This iHerb Terms of Sale Agreement ("Agreement") sets forth the agreement between iHerb, LLC (“iHerb) and each purchaser ("user", "your" or "you"). This Agreement governs the purchase of any product on www.muscletech.com (the “Site”) by you. Please read this Agreement carefully and fully before using the Site to make a purchase.
By using the Site for the purchase of products: (i) you agree that you have read and understood the terms of this Agreement, (ii) you accept and agree to be bound by the terms of this Agreement, and (iii) you accept and agree to abide by all laws and regulations applicable to the subject matter of this Agreement.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SITE TO PURCHASE PRODUCTS.
The terms in this Agreement may change periodically and may be revised at any time and from time to time at our sole discretion by updating this posting. You should visit this page from time to time to review the then current terms of sale because they are binding on you. Your continued use of the Site means that you accept any changes or modifications to this Agreement.
RISK OF LOSS/TITLE TRANSFER
All purchases of products are made pursuant to the respective INCOTERMS designated upon order placement. Title for any products purchased by you will transfer upon our delivery to the carrier.
NOT HEALTHCARE ADVICE
The products and claims made about specific products on or through the Site have not been evaluated by the United States Food and Drug Administration and are not approved to diagnose, treat, cure or prevent disease.
The Site is not intended to provide diagnosis, treatment or medical advice. Products, services, information and other content provided on the Site, including information that may be provided on the Site directly or by linking to third-party websites are provided for informational purposes only. Please consult with a physician or other healthcare professional regarding any medical or health related diagnosis or treatment options.
Information on the Site including any product label or packaging should not be considered as a substitute for advice from a healthcare professional. The Site does not recommend self-management of health issues.
Always check the product label or packaging prior to using any product. If there are discrepancies, customers should follow the information provided on the product label or packaging. You should contact Iovate Health Sciences International Inc. directly for clarification as to product labeling and packaging details and recommended use.
All orders placed on this Site are fulfilled by iHerb.
To the extent you make purchases on the Site, you agree that all purchases of products are made pursuant to the respective INCOTERMS designated upon order placement. Title for any products purchased by you will transfer upon our delivery to the carrier.
It is your responsibility to ascertain and comply with all applicable local, state, and federal laws regarding the receipt, possession, use, and sale of any item purchased from this Site.
iHerb reserves the right to prohibit purchases of any merchandise to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them. iHerb does not support sales tax exemption requests for businesses or resellers
PRODUCT PURCHASE LIABILITY DISCLAIMER
YOU AGREE THAT THE USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE, THE PRODUCTS AND THE MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. IHERB, ITS AFFLILATES, AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF ANY OF THEM (COLLECTIVELY, "IHERB ENTITIES") 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE IHERB ENTITIES EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS ATTRIBUTABLE TO NORMAL WEAR, PRODUCT MISUSE OR MODIFICATION, ABUSE, INCORRECT PRODUCT SELECTION AND NOT FOLLOWING PRINTED DIRECTIONS.
IHERB ENTITIES MAKE NO WARRANTY THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS. IHERB DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. IHERB IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, PRODUCT DESCRIPTIONS, TEXT OR PHOTOGRAPHY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IHERB ENTITIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL 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 IHERB ENTITIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE ARRANGEMENT BETWEEN IHERB AND YOU. THE PRODUCTS OFFERED ON AND THROUGH THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. SUBJECT TO THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IF YOU ARE A CUSTOMER, THE MAXIMUM LIABILITY OF IHERB ENTITIES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT PURCHASED BY YOU FROM IHERB ON THE SITE.
BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THESE DISCLAIMERS AND LIMITATIONS DO NOT APPLY TO LIABILITY RESULTING FROM INTENTIONAL OR RECKLESS CONDUCT, GROSS NEGLIGENCE, STRICT LIABILITY, NEGLIGENCE, OR VIOLATION OF A STATUTORILY IMPOSED DUTY ON THE PART OF IHERB.
IHERB ENTITES MAKES NO GUARANTEE OR WARRANTY WITH RESPECT TO ANY PRODUCTS SOLD. IHERB IS NOT RESPONSIBLE FOR ANY DAMAGES FOR INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTIES EVEN IF IHERB HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NEW JERSEY, THIS LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY DUE TO INTENTIONAL OR RECKLESS CONDUCT, GROSS NEGLIGENCE, STRICT LIABILITY, NEGLIGENCE OR VIOLATION OF A STATUTORILY IMPOSED DUTY ON THE PART OF IHERB.
You agree to indemnify, defend and hold harmless iHerb from and against all losses, expenses, costs and damages including attorney's fees resulting from your use or inability to use products purchased, your violation of any terms of this Agreement, your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You agree to cooperate as fully as reasonably required in the defense of any such claim. iHerb reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you pursuant to this section, in which event you will still be required to indemnify us for the attorneys’ fees and expenses in addition to any losses, claims, damages and liabilities incurred by us as a result of this claim. You shall not in any event settle any matter without prior written consent of iHerb. In New Jersey, this indemnification provision does not apply to your liability resulting from intentional or reckless conduct, gross negligence, strict liability, negligence, or violation of a statutorily imposed duty on the part of iHerb.
This Agreement constitutes the only Agreement between iHerb and you with respect to the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous Agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of this Agreement.
If any provision of this Agreement is deemed void, unlawful, or otherwise unenforceable for any reason, that provision will be severed from this Agreement and the remainder of this Agreement will remain in force. When used in this Agreement, the term "including" will be deemed to be followed by the words "without limitation".
APPLICABLE LAW; JURISDICTION; INDIVIDUAL ARBITRATION; WAIVER OF JURY TRIAL; AND CLASS WAIVER
All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to any choice of law or conflict of law.
iHerb and You (collectively the “Parties” and individually a “Party”) further agree that the following agreement to arbitrate is part of an agreement made in interstate commerce and is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, and that on questions of the constructive, validity, enforcement, or interpretation of the agreement to arbitrate, the FAA shall control. You and iHerb Entities agree to arbitrate, on an individual basis, any controversy, claim or dispute arising out of or in any way related to this Agreement, including but not limited to claims based on contract, tort, negligence, statutory or regulatory provisions. It is expressly intended that the iHerb shall have the ability to enforce this arbitration agreement. EACH PARTY IS GIVING UP (WAIVING) ITS RIGHT TO SUE IN COURT AND TO HAVE ANY CONTROVERSY, CLAIM OR DISPUTE HEARD BY A JUDGE OR JURY.
YOU AND IHERB ENTITIES EXPRESSLY AGREE TO ARBITRATE ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT. THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO THRESHOLD ARBITRABILITY ISSUES, INCLUDING ISSUES RELATED TO WHETHER THE AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION.
THE PARTIES ALSO AGREE THAT ANY ARBITRATION MAY ONLY BE BROUGHT IN YOUR AND OUR INDIVIDUAL CAPACITIES, NOT AS A CLASS, PURPORTED CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION.
THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE INDIVIDUAL OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, COLLECTIVE, OR CLASS PROCEEDING. IF ANY PORTION OF THIS CLASS WAIVER PROVISION IS HELD INVALID OR UNENFORCEABLE, IT SHALL NOT BE SEVERED, AND THE ENTIRE AGREEMENT TO ARBITRATION SHALL BE UNENFORCEABLE.
The mutual promise by you and iHerb Entities to arbitrate these disputes, and to do so on an individual basis, rather than to litigate before the courts or other bodies, provides the mutual consideration for this agreement to arbitrate.
Either Party may exercise the right to arbitrate by providing the other Party with written notice of any and all claims forming the basis of such right in sufficient detail to inform the other Party of the substance of such claims, and a demand to arbitrate those claims. In no event shall the request for arbitration be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations.
Unless you and iHerb otherwise agree, the arbitration will be conducted in the county where you reside by a single neutral arbitrator agreed to by the Parties or, if one cannot be agreed upon, pursuant to the then-current American Arbitration Association’s (“AAA”) Consumer Arbitration Rules. Arbitration shall be in accordance with the then-current AAA Consumer Arbitration Rules (available online at www.adr.org.) or, if those rules are no longer available, the applicable rules selected by the arbitrator; provided, however, that no rules permitting class, collective, or other representative arbitrations shall be used. In the event of any conflict between this agreement to arbitrate and the rules governing the arbitration, the terms of this agreement to arbitrate shall control.
The Parties are entitled to representation by an attorney or other representative of their choosing, and at their own costs. Each Party shall pay its own attorney fees. The parties agree to abide by and perform any award rendered by the arbitrator; provided, however, that the arbitrator shall not have the authority to award punitive or exemplary damages or to issue injunctive or other equitable relief. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
The failure of iHerb to enforce your strict performance of any term of this Agreement will not constitute a waiver of such term and will 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 or cause of action arising from or relating to the use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or such claim or cause of action will be permanently barred. The "Liability Disclaimer" provisions of this Agreement are for the benefit of iHerb Entities as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against your on its own behalf.