhresh”), from any and all liability for any accident, injury or other loss that may arise from participation in the Activity including, without limitation, accidents, negligence (your own and/or OhSoPhresh’s), equipment malfunction or defect, and/or forces of nature.

You acknowledge and agree that you have carefully read this waiver and release and fully understand that it is a release of liability. You acknowledge and understand you are waiving any right that you may have to bring a legal action to assert a claim against OhSoPhresh for negligence arising out of or connected with the Activity.

Further, you hereby give OhSoPhresh the right and permission to use your comments, name, voice, image and/or likeness recorded or taken during the Activity (collectively “Materials”) in any manner or media, including any online, digital, multi-media, or electronic mediums, anywhere in the world, any number of times for any period of time for any purpose. You waive any right to approve any use of the Materials. You further waive all rights known as “moral rights” which you may now or later have. You hereby release, discharge, and hold harmless OhSoPhresh and any person acting on OhSoPhresh’s behalf from any liability whatsoever related in any way to use of the Materials.

Notice and Procedure for Making Claims of Copyright Infringement

OhSoPhresh respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide OhSoPhresh’s Digital Claim Department Copyright Act designated agent the written information specified below:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed upon;
• A description where the material that you claim is infringing is located on the site;
• 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.

OhSoPhresh’s Copyright Agent for notice of claims of copyright infringement on the Site can be reached as follows:

OhSoPhresh
Legal Department — Brand Services
ATTN: DCD Designated Agent
Email: customerservice@ohsophresh.com

Please note that this procedure is exclusively for notifying OhSoPhresh and its subsidiaries that your copyrighted material has been infringed.

Product Information

Many products displayed on the Site are available in select stores in the United States and, in some cases, select foreign markets. The prices displayed on the Site are quoted in U.S. Dollars.
Certain products are available exclusively online through the Site. These products may have limited quantities and are subject to return or exchange only through the Site according to the applicable return policy.

We have made every effort to display as accurately as possible the colors and styles of our products that appear at the Sites. We cannot guarantee that the display of any color or style on your computer or mobile device will be accurate.

Pricing Policy

The strike through or listed price represents a price at which we previously offered the product, or a comparable product, in our stores or online, recently or in a past season or year, or the value of a similar item in the market. It may not represent the price in effect in our stores, online, or elsewhere in the market on any particular day or in every location.

Right to Change Sites

We reserve the right, at any time in our sole discretion, to modify, suspend, or discontinue the Site or any service, content, feature, or product offered through the Site, with or without notice; charge fees in connection with the use of the Sites; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, or any service, content, feature, or product offered through the Site.

Links to Other Websites and Services

The Site may contain links to other websites that are not under the control of OhSoPhresh. OhSoPhresh has no responsibility for the linked websites nor does linking constitute an endorsement of any linked website. If you use the links, you will leave the Site and your activities may be governed by other terms and conditions and privacy practices. Links are provided solely for your convenience and information.

Indemnification

You agree to defend, indemnify and hold OhSoPhresh harmless from and against any and all claims, damages, costs, and expenses, including attorneys’ fees, due to your use of the Site and/or your breach of any representation, warranty, or other provision of the Agreement.

LIMITATION OF LIABILITY

SUBJECT TO APPLICABLE LAW, INCLUDING WITH RESPECT TO LIABILITY FOR PERSONAL INJURY OR NON-WAIVABLE STATUTORY RIGHTS UNDER NEW JERSEY LAW, IN NO EVENT SHALL OHSOPHRESH. (1) BE LIABLE TO YOU WITH RESPECT TO USE OF THE SITE, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM US), OR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES AND (2) BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT, OR CORRUPTION OF INFORMATION, OR THE INABILITY TO USE THE SITE OR ANY OF THEIR FEATURES. YOUR SOLE REMEDY IS TO STOP USE OF THE SITE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOTICE OF ANY CLAIM OR DISPUTE MUST BE PROVIDED TO OHSOPHRESH WITHIN ONE YEAR OF ITS ACCRUAL OR IT IS FOREVER WAIVED AND TIME BARRED.

IF YOU RESIDE IN A JURISDICTION OTHER THAN NEW JERSEY, YOUR JURISDICTION MAY NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

DISPUTE RESOLUTION (INCLUDING ARBITRATION AGREEMENT, CLASS ACTION WAIVER, JURY TRIAL WAIVER)

Please read this section carefully. It affects your legal rights. It provides for resolution of most disputes through individual arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This section also contains a jury trial waiver and a waiver of any and all rights to proceed in a class, collective, consolidated, private attorney general, or representative action in arbitration or litigation to the fullest extent permitted by applicable law.

Arbitration Agreement

• Binding Individual Arbitration. Any dispute or claim arising out of or relating to this Agreement, your use of the Site, or your relationship with OhSoPhresh, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Dispute”), will be resolved through binding individual arbitration, except that either you or we may elect to have a Dispute heard in small claims court so long as it is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdictional limits of small claims court is for the small claims court to decide in the first instance unless you and OhSoPhresh agree otherwise. Dispute shall be interpreted broadly and include, but not be limited to: (1) any dispute or claim that arose before the existence of this or any prior Agreement (including, but not limited to, claims relating to advertising); (2) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (3) any dispute or claim that may arise after termination of this Agreement. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues except the following, which are for a court of competent jurisdiction to decide: (1) issues that are reserved for a court in this Agreement; (2) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, jury trial waiver, or any of the provisions of this Dispute Resolution section; and (3) issues that relate to the arbitrability of any Dispute. This Agreement and this arbitration agreement do not prevent you from bringing a Dispute to the attention of any government agency. You and we agree that this Agreement evidences a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law (not state arbitration law).

• Mandatory Informal Dispute Resolution Process. Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, both you and OhSoPhresh agree to the following informal dispute resolution procedure before you or OhSoPhresh may initiate arbitration. In the event of any Dispute that arises between you and OhSoPhresh, the party asserting the Dispute shall first send written notice to the other party (by first class or registered mail) that includes all of the following information: (1) contact information (including name, address, email address, and telephone number); (2) a detailed description of the nature and basis of the Dispute and any claims; (3) a detailed description of the relief sought, including a calculation for it; and (4) information sufficient to identify any account and transaction at issue. The notice must be personally signed by the party asserting the Dispute (and your or our counsel, if represented). Your notice to OhSoPhresh must be sent to OhSoPhresh Legal Department. Our notice to you must be sent to your last-used billing address or the billing and/or shipping address in your online profile.

For a period of 60 days from receipt of a completed notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the notice may request a telephone settlement conference to aid in the resolution of the Dispute. If such a conference is requested, you and a OhSoPhresh representative will personally attend (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period. Completion of this Mandatory Informal Dispute Resolution Process (“Process”) is a condition precedent to initiating a claim in arbitration. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this Process in arbitration with a Process Arbitrator or merits arbitrator. All applicable limitations periods (including statutes of limitations) shall be tolled from the date of receipt of a completed notice through the conclusion of this Process. You or we may commence arbitration only if the Dispute is not resolved through this Process.

• Arbitration Procedures.The arbitration of any Dispute shall be administered by and conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (where appropriate) (“AAA Rules”), as modified by this arbitration agreement. The AAA Rules are available online at www.adr.org. Each party has the right to challenge the application of the AAA’s Consumer Arbitration Rules in connection with a Dispute as a threshold administrative issue. You and we understand and agree that the AAA’s administrative determination to register this arbitration agreement means it comports with the Consumer Due Process Protocols and that this determination is final and neither a court nor an arbitrator has the authority to revisit it. If the AAA is unavailable or unwilling to administer the arbitration consistent with this arbitration agreement, the parties shall agree on an administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an administrator that will do so. An arbitration demand must be accompanied by a certification of compliance with the Process and be personally signed by the party initiating arbitration (and counsel, if represented). If you are submitting an arbitration demand, you shall send it to OhSoPhresh at: customerservice@ohsophresh.comGap, Attn: General Counsel, and follow the AAA Rules for initiating arbitration. If OhSoPhresh is submitting an arbitration demand, we shall send it to your last-used billing address or the billing and/or shipping address in your online profile and follow the AAA Rules for initiating arbitration. By submitting an arbitration demand, the party and counsel represent that, as in court, they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking $25,000 or more or injunctive relief shall have an in-person or video hearing unless the parties agree otherwise. You and OhSoPhresh reserve the right to request a hearing in any matter from the arbitrator. You and a OhSoPhresh representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will be held in the county or parish in which you reside or at another mutually agreed location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the fullest extent permitted by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. An arbitrator must follow and enforce this Agreement as a court would. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated. The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.

• Costs of Arbitration. Payment of arbitration fees will be governed by the AAA Rules and fee schedule. You and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or we may elect to engage with the AAA regarding arbitration fees, and you and we agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.

• Additional Procedures for Mass Arbitration. You and we agree that these Additional Procedures for Mass Arbitration (in addition to the other provisions of this arbitration agreement) shall apply if you choose to participate in a Mass Arbitration. If 25 or more similar Disputes (including yours) are asserted against OhSoPhresh by the same or coordinated counsel or are otherwise coordinated (“Mass Arbitration”), you understand and agree that the resolution of your Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties’ and the AAA’s resources. If your claim is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to the AAA until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

o STAGE ONE: If at least 50 Disputes are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for OhSoPhresh shall each select 25 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process. The number of Disputes to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this initial set of proceedings, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and OhSoPhresh shall pay the mediator’s fee.

o STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for OhSoPhresh shall each select 25 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage Two). No more than three cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this second set of staged proceedings, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and OhSoPhresh shall pay the mediator’s fee.

Upon the completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Agreement. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. The Additional Procedures for Mass Arbitration provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Arbitration apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Agreement.

• Future Changes to Arbitration Agreement. If we make any future changes to this arbitration agreement (other than a change to OhSoPhresh’s contact information), you may reject any such change by sending your personally signed, written notice to the following address within 30 days of the change: OhSoPhresh, Attn: General Counsel, with a clear statement that you wish to opt out of changes to the arbitration agreement. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and OhSoPhresh in accordance with this version of the arbitration agreement.

Class Action Waiver and Jury Trial Waiver.

YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN LITIGATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE WAIVE THE RIGHT TO A JURY TRIAL.

GOVERNING LAW AND VENUE

Except with respect to the arbitration agreement, this Agreement and use of the Sites are governed by the laws of the state of California, without regard to California’s conflict of laws rules. If the arbitration agreement is ever deemed unenforceable or void, or a dispute between the parties is not subject to arbitration, you irrevocably consent to the exclusive jurisdiction of the federal and state courts in Norfolk County, Massachusetts for purposes of any legal action arising out of or related to the use of the Site or this Agreement, and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to: (1) inconvenient forum or (2) any other basis or any right to seek to transfer or change venue of any such action to another court.

Termination

You may terminate this Agreement at any time. OhSoPhresh also may terminate this Agreement at any time without notice, and accordingly may deny you access to the Site, if in our sole judgment you fail to comply with any term or provision of the Agreement. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes.

Severability and Survival

Except as otherwise provided herein, if any provision of the Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

In addition to such other provisions that, by their terms, survive any termination or expiration of this Agreement, the following sections shall survive termination of this Agreement: (1) Indemnification; (2) Limitation of Liability; (3) Dispute Resolution (including Arbitration Agreement; Class Action Waiver; Jury Trial Waiver); and (4) Governing Law and Venue.

General

The waiver of any provision of the Agreement shall not be considered a waiver of any other provision or of OhSoPhresh’s right to require strict observance of each of the terms herein. This Agreement constitutes the entire agreement between us relating to your use of the Site.