Terms of Service
OVERVIEW
Welcome to EverWell! The terms "we", "us" and "our" refer to EverWell. EverWell operates this store and website, including all related information, content, features, tools, products and services in order to provide you, the customer, with a curated shopping experience (the "Services"). EverWell is powered by Shopify, which enables us to provide the Services to you. The below terms and conditions, together with any policies referenced herein (these "Terms of Service" or "Terms") describe your rights and responsibilities when you use the Services. Please read these Terms of Service carefully, as they include important information about your legal rights and cover areas such as warranty disclaimers and limitations of liability.
IMPORTANT NOTICE: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT, A CLASS ACTION WAIVER, AND A JURY TRIAL WAIVER THAT AFFECT YOUR LEGAL RIGHTS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL DISPUTES WILL BE RESOLVED ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 22 BELOW. PLEASE REVIEW SECTION 22 CAREFULLY.
By visiting, interacting with or using our Services, you agree to be bound by these Terms of Service and our Privacy Policy. If you do not agree to these Terms of Service or Privacy Policy, you should not use or access our Services.
SECTION 1 - ACCESS AND ACCOUNT
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, and you have given us your consent to allow any of your minor dependents to use the Services on devices you own, purchase or manage. To use the Services, including accessing or browsing our online stores or purchasing any of the products or services we offer, you may be asked to provide certain information, such as your email address, billing, payment, and shipping information. You represent and warrant that all the information you provide in our stores is correct, current and complete and that you have all rights necessary to provide this information. You are solely responsible for maintaining the security of your account credentials and for all of your account activity. You may not transfer, sell, assign, or license your account to any other person.
SECTION 2 - OUR PRODUCTS
We have made every effort to provide an accurate representation of our products and services in our online stores. However, please note that colors or product appearance may differ from how they may appear on your screen due to the type of device you use to access the store and your device settings and configuration. We do not warrant that the appearance or quality of any products or services purchased by you will meet your expectations or be the same as depicted or rendered in our online stores. All descriptions of products are subject to change at any time without notice at our sole discretion. We reserve the right to discontinue any product at any time and may limit the quantities of any products that we offer to any person, geographic region or jurisdiction, on a case-by-case basis.
SECTION 3 - ORDERS
When you place an order, you are making an offer to purchase. EverWell reserves the right to accept or decline your order for any reason at its discretion. Your order is not accepted until EverWell confirms acceptance. We must receive and process your payment before your order is accepted. Please review your order carefully before submitting, as EverWell may be unable to accommodate cancellation requests after an order is accepted. In the event that we do not accept, make a change to, or cancel an order, we will attempt to notify you by contacting the e-mail, billing address, and/or phone number provided at the time the order was made. You represent and warrant that your purchases are for your own personal or household use and not for commercial resale or export.
Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between EverWell and you will not take place unless and until you have received your order confirmation email. In the event we deny your order, you will receive a refund to your original form of payment. You understand and agree that we will not be liable for any losses or damages that may result from our refusal to provide you any product or service. We reserve the right to require additional information before processing any order.
SECTION 4 - PRICES AND BILLING
Prices, discounts and promotions are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Unless otherwise expressly stated, posted prices do not include taxes, shipping, handling, customs or import charges. Prices posted in our online stores may be different from prices offered in physical stores or in online or other stores operated by third parties.
We may offer, from time to time, promotions on the Services that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
You agree to provide current, complete and accurate purchase, payment and account information for all purchases made at our stores. You agree to promptly update your account and other information, including your email address, credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
Prices and Payment Terms. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
By submitting payment information to us, you represent and agree that: (i) you are fully authorized to use that card or account; (ii) all payment information provided is complete and accurate; (iii) you will be responsible for any payment card fees; and (iv) that sufficient funds exist to pay us the amount(s) due.
We and our third-party payment service providers may request, and we may receive, updated credit card information from your credit card issuer, such as updated card numbers and expiration date information when your credit card has expired. If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly. Your credit card issuer may give you the right to opt-out of providing vendors and third-party payment service providers with your updated credit card information. If you wish to opt-out of your credit card's updating service, you should contact your credit card issuer.
Automatic Renewals. If you have enrolled in a subscription or membership program, you will automatically be charged on a recurring basis every 4 weeks. TO CANCEL, YOU MUST LOG IN AND CANCEL THE SUBSCRIPTION BEFORE YOUR NEXT SCHEDULED BILLING DATE. All cancellation requests received after your scheduled billing date will apply to the following subscription period. We may refuse to renew any subscription in our sole discretion.
Account Updater Disclosure. We may use an automatic account updater service provided by our payment processor. This service may update your stored payment information, including your card number or expiration date, if your card issuer provides updated information. If your payment information is updated through this service, you authorize us to charge the updated payment method for any amounts due. If you do not wish to have your payment information automatically updated, you must remove your stored payment method or cancel your subscription.
SECTION 5 - SHIPPING AND DELIVERY
We are not liable for shipping and delivery delays. All delivery times are estimates only and are not guaranteed. We are not responsible for delays caused by shipping carriers, customs processing, or events outside our control. Once we transfer products to the carrier, title and risk of loss passes to you.
Delivery Confirmation. Because many instances may occur at your delivery address that are beyond our control, you agree that any delivery confirmation provided by the carrier is deemed sufficient proof of delivery, even without a signature. Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation and will be addressed at our discretion.
SECTION 6 - INTELLECTUAL PROPERTY
Our Services, including but not limited to all trademarks, brands, text, displays, images, graphics, product reviews, video, and audio, and the design, selection, and arrangement thereof, are owned by EverWell, its affiliates or licensors and are protected by U.S. and foreign patent, copyright and other intellectual property laws. These Terms permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Services without our prior written consent.
EverWell's names, logos, product and service names, designs, and slogans are trademarks of EverWell or its affiliates or licensors. You must not use such trademarks without the prior written permission of EverWell. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.
SECTION 7 - OPTIONAL TOOLS
You may be provided with access to customer tools offered by third parties as part of the Services, which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
SECTION 8 - THIRD-PARTY LINKS
The Services may contain materials and hyperlinks to websites provided or operated by third parties (including any embedded third party functionality). We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites you choose to access. If you decide to leave the Services to access these materials or third party sites, you do so at your own risk. We are not liable for any harm or damages related to your access of any third-party websites, or your purchase or use of any products, services, resources, or content on any third-party websites.
SECTION 9 - RELATIONSHIP WITH SHOPIFY
EverWell is powered by Shopify, which enables us to provide the Services to you. However, any sales and purchases you make in our Store are made directly with EverWell. By using the Services, you acknowledge and agree that Shopify is not responsible for any aspect of any sales between you and EverWell, including any injury, damage, or loss resulting from purchased products and services. You hereby expressly release Shopify and its affiliates from all claims, damages, and liabilities arising from or related to your purchases and transactions with EverWell.
SECTION 10 - PRIVACY POLICY
All personal information we collect through the Services is subject to our Privacy Policy. By using the Services, you acknowledge that you have read our privacy policy. Because the Services are hosted by Shopify, Shopify collects and processes personal information about your access to and use of the Services in order to provide and improve the Services for you. Information you submit to the Services will be transmitted to and shared with Shopify as well as third parties that may be located in other countries than where you reside, in order to provide services to you.
SECTION 11 - FEEDBACK
If you submit, upload, post, email, or otherwise transmit any ideas, suggestions, feedback, reviews, proposals, plans, or other content (collectively, "Feedback"), you grant us a perpetual, worldwide, sublicensable, royalty-free license to use, reproduce, modify, publish, distribute and display such Feedback in any medium for any purpose, including for commercial use. You are solely responsible for any Feedback you make and its accuracy. We take no responsibility and assume no liability for any Feedback posted by you or any third-party.
SECTION 12 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on or in the Services that contain typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times 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 is inaccurate at any time without prior notice (including after you have submitted your order).
SECTION 13 - PROHIBITED USES
You may access and use the Services for lawful purposes only. You may not access or use the Services, directly or indirectly: (a) for any unlawful or malicious purpose; (b) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (c) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (d) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or harm any of our employees or any other person; (e) to transmit false or misleading information; (f) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms; (g) to transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation; (h) to impersonate or attempt to impersonate any other person or entity; or (i) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services.
SECTION 14 - TERMINATION
We may terminate this agreement or your access to the Services (or any part thereof) in our sole discretion at any time without notice, and you will remain liable for all amounts due up to and including the date of termination.
SECTION 15 - DISCLAIMER OF WARRANTIES
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. EXCEPT AS EXPRESSLY STATED BY EverWell, THE SERVICES AND ALL PRODUCTS OFFERED THROUGH THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
SECTION 16 - LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO CASE SHALL EverWell, OUR PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICES OR ANY PRODUCTS PROCURED USING THE SERVICES. EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT WILL EverWell'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID EverWell IN THE LAST TWELVE (12) MONTHS, OR IF GREATER, ONE HUNDRED DOLLARS ($100).
SECTION 17 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless EverWell, Shopify, and our affiliates, partners, officers, directors, employees, agents, contractors, licensors, and service providers from any losses, damages, liabilities or claims, including reasonable attorneys' fees, payable to any third party due to or arising out of (1) your breach of these Terms of Service or the documents they incorporate by reference, (2) your violation of any law or the rights of a third party, or (3) your access to and use of the Services.
SECTION 18 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 19 - WAIVER; ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us.
SECTION 20 - ASSIGNMENT
You may not delegate, transfer or assign this Agreement or any of your rights or obligations under these Terms without our prior written consent, and any such attempt will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent or notice to you.
SECTION 21 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the federal and state or territorial courts in the jurisdiction where EverWell is headquartered. You and EverWell consent to venue and personal jurisdiction in such courts.
SECTION 21A - NO MEDICAL ADVICE
The material available through the Services is provided for general informational purposes only and is not intended as medical advice or as a substitute for seeking advice from a qualified healthcare provider. The statements made through the Services have not been evaluated by the Food and Drug Administration. You should consult your healthcare provider before using any information provided by EverWell. EverWell does not make any guarantee that you will accomplish any health or wellness goals. Your results may vary depending upon a variety of factors unique to you, such as your age, health, and genetics.
SECTION 21B - GOODS NOT FOR RESALE OR EXPORT
You represent and warrant that you are buying products or services from EverWell for your own personal or household use only, and not for resale or export. You agree to comply with all applicable laws and regulations of any state and of the United States with respect to these products or services.
SECTION 21C - ELECTRONIC COMMUNICATIONS
You consent to receive electronic communications from EverWell either in the form of email sent to you at the email address listed on your account or by communications posted on the Services for any purpose. You acknowledge and agree that any electronic communication in the form of such email or posting on the Services shall satisfy any legal requirement that such communication from EverWell be in writing.
SECTION 21D - FORCE MAJEURE
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, or power outage.
SECTION 21E - LIMITATION ON TIME TO FILE CLAIMS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES, ANY PRODUCT, OR ANY TRANSACTION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES. IF NOT COMMENCED WITHIN THAT PERIOD, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED.
SECTION 21F - NOTICES
To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide; or (ii) by posting to the Services. Notices sent by email will be effective when we send the email.
To Us. To give us notice under these Terms, you must contact us by personal delivery, overnight courier, or registered or certified mail to: EverWell, Attn: Legal Department, [EverWell Address]. You can also reach us at info@tryeverwellhealth.com.
SECTION 22 - DISPUTE RESOLUTION; BINDING ARBITRATION; CLASS ACTION WAIVER; JURY TRIAL WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL, AND YOUR RIGHT TO PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, UNLESS YOU OPT OUT AS DESCRIBED BELOW.
Governing Law for Disputes. These Terms, your use of the Services, any purchases made through the Services, and any controversy, claim, or dispute arising out of or relating in any way to your use of the Services, your purchases, or your Account (collectively, "Disputes") shall be governed by the federal and state or territorial laws in the jurisdiction where EverWell is headquartered, without respect to its choice of law rules. All Disputes between EverWell and you must be commenced within one (1) year after the claim or cause of action arose; any claim not commenced within that period is permanently barred.
Mandatory Pre-Arbitration Notice and Informal Resolution. Before either party demands arbitration, the claiming party must send a written Notice of Dispute to the other party that includes: (1) the claimant's full name, mailing address, and email address associated with their Account; (2) a description of the nature and basis of the claim; and (3) the specific relief sought. If you are the claimant, send your notice to: EverWell, Attn: Legal Department, [EverWell Address], or by email to info@tryeverwellhealth.com. The parties agree to personally meet and confer in a good-faith effort to resolve the Dispute informally within sixty (60) days of the date the notice is sent.
Agreement to Arbitrate. If the Dispute is not resolved through the informal process described above, you and EverWell agree that any and all Disputes shall be resolved exclusively through final, binding, and confidential individual arbitration, rather than in court. Arbitration shall be administered by the American Arbitration Association ("AAA") under its then-current Consumer Arbitration Rules, available at www.adr.org or by calling 1-800-778-7879.
CLASS ACTION WAIVER. YOU AND EverWell AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR CLASS REPRESENTATIVE IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING.
JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF ANY DISPUTE PROCEEDS IN COURT FOR ANY REASON, YOU AND EverWell EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Opt-Out Right. You may opt out of this arbitration agreement and class action waiver by sending written notice to EverWell within thirty (30) days of the date you first accept these Terms or make your first purchase through the Services, whichever is earlier. Your opt-out notice must be sent by certified mail to: EverWell, Attn: Legal Department, [EverWell Address], and must include: (1) your full name; (2) your mailing address; (3) the email address associated with your Account; and (4) a clear statement that you wish to opt out of the arbitration agreement and class action waiver.
SECTION 23 - HEADINGS
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 24 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time on this page. We reserve the right, in our sole discretion, to update, change, or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 25 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@tryeverwellhealth.com.