Terms of Use

Ash Wellness, Inc.

Welcome to Ash!  Ash is a Sexual Health and Wellness platform, available through our website at www.meetash.com and its subdomains (together with any mobile application that we may from time to time make available, “Website”) that provides sexual health and wellness services and products.

These Terms of Use apply to our Website and all services made available through our Website, as well as any offline services that we may provide to You (collectively, including our Website, “Services”). These Terms of Use are a legal agreement between you (“You” or “Your”) and Ash Wellness, Inc. (“Ash” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use our Services.  The date You first agree to these Terms of Use is referred to herein as the “Effective Date”.  Your use of our Services is also subject to our Privacy Policy available on our Website at https://www.meetash.com/privacy-policy as such Privacy Policy may be updated from time to time.  You acknowledge and agree that features and functionality of our Services are expected to change frequently.

BEFORE YOU ACCESS OUR WEBSITE OR USE ANY OF OUR SERVICES, CAREFULLY READ THESE TERMS OF USE. BY ACCESSING OUR WEBSITE OR USING ANY OF OUR SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF USE.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, THEN DO NOT ACCESS OR USE OUR WEBSITE OR SERVICES.

FURTHER, THESE TERMS OF USE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND Ash ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 10 “AGREEMENT TO ARBITRATE”).

1. GENERAL; OUR SERVICES.

1.1 Access and Use.  Subject to the terms and conditions of these Terms of Use, Ash hereby grants to You a limited, non-exclusive, non-transferable right to access and use our Services, including our Website, solely for Your personal use and not for the benefit of any other person or entity.

1.2 Restrictions.  You shall not, directly or indirectly, and You shall not permit any third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of our Services; (ii) modify, translate, or create derivative works based on any element of our Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use our Services; (iv) use our Services for any purpose other than its intended purpose; (v) interfere with or disrupt the integrity or performance of our Services; or (vi) attempt to gain unauthorized access to our Services.

1.3 We Do Not Provide Medical Advice or Diagnosis.  The information, whether text, data, charts, and other materials available through our Services (together with Your Testing Data, “Content”) are for your informational purposes only.  Ash does not provide, and our Website and other Services do not include or provide, professional medical advice, or diagnosis or treatment of any medical or other health conditions.  You must consult with Your physician or other qualified health provider with any questions You may have regarding a medical or other health condition.  Do not disregard professional medical advice due to any of the Content available through our Services, including without limitation any test results You may receive.   Reliance on any of the Content available through our Services, including without limitation any test results, is solely at your own risk.

2. THIRD PARTY SERVICES, DATA AND YOUR CONTENT.

2.1 Integration with Third Party Laboratory Service Providers.  Our Services are designed to make certain laboratory testing services, including without limitation laboratory testing of chlamydia and gonorrhea (collectively, “Testing Services”), available from certain of our third party service providers (each, a “Laboratory Service Provider”).  You understand that Ash does not perform any Testing Services, and that any Testing Services we may make available through our Services are performed by one or more Laboratory Service Providers.  While we may contractually require our Laboratory Service Providers to, among other things, perform the Testing Services in a manner consistent with the degree of care, skill and diligence ordinarily exercised by such a professional laboratory under similar conditions and circumstances, You understand and agree that, subject to applicable law, we are not responsible for any act or omission of any Laboratory Service Provider, including without limitation any failure of any Laboratory Service Provider to perform the Testing Services or deliver accurate or complete testing results.  Notwithstanding the foregoing, if You have a concern regarding the performance of a Laboratory Service Provider or the accuracy or completeness of your test results, You may contact us at support@meetash.com.  You understand that we may change one or more of our Laboratory Service Providers at any time.  In the event that You have purchased a Testing Kit with instructions to send your completed Testing Kit to a Laboratory Service Provider, we will provide advance notice to You of any change in such Laboratory Service Provider and, subject to the limitations set forth in these Terms of Use, will send You an updated Testing Kit if necessary to facilitate the change.  You understand that the applicable Laboratory Service Provider will be responsible for all reporting requirements to appropriate healthcare or governmental authorities related to requested and performed tests and test results as may be required by applicable law or regulation, which may require reporting of certain of Your Content and Your Testing Data to such appropriate healthcare or governmental authorities.

2.2 Decision to Use Testing Services.  You have sole discretion over whether to use any Testing Services.  You may wish to consult with your physician or other qualified medical provider regarding whether Testing Services are right for you. You acknowledge that the results of any Testing Services may provide negative or inconclusive information regarding your health, and that the Testing Services, including any laboratory testing of chlamydia and gonorrhea, are subject to false-negative and false-positive rates.  Accordingly, if You have a concern about your results, you may wish to complete one or more additional tests.  In addition to our Laboratory Service Providers, You may need or want to obtain other services from third parties to fully understand or address Your Testing Data.

2.3 Submission of Your Content.  In order to use our Services, You may be required to provide certain information, including without limitation your name, date of birth, address, sexual activity history, type of genitalia and certain other information, some of which may include health information (collectively, “Your Information”), as well as certain body, fluid or tissue samples for purposes of laboratory testing (“Your Samples” and, together with Your Information, collectively, “Your Content”).  You are responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Content.  By providing any of Your Content, You represent, warrant and covenant that You have the right to provide Your Content for the purposes set forth in these Terms of Use.  You are solely responsible for Your Content that You submit, use, display or share on or via our Services.  You must not submit, upload, post, display or share any of Your Content that You do not have the right to copy, use or share for the purpose of your use of our Services.  If You choose to provide Your Content to use, register for or participate in a service, event, or promotion on our Services, You agree that You will provide accurate, complete, and up to date information as requested on the screens that collect information from you. In addition, we may from time to time allow You to purchase Testing Kits for and otherwise use our Services on behalf of another individual (“Your Friend”).  In the event that You are using our Services on behalf of Your Friend, You represent, warrant and covenant that You have sufficient authorization to use our Services on behalf of Your Friend, including without limitation authorization to provide Your Content on behalf of Your Friend.  In the case where You are submitting a body, fluid or tissue sample on behalf of Your Friend, You must submit Your Content that identifies Your Friend accurately, so that we or our Laboratory Service Providers may comply with applicable law or regulation regarding submission of results to healthcare or governmental authorities for Your Friend.

2.4 Sharing of Your Content and Your Testing Data.  You hereby authorize Ash to provide Your Content to any Laboratory Service Provider for the sole purpose of performing your Testing Services.  You further authorize Ash to receive all data that result from your Testing Services (“Your Testing Data”) and hereby authorize Ash to direct the applicable Laboratory Service Provider(s) to provide to Ash Your Testing Data as requested by Ash from time to time.  You agree to assist Ash in obtaining Your Testing Data from the applicable Laboratory Service Provider(s) upon our request from time to time.  We agree to contractually bind or request our Laboratory Service Providers to dispose of any of Your Samples promptly after completing the testing thereof.

3. WEBSITE.

3.1 Account Registration; Login Credentials.  Ash may require You to register for an account or establish a username and password for access and use of our Website and certain other Services.  You are responsible for maintaining the confidentiality and security of all such login credentials.  You are solely responsible for any and all access and use of our Services that occurs under Your login credentials.  You agree to immediately notify Ash of any unauthorized use of, or access to, Your login credentials.  You understand that You may be required to register for an account in order to use any Testing Kit You purchase, and that such registration may require You to confirm the identity of the individual using the Testing Kit (such additional information to be considered part of Your Content).

3.2 Your Standards of Conduct.  By accessing our Services, including our Website or any chat room, online discussion forum, or other service provided through our Services, You agree to abide by the following standards of conduct.  You agree that You will not, and will not authorize or facilitate any attempt by another person to use our Services or any related chat room or online discussion forum to:

(a) Transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Ash;

(b) Submit Your Content You know is false, misleading, untruthful, or inaccurate;

(c) Engage in commercial activities on our Services or using our Services;

(d) Promote a business or other commercial venture or event, or otherwise use our Services for commercial purposes, except as expressly permitted by Ash;

(e) Use a name or language that Ash, in its sole discretion, deems offensive;

(f) Post defamatory statements;

(g) Post Your Content that is hateful or racially or ethnically objectionable;

(h) Post Your Content which infringes another’s copyright, trademark or trade secret;

(i) Post unsolicited advertising or unlawfully promote products or services;

(j) Harass, threaten or intentionally embarrass or cause distress to another person or entity;

(k) Impersonate another person;

(l) Promote, solicit, or participate in any multi-level marketing or pyramid schemes;

(m) Exploit children under 18 years of age;

(n) Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum, if any;

(o) Introduce viruses, worms, Trojan horses and/or harmful code to our Website;

(p) Obtain unauthorized access to any computer system through our Website;

(q) Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);

(r) Solicit personal information from children under 13 years of age;

(s) Violate any federal, state, local, or international law or regulation; or

(t) Encourage conduct that would constitute a criminal or civil offense.

3.3 Disclaimer; Remedies for Violations of Your Standards of Conduct.  Ash is not responsible for any content posted by any other user or third party to a public forum on Website or other Services.  In the event Ash makes available any public forum through our Website or other Services, Ash reserves the right to (i) record all communications in such forum, (ii) investigate any allegation of violations of the standards set forth in these Terms of Use, (iii) monitor, edit or remove any communications as contemplated in Section 3.2 above, or (iv) terminate a user’s access to such forum.

3.4 Security.  You shall not circumvent or otherwise interfere with any user authentication or security of our Services.  Ash will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Your Content and Your Testing Data stored by Ash in connection with Your use of our Services.  Ash will exercise reasonable efforts to deploy corrections within our Website for security breaches made known to Ash. You acknowledge that, notwithstanding the security precautions deployed by Ash, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to our Website, Your Content and Your Testing Results.  Ash cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.

4. PURCHASES; SHIPMENTS; FEES and payment.

4.1 General.  You may use our Services to purchase certain self-testing kits (“Testing Kits”) and such other products and services as we may from time to time make available (collectively, excluding Testing Kits, “Products”).

4.2 Testing Kits.  You acknowledge that, in order to use any Testing Kit You purchase, You may be required to register an account, properly package Your Samples and ship Your completed Testing Kit to a designated Laboratory Service Provider.  You agree to follow any shipping instructions that we may provide to You from time to time, including without limitation placing Your Samples into an appropriate biohazard bag, which may be provided by us in our discretion.  We are not responsible for any damage to Your Testing Kit, including Your Samples, resulting from Your failure to properly package Your Samples or otherwise comply with our shipping instructions.  You understand that each Testing Kit may be subject to an expiration date, and that You will be required to ship such Testing Kit to the designated Laboratory Service Provider prior to such expiration date in order to use such Testing Kit.   In the event that the Laboratory Service Provider is unable to use Your Samples to perform the Testing Services for any reason other than Your failure to comply with the shipping or other instructions provided to You or expiration of the Testing Kit, we will send You one (1) replacement Testing Kit at no additional cost to You.  You will be responsible for the fees associated with any subsequent Testing Kits. You understand that any claim we may make on our Website or otherwise regarding the time required for performance of the Testing Services is an estimate only, and that we are not responsible for any delay in testing.

4.3 Orders; Cancellation.  You agree that Your order to purchase our Testing Kits or Products is an offer from You to buy all products or services listed in Your order.  After You place an order with us, we will either accept or reject the order.  We are only obligated to fulfill Your order if we accept it.  We will use reasonable efforts to accommodate a request to cancel an order, as long as Your request is received at least three (3) days prior to shipment.

4.4 Shipments; Title and Risk of Loss.  Testing Kits or Products will be shipped to the address You designate as the shipping address.  Shipping restrictions may apply. You agree to pay all shipping and handling charges set forth on our Website during the ordering process. Ash is not be liable for packages refused or held for delivery. Please note that refunds will not be issued for any order that is refused or abandoned by the intended recipient or any order that cannot be delivered due to an address error. Title and risk of loss pass to You upon our transfer of the Testing Kits or Products to our carrier.  Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

4.5 Subscriptions.  We may allow You to subscribe to automated, periodic purchases of certain Testing Kits or Products (“Subscription”) at such fees as may be set forth on our Website from time to time (“Subscription Fees”). Upon registering for a Subscription, You agree to the Subscription terms set forth on our Website in addition to these Terms of Use and we will use commercially reasonable efforts to provide you with the Testing Kits or Products subject to Your Subscription at the frequency indicated by Your Subscription.   You will be billed in advance on a periodic basis for the Subscription Fees for such Services, at the frequency of the Subscription that You sign up for. Ash may change the Subscription Fees in its sole discretion at any time and will provide You notice of any such change.  Subject to such limitations as may be set forth on our Website, You may cancel a Subscription at any time.

4.6 Payment Terms.  You shall be billed in advance of receiving any Testing Kits or Products.  We may use a third party payment service to bill You through an online account for fees in lieu of directly processing your credit card information.  By submitting Your payment account information, You grant us the right to store and process Your information with the third party payment service, which may change from time to time; You agree that we will not be responsible for any failures of the third party to adequately protect such information.  The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to these Terms of Use. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using transport layer security (TLS) or other comparable security technology. We may also provide certain Services to You at no charge in some instances.   Ash may commence charging fees for any free Services at any time; provided that You will not be obligated to subscribe to any such Services.

4.7 Taxes.  You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Ash’s net income) with respect to Services purchased by You.  All payments under these Terms of Use shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to these Terms of Use that applicable law requires You to withhold.

5. DISCLAIMERS.

5.1 Warranty Disclaimer. OUR WEBSITE AND OTHER SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS.  YOUR USE OF OUR WEBSITE AND OTHER SERVICES IS AT ITS OWN RISK.  Ash DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Ash DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA ENTERED INTO OR SAVED IN OUR WEBSITE.

5.2 Third Party Product Descriptions and Links.

(a) Third Party Products.  We do not currently sell third-party products or Services through our Website, but may do so in the future.  We may, however, provide certain information or descriptions about products (collectively, “Product Descriptions”) that we prepare or that we obtain from independent third parties, such as from Laboratory Service Providers or other third party vendors.  We do not warrant that Product Descriptions or any prices that are referenced are accurate, complete, reliable, current or error-free.  You agree that Ash is not liable in any way for the accuracy, completeness, timeliness or correct sequencing of the Product Descriptions or other Ash Content, or for any decision made or action taken by You relying upon the Product Descriptions or other Ash Content.

(b) Laboratory Service Provider Certifications.  While we may use good faith efforts to confirm that our Laboratory Service Providers are certified by the Clinical Laboratory Improvement Amendment (“CLIA”) and accredited by the College of American Pathology (“CAP”), we cannot ensure and do not guarantee that any Laboratory Service Provider is or will remain certified by CLIA or accredited by CAP.  We do not warrant that any claim made on our Website regarding any Laboratory Service Provider, including any claim related to any CLIA or CAP certification, is accurate, complete, reliable, current or error-free.

(c) Links to Third Party Sites.  External links on our Services may lead to other websites, including advertised products sold by outside vendors and companies.  We are not liable for the content, goods, services, advertising, or other materials found on these external websites.  Although we may display ads and have an affiliate referral relationship with third parties, we do not own or control outside companies selling products accessed through our Services, and are not responsible or liable for their company policies or the quality of their merchandise or services.  Before buying anything, users are advised to carefully investigate the individual company policies of all online purchases that they intend to make.  From time to time, Ash may be a participant in certain affiliate advertising programs designed to provide a means for websites to earn advertising fees by advertising and linking to certain third parties.  Any logo of any third party used on our Website or other portion of our Services is a trademark of such third party or its affiliates.

(d) No Third Party Endorsements.  In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Ash of that third party or of any product or service provided by a third party.  Likewise, a link (including without limitation external websites that are framed by our Services as well as any advertisements displayed in connection therewith) to any third party website does not imply that we endorse or accept any responsibility for the content or use of such a website.  Ash does not warrant the performance of any Laboratory Service Provider or other third party.

6. PROPRIETARY RIGHTS.

6.1 Ownership. We acknowledge that, as between You and Ash, You are the sole and exclusive owner of Your Testing Data and Your Content.  You acknowledge that our Website and other content available through our Services (other than Your Content and Your Testing Data), and all intellectual property rights therein, are the sole and exclusive property of Ash and its licensors.  The service marks and trademarks of Ash, including without limitation “Ash” and the Ash logo, are service marks owned by Ash Wellness, Inc.  Any other trademarks, service marks, logos and/or trade names appearing via our Services are the property of their respective owners.  You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.

6.2 License to Your Content and Your Testing Data.  You grant to Ash a royalty-free, nonexclusive, irrevocable, limited right and license to use the Your Content and Your Testing Data (a) in order to provide our Services; (b) to analyze and improve our Website and any other portion of our Services; and/or (c) to compile and use aggregate or de-identified data, statistics, measurements or other metrics derived from Your Content and Your Testing Data (including in combination with the aggregate or de-identified customer data of other Ash customers) for its own purposes.  Aggregate or de-identified data means data that does not identify You or any other individual.

6.3 Disclosure of Your Content.  Ash shall not disclose Your Content to third parties, except as permitted under these Terms of Use or under the Privacy Policy.

6.4 Limited Feedback License.  You hereby grant to Ash, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license in and to suggestions, comments and other forms of feedback (“Feedback”) regarding our Website or other Services, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in our Services or any other products or services.  Feedback is provided by You “as is” without warranty of any kind by You.

6.5 Copyright Infringement; Notice and Take Down Procedures.

If You believe that any content on our Services infringes your copyright, You may request that such content be removed.  This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information:

(a) identification of the copyrighted work that You believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work;

(b) identification of the content that You believe to be infringing and its location, including a description of the content, and its Website location or other pertinent information that will help Ash to locate such content;

(c) your name, address, telephone number and email address;

(d) a statement that You have a good faith belief that the complained of use of the material is not authorized by the copyright owner, its agent, or the law;

(e) statement that the information in your claim is accurate; and

(f) a statement that “under penalty of perjury,” You declare that You are the lawful copyright owner or are authorized to act on the owner’s behalf.

Ash’s agent for copyright issues relating to our Services is copyright@meetash.com, or Ash Wellness, Inc., 11 E Loop Road, Suite 381, New York, NY 10044, phone 646-867-2949.  In an effort to protect the rights of copyright owners, Ash maintains a policy for the termination, in appropriate circumstances, of users of our Services who are repeat infringers.

7. Indemnification.

By using our Services, You agree to indemnify, hold harmless and defend Ash and its officers, directors, employees and suppliers from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with your use of our Services and/or Your Content or Your Testing Data.

8. Limitation of Liability.

8.1 No Consequential Damages.  ASH SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE  WEBSITE OR OTHER SERVICES, OR RESULTS THEREOF.  Ash WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

8.2 Limits on Liability.  ASH SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO ASH UNDER THESE TERMS OF USE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY ASH TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS OF USE.

8.3 Essential Purpose.  You acknowledge that the terms in this Section 8.3 are an essential basis of the bargain described in these Terms of Use and that, were Ash to assume any further liability, the fees payable hereunder would out of necessity, be set much higher.  THE LIMITATIONS IN THIS SECTION 8.3 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

9. TERM AND TERMINATION.

9.1 Term.  The term of these Terms of Use shall commence on the Effective Date and continue unless and until terminated as provided in these Terms of Use.

9.2 Termination.  Ash reserves the right to terminate these Terms of Use for any or no reason in its sole discretion at any time[; provided that, in the event of termination of fee-bearing Services without cause, Ash will provide a pro-rata refund to You of any pre-paid fees.]

9.3 Effects of Termination.  Upon expiration or termination of these Terms of Use, Your use of and access to our Services, and Your right to access and use our Website, shall cease and Ash shall have no obligation to maintain or provide any Your Content or Your Testing Data and may in our discretion, unless legally prohibited, delete all Your Content and Your Testing Data in our systems or otherwise in our possession or under its control.

10. AGREEMENT TO ARBITRATE.

10.1 Arbitration.  You agree that all disputes between You and Ash (whether or not such dispute involves a third party) arising out of or relating to these Terms of Use, our Website, other Services, and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in New York City, State of New York, USA, in each case under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and Ash hereby expressly waive trial by jury. You and Ash shall appoint as sole arbitrator a person mutually agreed by You and Ash or, if You and Ash cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party.  Each party shall equally bear the costs of the arbitration, except that, if You are an individual Policyholder (not a corporate or similar entity), Ash will bear the reasonable cost of the arbitrator and the AAA; in any event, each party will bear the cost of their own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or Ash shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms of Use (including without limitation Section 8 above) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

10.2 Term for Cause of Action; Waiver of Class Actions.  You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to our Services or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or shall be forever barred.  Any claims brought by You or Ash must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor Ash will participate in a class action or class-wide arbitration for any claims covered by these Terms of Use. You hereby waive any and all rights to bring any claims related to these Terms of Use and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.

10.3 Opt Out.  You may opt out of this agreement to arbitrate in this Section 10.  If You do so, neither You nor we can require the other to participate in an arbitration proceeding.  To opt out, You must notify us in writing within thirty (30) days of the date that You first became subject to this arbitration provision.  The opt out notice must state that You do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your login credentials to which the opt out applies, if any, and a clear statement that You want to opt out of this agreement to arbitrate.  You must sign the opt out notice for it to be effective.  This procedure is the only way You can opt out of the Agreement to Arbitrate.  You must use this address to opt out: Ash Wellness, Inc., ATTN: Arbitration Opt-out, 11 E Loop Road, Suite 381, New York, NY 10044.

10.4 Survival.  This Arbitration section will survive the termination of Your relationship with Ash.

11. Miscellaneous.

11.1 Entire Agreement.  These Terms of Use, together with any supplemental terms expressly agreed by the parties through our Website concurrently herewith or subsequent hereto, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

11.2 Changes to these Terms of Use; Waiver.  These Terms of Use may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by You; provided that these Terms of Use as applicable to users of our Website may be unilaterally amended by Ash by posting of such updated Terms of Use on our Website and shall be effective from and after such posting.  No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

11.3 Severability.  If any provision of these Terms of Use is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

11.4 Governing Law.  These Terms of Use and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of New York, USA as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. Subject in all respects to Section 10 hereof, for any disputes arising out of these Terms of Use, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in the State of New York, USA.

11.5 Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms of Use due to fire, explosion, earthquake, epidemic, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms of Use); or any other event beyond the reasonable control of the party whose performance is to be excused.

11.6 Assignment.  You shall not assign its rights or obligations under these Terms of Use, whether voluntarily or by operation of law or otherwise, without Ash’s prior written consent.  Ash may assign its rights or obligations under these Terms of Use without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms of Use will bind and benefit the parties and their successors and permitted assigns.

11.7 Relationship of the Parties.  Ash is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties.  Neither party has the authority to bind the other or to incur any obligation on its behalf.

11.8 Export.  Our Website utilizes software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that our Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Subscription Services, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Our Website may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Ash and its licensors make no representation that our Services are appropriate or available for use in other locations.

11.9 Contact Us.  Please contact us at support@meetash.com if You have any questions about our Website or other Services.

These Terms of Use last updated on July 14, 2020.

Copyright © 2020 Ash Wellness, Inc.