Terms of Service
Last Updated: December 12, 2023
These Terms of Service ("Terms") apply to your access to and use of (i) the website located at therootist.com (or any successor links) and all associated web pages, websites, and social media pages (the "Site") provided by The Rootist Inc. ("The Rootist", "we", "our" or "us"), (ii) the online services (together with the Site, the "Services") and (iii) the products sold or otherwise provided by The Rootist (the "Products").
BY AGREEING TO THESE TERMS, YOU AND THE ROOTIST AGREE TO RESOLVE MOST DISPUTES SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. IF YOU DO NOT WISH TO ARBITRATE DISPUTES WITH THE ROOTIST, YOU MAY OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 19. The terms of sale in Section 7 apply to any purchases you make through the Services. If you do not agree to these Terms, do not use our Services.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Products or Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Products or Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
1 Eligibility and Use Restrictions
(a) Age. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at email@example.com.
(b) Use and Sharing. You may only use our Services for personal, family or household purposes. This means that you may not order Products from the Services for resale.
2 Your Information
You may provide certain information to The Rootist in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS, and other types of communication from The Rootist via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to The Rootist in connection with the Services is accurate.
You may create an account with The Rootist through the Services. If you create an account with us, you must: (a) not share or permit others to use your individual account credentials; (b) promptly update any information contained in your account if it changes; (c) use a strong password for your account that is unique to our Services and not used by you in any other website or online service; and (d) maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission.
4 User Content
(a) Our Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, videos, and other materials (collectively, "User Content"). Depending on your account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
(b) Except for the license you grant below, as between you and The Rootist, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant The Rootist and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
Impersonates, or misrepresents your affiliation with, any person or entity;
Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
Contains any private or personal information of a third party without such third party’s consent;
Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose The Rootist or others to any harm or liability of any type.
(d) Enforcement of this Section 4 is solely at The Rootist’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(e) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
Take any action with respect to your User Content that is necessary or appropriate, in The Rootist’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect The Rootist’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.
5 Prohibited Conduct
(a) You will not use our Services if you are not eligible to use our Services in accordance with Section 1 and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:
Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
Use or attempt to use another user’s account or information without authorization from that user and The Rootist;
Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
Sell or resell our Services or order Products for the purpose of reselling them;
Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that The Rootist grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. The Rootist reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
Develop or use any applications or software that interact with our Services without our prior written consent;
Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by The Rootist; or
Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section 5 is solely at The Rootist’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
6 Product Listings
The Services may make available listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products ("Listings"). We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Approximate measurements and other descriptions in Listings are provided for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, in Listings; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
7 Terms of Sale
All purchases or other transactions initiated through the Services are governed by the terms set forth in this Section 7.
(a) Eligibility. To complete your purchase, you must have a valid billing and shipping address within a country that can be selected as part of the checkout process on the Services.
(b) Restrictions. You may only purchase Products for personal use by either yourself or their intended recipient. The Products are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.
(c) Prices and Taxes. Prices shown in Listings exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase.
(d) Payment. If you wish to make a transaction, you will be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information, to us or our payment processors (your “Payment Information”). You represent and warrant that you have the right to use any Payment Information that you submit in connection with a transaction. We may receive updated Payment Information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to use your Payment Information, including any updated Payment Information we receive, for any charges you are responsible for under these Terms. Verification of Payment Information may be required prior to the acknowledgment or completion of any transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
(e) Shipping; Delivery. Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions set forth in these Terms or otherwise contained on the Services. You will pay all shipping and handling charges specified during the ordering process. All transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers or insurers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.
(f) Order Delays; Cancellation. We reserve the right to delay, refuse, or cancel any order prior to delivery. For example, if there is a pricing error in a Listing or an error related to Product availability, we may correct the error by charging you the correct price or we may cancel your order. We will attempt to contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
(g) Returns, Refunds and Exchanges. Returns, refunds, and exchanges will be subject to The Rootist’s Returns Policy.
(h) Reservation of Rights. The Rootist reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any transaction; to alter the payment option for Products; and to refuse to provide any user with any Product.
8 Product Subscriptions
(a) Enrolling. You may be permitted to enroll in an automatically renewing subscription for certain Products on either a monthly, quarterly or other time period basis (“Subscription Periods”) for the recurring fee indicated at the time you enroll in the subscription (“Subscription Fee”). Such subscriptions (“Recurring Subscriptions”) are continuous until you cancel them.
(b) Subscription Fees. You will be charged the Subscription Fee both (i) when you initially enroll in a Recurring Subscription or when your Promotional Offer (as defined in Section 8(e) below) ends and (ii) at the beginning of each subsequent Subscription Period until you cancel. You hereby authorize The Rootist and our payment processors to use your Payment Information to automatically charge you the Subscription Fee as stated above. In the event that your Payment Information cannot be charged for a Subscription Fee, The Rootist may in its sole discretion (i) bill you for your Subscription Fee and suspend your Recurring Subscription until payment is received or (ii) seek updated Payment Information through third-party sources (i.e., your bank) to use as your updated Payment Information on a going forward basis.
(c) Managing Subscriptions. You may cancel your subscription through logging into your account and select cancel. You must cancel your Recurring Subscription at least 48 hours before the end of the current Subscription Period to avoid being charged the Subscription Fee for the next Subscription Period. You will not be entitled to any refund as a result of canceling a Recurring Subscription, and your Recurring Subscription will be cancelled at the end of its then-current Subscription Period.
(d) Price Changes. The Rootist may change the Subscription Fee charged for Recurring Subscriptions at any time by posting updated pricing through the Services; provided, however, that the Subscription Fee for your Recurring Subscription will remain in force for the duration of any Subscription Period for which you have already paid. After that Subscription Period ends, you will be charged at the then-current Subscription Fee on a going forward basis. If you do not agree to a Subscription Fee change, you must cancel your Recurring Subscription at least 48 hours before the changes take effect.
(e) Promotional Offers. You may be offered a trial period before your Recurring Subscription begins or a discounted initial Subscription Fee on a Recurring Subscription through the use of promotional codes, coupon codes, offer codes, or other promotional discounts (each a "Promotional Offer"). If we offer you a Promotional Offer, the specific terms of your Promotional Offer will be provided in the marketing materials describing the particular offer or at registration (“Offer Terms”). You must meet all eligibility requirements stated in these Terms and the Offer Terms to enroll in a Promotional Offer. Unless stated otherwise in the Offer Terms, Promotional Offers are only for new customers who have not previously enrolled in a Recurring Subscription or Promotional Offer. The Rootist reserves the right, in its discretion, to determine your Promotional Offer eligibility, and to modify or cancel a Promotional Offer at any time. Promotional Offers only last for the period of time stated in the Offer Terms (the "Promotional Period"). Unless otherwise stated in the Offer Terms or at registration, Payment Information is required to enroll in a Promotional Offer. By enrolling in a Promotional Offer, you enroll in a Recurring Subscription, and the Subscription Fee for your Recurring Subscription will, during the Promotional Period, be the price stated in the Offer Terms. Upon the end of the Promotional Period, your Recurring Subscription will automatically renew at the then-current price as stated in Section 8(b). If you do not wish to be charged at the then-current price, you must cancel your Recurring Subscription as stated in Section 8(c) before the end of the Promotional Period.
10 Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights in the Services and Products are owned by The Rootist or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services and intellectual property rights in the Services and Products are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
The name The Rootist and our logos, Product or service names, slogans, and the look and feel of the Services are trademarks of The Rootist and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about The Rootist or our Products or Services (collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to improve or develop products or services in The Rootist’s sole discretion. The Rootist will exclusively own all works or improvements based on any Feedback. You understand that The Rootist may treat Feedback as nonconfidential.
13 Repeat Infringer Policy; Copyright Complaints
(a) Our Policy. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others.
14 Third-Party Content and Offerings
(a) Third-party code may be utilized in connection with the Services that may be subject to open-source licenses ("Open-Source Software"). The Open-Source Software is licensed to us under the terms of the license that accompanies such Open-Source Software and may be licensed to you under the terms of the same license or through other terms. Nothing in the Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open-Source Software.
(b) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content, information, or offerings available on or through the Services (collectively, "Third-Party Content"). We provide Third-Party Content for those interested in such content, but your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
(c) We have no obligation to monitor Third-Party Content, and we may block or disable access to any Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Content). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
To the fullest extent permitted by applicable law, you will indemnify and hold harmless The Rootist and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the "The Rootist Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs (including attorneys' fees) associated with claims, demands or other actions arising out of or related to (a) your access to or use of the Products or Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. The Rootist Parties will have control of the defense or settlement, at The Rootist's sole option, of any third-party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and The Rootist or the other The Rootist Parties.
Your use of our Services and any content or materials provided therein or therewith is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Products, Services, and any content or materials provided therein or therewith are provided “as is” and “as available” without warranties of any kind, either express or implied. The Rootist disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, The Rootist does not represent or warrant that our Products or Services or any content provided therein or therewith are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith will be uninterrupted. While The Rootist attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Products and Services and any content provided therein or therewith. All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of The Rootist, the other The Rootist Parties, and The Rootist’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
17 Limitation of Liability
(a) To the fullest extent permitted by applicable law, The Rootist and the other The Rootist Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, or special damages or lost profits, even if The Rootist or the other The Rootist Parties have been advised of the possibility of such damages.
(b) The total liability of The Rootist and the other The Rootist Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $50 or the amount paid by you to The Rootist for Products in the six months preceding the date on which the first claim giving rise to liability arose.
(c) The limitations set forth in this Section 17 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of The Rootist or the other The Rootist Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release The Rootist and the other The Rootist Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
19 Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND THE ROOTIST TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND THE ROOTIST FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND THE ROOTIST AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. THE ROOTIST AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 19(L), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS AGREEMENT.
(a) Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 19 apply to all Claims between you and The Rootist. A "Claim'" is any dispute, claim, or controversy (excluding those exceptions listed below) between you and The Rootist, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms, the Products, or the Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
(b) Informal Dispute Resolution Prior to Arbitration. If you have a Claim against The Rootist or if The Rootist has a Claim against you, you and The Rootist will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and The Rootist will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, ("Informal Resolution Period") from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice") in accordance with this Terms.
You will send any Claimant Notice to The Rootist by certified mail addressed to The Rootist Inc., Attn: Legal Department, 1111 MacArthur Blvd., Mahwah, New Jersey 07430 or by email to firstname.lastname@example.org. The Rootist will send any Claimant Notice to you by certified mail or email using the contact information you have provided to The Rootist. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or The Rootist cannot proceed to arbitration before the end of the Informal Resolution Period. If you or The Rootist file a Claim in court or proceed to arbitration without complying with the requirements in Section 19, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.
(c) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or The Rootist, including any disputes in which you or The Rootist seek injunctive or other equitable relief for the alleged unlawful use of your or The Rootist’s intellectual property or other infringement of your or The Rootist’s intellectual property rights ("IP Claims"), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 19(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(d) Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation ("NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., ("FAA") and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the "Rules"), as modified by this Agreement.
If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association ("AAA"),** https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a "Consumer," meaning that you only use the Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and The Rootist as modified by this Agreement. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and The Rootist as modified by this Agreement.
This Agreement affects interstate commerce, and the enforceability of this Section 19 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or The Rootist to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
(e) Arbitration Procedure and Location. You or The Rootist may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section 19(d)).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to The Rootist by certified mail addressed to The Rootist Inc., Attn: Legal Department, 1111 MacArthur Blvd., Mahwah, New Jersey 07430 or by email to email@example.com. The Rootist will send any demand for arbitration to you by certified mail or email using the contact information you have provided to The Rootist.
The arbitration will be conducted by a single arbitrator in the English language. You and The Rootist both agree that the arbitrator will be bound by these Terms.
For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Mahwah, New Jersey, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and The Rootist agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
(f) Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
(h) Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made. The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.
(i) One Year to Assert Claims. To the extent permitted by law, any Claim by you or The Rootist against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or The Rootist will no longer have the right to assert that Claim.
(j) Confidentiality. If you or The Rootist submits a Claim to arbitration, you and The Rootist agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and The Rootist agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
(k) Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms. You or The Rootist may advise the other of your or The Rootist’s belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.
Coordinated Claims may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in Coordinated Claims from the time a compliant Claimant Notice has been received by a party until these Terms permits such Coordinated Claim to be filed in arbitration or court.
Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.
After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 19(k).
A single arbitrator will preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator's fee paid for by The Rootist. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Remaining Claims: If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section 19 apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 20.
If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.
If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
(l) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by emailing firstname.lastname@example.org. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 20.
(m) Rejection of Future Arbitration Changes. You may reject any change we make to Section 19 (except address changes) by sending us notice of your rejection within 30 days of the change via email at email@example.com. Changes to Section 19 may only be rejected as a whole, and you may not reject only certain changes to Section 19. If you reject changes made to Section 19, the most recent version of Section 19 that you have not rejected will continue to apply.
(n) Severability. If any portion of this Section 19 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 19 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 19 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 19 will be enforceable.
20 Governing Law and Venue
Any dispute, claim, or controversy arising from or relating to these Terms, the Products, or the Service will be governed by and construed and enforced in accordance with the laws of the State of New Jersey, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute, claim, or controversy arising from or relating to these Terms, the Products, or the Service that is not subject to arbitration pursuant to Section 19 and that cannot be heard in small claims court will be resolved exclusively in the state courts located in Bergen County, New Jersey or the and federal courts located in the Newark, New Jersey. You and The Rootist waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section will not apply to you to the extent that local law conflicts with this section.
21 Modifying and Terminating Our Services
We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by The Rootist in writing. You also have the right to stop using our Services at any time. You may terminate these Terms by closing any account you have with us and ceasing use of our Services. The parties’ respective rights and obligations under Sections 4(b), 6, 7, 10 (first two sentence, and last sentence only), and 11-23 of these Terms, together with all other provisions that may reasonably be construed to survive, will survive the expiration or termination of these Terms for any reason. We are not responsible for any loss or harm related to your inability to access or use our Services.
Except as stated in Section 19(n), if any portion of these Terms is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
23 Export Control
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
(a) The Rootist’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically. We may assign the Terms, in whole or in part, with or without notice to you. You can’t assign your rights or obligations under the Terms, and any attempted assignment in violation of this sentence will be is void.
(b) If you have a question or complaint regarding the Products or Services, please send an email to firstname.lastname@example.org. You may also contact us by writing to 1111 MacArthur Blvd., Mahwah, New Jersey 07430. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.