Terms and CONDITIONS
TERMS AND CONDITIONS
This Terms of Service ('TOS') is a legally binding agreement made by and between
Ayush Herbs, Inc. ('we' or 'us') and you, personally and, if applicable, on
behalf of the entity for whom you are using this web site (collectively, 'you').
This TOS governs your use of the our web site ('Web Site') and the services we
offer on the Web Site ('Services'), so please read it carefully.
BY ACCESSING OR USING ANY PART OF THE WEB SITE, YOU AGREE THAT YOU HAVE
READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS TOS. IF YOU DO NOT AGREE TO BE SO
BOUND, DO NOT ACCESS OR USE THE WEB SITE.
INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE
FREQUENTLY. ACCORDINGLY, WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY
TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR
MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.
1. Using The Web Site.
(a) Eligibility. Except as expressly provided below, the Web
Site may only be used by individuals and entities who can form legally binding
contracts under applicable law. No person under the age of 18 may use the Web
Site without the supervision of a parent or legal guardian. Your use of the Web
Site will be deemed to be a representation that you are 18 years of age or older
or using the Web Site with the permission of your parent or guardian. We require
that all purchases be made either (i) by individuals 18 years of age or older or
(ii) by minors given verifiable permission by their parent or legal guardian to
purchase items on the Web Site.
(b) License and Restrictions. Subject to the terms and
conditions of this TOS, you are hereby granted a limited, non-exclusive right to
use the content and materials on our Web Site in the normal course of your use
of the Web Site. We will retain ownership of our intellectual property rights
and you will not obtain any rights therein by virtue of this TOS or otherwise,
except as expressly set forth in this TOS. You will have no right to use, copy,
display, perform, create derivative works from, distribute, transmit or
sublicense materials or content available on the Web Site, except as expressly
set forth in this TOS.
(c) Prohibited Conduct. In your use of the Web Site, you may
not: (i) infringe any patent, trademark, trade secret, copyright, right of
publicity or other right of any party; (ii) disrupt or interfere with the
security or use of the Web Site or any web sites linked to the Web Site; (iii)
interfere with or damage the Web Site, including, without limitation, through
the use of viruses, cancel bots, Trojan horses, harmful code, flood pings,
denial of service attacks, packet or IP spoofing, forged routing or electronic
mail address information, or similar methods or technology; (iv) impersonate
another person or entity, misrepresent your affiliation with a person or entity,
including (without limitation) us, or use a false identity; (v) attempt to
obtain unauthorized access to the Web Site; (vi) engage, directly or indirectly,
in transmission of “spam,” chain letters, junk mail or any other type of
unsolicited solicitation; (vii) collect, manually or through an automatic
process, information about other users or the Web Site without their or our
express written consent; (viii) submit false or misleading information to us;
(ix) violate any law, rule, or regulation; (x) engage in any activity that
interferes with any third party’s ability to use or enjoy the Web Site; or (xi)
assist or encourage any third party in engaging in any activity prohibited by
2. Your Content.
(a) License. By posting, storing, or transmitting any content
on or to the Web Site, you hereby grant us a perpetual, worldwide,
non-exclusive, royalty-free, sub-licensable, right and license to use, copy,
display, perform, create derivative works from, distribute, have distributed,
transmit and sublicense such content in any form, in all media now known or
hereinafter created, anywhere in the world. You hereby irrevocably waive any
claims based on moral rights or similar theories, if any.
(b) Objectionable Content. We do not have the ability to
control the nature of the user-generated content offered through the Web Site.
You are solely responsible for your interactions with other users of the Web
Site and any content that you post. We will not be liable for any damage or harm
resulting from any content or your interactions with other users of the Web
Site. We reserve the right, but have no obligation, to monitor interactions
between you and other users of the Web Site and take any other action to
restrict access to or the availability of any material that we or another user
of the Web Site may consider to be obscene, lewd, lascivious, filthy,
excessively violent, harassing or otherwise objectionable (including, without
limitation, because it violates this TOS).
3. Accuracy of Information. We attempt to ensure that the
information on the Web Site is complete and accurate; however, this information
may contain typographical errors, pricing errors, and other errors or
inaccuracies. We assume no responsibility for such errors and omissions, and
reserve the right to: (i) revoke any offer stated on the Web Site; (ii) correct
any errors, inaccuracies or omissions; and (iii) make changes to prices,
content, promotions, product descriptions or specifications, or other
information on the Web Site.
4. Sales Tax. If you purchase any product(s) using the Web
Site, you will be responsible for paying any sales tax indicated on the Web
5. Shipping Limitations. When you place an order for any
product(s) using the Web Site, we will ship the product(s) to the address
designated by you. Risk of loss and title for the product(s) pass to you upon
delivery of the product(s) to the carrier. You are responsible for filing any
claims with carriers for damaged or lost shipments.
6. Fraud. We reserve the right, but undertake no obligation, to
actively report and prosecute actual and suspected credit card fraud. We may, in
our discretion, require further authorization from you such as a telephone
confirmation of your order and other information. We reserve the right to
cancel, delay, refuse to ship, or recall from the shipper any order if fraud is
suspected. We capture certain information during the order process, including
time, date, IP address, and other information that will be used to locate and
identify individuals committing fraud. If any Web Site order is suspected to be
fraudulent, we reserve the right, but undertake no obligation, to submit all
records, with or without a subpoena, to all law enforcement agencies and to the
credit card company for fraud investigation. We reserve the right to cooperate
with authorities to prosecute offenders to the fullest extent of the law.
7. Security. We employ measures designed to ensure the security
of the Web Site, but, as provided below, make no guarantees in this regard.
8. Intellectual Property Rights.
(a) Copyright. All materials on the Web Site, including without
limitation, the logos, design, text, graphics, other files, and the selection
and arrangement thereof are either owned by us or are the property of our
suppliers or licensors. You may not use such materials without permission. ©
2010 Ayush Herbs, Inc. ALL RIGHTS RESERVED.
(b) Trademarks. You may not use any of our trademarks, trade
dress, or trade names without our express written permission.
9. Third-Party Services. We may use third parties to provide
certain services accessible through the Web Site and may provide links to
third-party web sites. We do not control those third parties, their services, or
their web sites. We will not be liable to you in any way for your use of such
other policies. You must comply with such terms and policies as well as these
TOS when you use these services and web sites.
10. Linking and Framing. You may not deep link to portions of
the Web Site, or frame, inline link, or similarly display any of our property,
including, without limitation, the Web Site. You may not use any of our logos or
other trademarks as part of a link without express written permission.
11. Comments. All comments, feedback, suggestions, ideas, and
other submissions that you disclose, submit or offer to us in connection with
your use of the Web Site (collectively, “Comments”) will become our exclusive
property. Such disclosure, submission or offer of any Comments shall constitute
an assignment to us of all worldwide right, title and interest in all patent,
copyright, trademark, and all other intellectual property and other rights
whatsoever in and to the Comments and a waiver of any claim based on moral
rights, unfair competition, breach of implied contract, breach of
confidentiality, and any other legal theory. You will, at our cost, execute any
documents to effect, record, or perfect such assignment. Thus, we will own
exclusively all such right, title and interest and shall not be limited in any
way in the use, commercial or otherwise, of any Comments. You should not submit
any Comments to us if you do not wish to assign such rights to us. We are and
will be under no obligation: (i) to maintain any Comments in confidence; (ii) to
pay to you or any third party any compensation for any Comments; or (iii) to
respond to any Comments. You are and shall remain solely responsible for the
content of any Comments you make.
12. Indemnification. You agree to hold us and our employees,
representatives, agents, attorneys, affiliates, directors, officers, managers
and shareholders (the “Indemnified Parties”) harmless from any damage, loss,
cost or expense (including without limitation, attorneys’ fees and costs)
incurred in connection with any third-party claim, demand or action (“Claim”)
brought or asserted against any of the Indemnified Parties arising from, related
to, or connected with your use of the Web Site. If you are obligated to provide
indemnification pursuant to this provision, we may, in our sole and absolute
discretion, control the disposition of any Claim at your sole cost and expense.
Without limitation of the foregoing, you may not settle, compromise or in any
other manner dispose of any Claim without our consent.
13. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
(a) DISCLAIMER OF WARRANTIES. WE PROVIDE THE WEB SITE ON AN “AS
IS” AND “AS AVAILABLE” BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE WEB SITE,
THE SERVICES, ITS USE, ANY INFORMATION ON IT: (I) WILL BE UNINTERRUPTED OR
SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET
YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER
HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE
EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY AND NON-INFRINGEMENT.
(b) DISCLAIMER OF FORWARD-LOOKING STATEMENTS. THIS WEB SITE MAY
CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT OUR CURRENT EXPECTATION
REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS
INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER
MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH
ARE OUTSIDE OUR CONTROL.
(c) HEALTH RELATED INFORMATION. WE PROVIDE INFORMATION ON THE
WEB SITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR
THE ADVICE OF A DOCTOR OR OTHER HEALTH CARE PROFESSIONAL. YOU SHOULD NOT USE THE
INFORMATION AVAILABLE ON OR THROUGH THE WEB SITE FOR DIAGNOSING OR TREATING A
MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INSTRUCTIONS PRIOR TO
(d) PRODUCTS. ALL PRODUCTS ARE SUBJECT ONLY TO ANY APPLICABLE
WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS, IF
ANY, PROVIDED IN THE PRODUCT PACKAGING. TO THE FULLEST EXTENT PERMISSIBLE BY
APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL
LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR,
PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION,
NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
(e) EXCLUSION OF DAMAGES. WE WILL NOT BE LIABLE TO YOU OR ANY
THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST
DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE
OF THE WEB SITE OR PRODUCTS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE
BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
(f) LIMITATION OF LIABILITY. IN NO EVENT WILL OUR AGGREGATE
LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS (INCLUDING,
WITHOUT LIMITATION, CLAIMS RELATING TO THE WEB SITE, OR THE PRODUCTS) EXCEED THE
GREATER OF AUD100 OR THE AMOUNT THAT YOU PAID FOR THE PRODUCTS.
14. Domestic Use; Export Restriction. We control the Web Site
from our offices within the United States of America for purchase by customers
in the United States of America. We make no representation that the Web Site or
its content (including, without limitation, the product(s) available on or
through the Web Site) is appropriate or available for use in other locations.
Users who access the Web Site from outside the United States of America do so on
their own initiative and must bear all responsibility for compliance with local
laws, if applicable.
15. Force Majeure. We will not be liable for failing to perform
under this TOS because of any event beyond our reasonable control, including,
without limitation, a labor disturbance, an Internet outage or interruption of
service, a communications outage, failure by a service provider to perform,
fire, terrorism, natural disaster or war.
16. Arbitration. All disputes arising out of or relating to
this TOS (including its formation, performance or alleged breach) or your use of
the Web Site will be exclusively resolved under confidential binding arbitration
held in Washington, U.S.A.. The arbitrator’s award will be binding and may be
entered as a judgment in any court of competent jurisdiction. To the fullest
extent permitted by applicable law, no arbitration under this TOS will be joined
to an arbitration involving any other party subject to this TOS, whether through
class arbitration proceedings or otherwise. Notwithstanding the foregoing, we
will have the right to seek injunctive or other equitable relief in state or
federal court located in the state of Washington to enforce this TOS or prevent
an infringement of a third party’s rights. In the event equitable relief is
sought, each party hereby irrevocably submits to the personal jurisdiction of
17. WAIVER OF CLASS ACTION RIGHTS. BY ENTERING INTO THIS TOS,
YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF
OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS
ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS TOS MUST BE ASSERTED
18. Limitation of Actions. You acknowledge and agree that,
regardless of any statute or law to the contrary, any claim or cause of action
you may have arising out of, relating to, or connected with your use of the Web
Site, must be filed within one calendar year after such claim or cause of action
arises, or forever be barred.
19. Changes to the Web Site. We may, in our sole discretion,
change, modify, suspend, make improvements to or discontinue any aspect of the
Web Site, temporarily or permanently, at any time without notice to you, and we
will not be liable for doing so. We may at any time modify any relevant terms
and conditions, policies or notices. You acknowledge that by visiting the Web
Site from time to time, you shall become bound to the current version of the
relevant terms and conditions and, unless stated in the current version, all
previous versions shall be superseded by the current version. You shall be
responsible for reviewing the current version of these terms and conditions each
time you visit the Web Site.
20. Termination. We will have the right to terminate your
access to the Web Site if we reasonably believe you have breached any of the
terms and conditions of this TOS. Following termination, you will not be
permitted to use the Web Site and we may, in our discretion, cancel any
outstanding Product Orders. If your access to the Web Site is terminated, we
reserve the right to exercise whatever means we deem necessary to prevent
unauthorized access to the Web Site, including, but not limited to,
technological barriers, IP mapping, and direct contact with your Internet
Service Provider. This TOS will survive indefinitely unless and until we choose
to terminate it, regardless of whether any account you open is terminated by you
or us or if you have the right to access or use the Web Site.
21. Integration. This TOS contains the entire understanding
between you and us regarding the use of the Web Site, and supersedes all prior
and contemporaneous agreements and understandings between you and us relating
22. Additional Terms. This TOS will be binding upon each party
hereto and its successors and permitted assigns, and governed by and construed
in accordance with the laws of the State of Washington, United States of
America, without regard for conflict of law principles. This TOS and all of your
rights and obligations under them may not be assignable or transferable by you
without our prior written consent. No failure or delay by a party in exercising
any right, power or privilege under this TOS will operate as a waiver thereof,
nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege under this TOS. You are an independent contractor,
and no agency, partnership, joint venture, employee-employer relationship is
intended or created by this TOS. The invalidity or unenforceability of any
provision of this TOS will not affect the validity or enforceability of any
other provision of this TOS, all of which will remain in full force and effect.