Terms of Service 1

Terms of USE.

PLEASE CAREFULLY READ THESE TERMS OF USE BEFORE USING THIS WEBSITE.

This website (the “Website”) is owned and operated by Alchemee LLC, a Delaware limited liability company. These Terms of Use, the Company’s Privacy Policy, and any amendments or supplements to it, (the “Agreement”) form a legally binding agreement between you and the Company. This Agreement governs your access to and use of the Website, (collectively, “Your Use”).

Your Use of the Website shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE.

THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED IN SECTION 12) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 12 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT REQUIRES INDIVIDUAL ARBITRATION INSTEAD OF JURY TRIALS AND CLASS ACTIONS.

TABLE OF CONTENTS

1. Eligibility

2. User Conduct

3. Protection of Intellectual Property Rights and License

4. Disclaimer Regarding Information Provided on the Website

5. Disclaimer of Warranties With Respect to Use of the Website

6. Links to Other Websites That Company Does Not Control

7. Electronic Communications, Signatures and Agreements

8. Communications with Company

9. Limitation on Company’s Liability

10. Indemnification

11. Termination of Website

12. Agreement to Resolve Disputes by Arbitration

Generally
Exceptions to this Arbitration Agreement.
Waiver of Class and Representative Procedures.
Mandatory Pre-Dispute Procedures.
Commencement of Arbitration.
Arbitration Location
Sponsoring Organization, Rules and the Arbitrator.
Arbitration Fees
Arbitration Award
Survival and Severability
Miscellaneous
Amendments

13. Exclusive Venue for Other Controversies

14. Remedies for Company

15. Modifications to the Agreement

16. Trademark Notices

17. Copyright Policy

18. Company Code of Conduct

19. Other Important Terms

1. Eligibility

In order to use the Website, you must be (a) 18 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws; or (b) 13 years or older and have your parent or guardian’s consent to the Agreement. The Website is not intended for children under the age of 13 and no person under the age of 13 may use the Website. If you use the Website, you are affirming that you are at least 13 years old.

2. User Conduct

You must only use the Website for lawful purposes, and you must not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Website. You may not without our prior written consent:

(i) copy, reproduce, rent, lease, loan or sell content retrieved from the Website;

(ii) modify, distribute, or re-post any content on the Website for any purpose; or

(iii) use the content of the Website for any commercial exploitation whatsoever.

In using the Website, you further agree:

(a) not to disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or an affiliated or linked Website;

(b) not to disrupt or interfere with any other user’s enjoyment of the Website or affiliated or linked Website;

(c) not to upload, post, or otherwise transmit through or on the Website any viruses or other harmful, disruptive, or destructive files;

(d) not to use, frame, or utilize framing techniques to enclose any Company trademark, logo, or other proprietary information (including the images found on the Website, the content of any text, or the layout/design of any page or form contained on a Website page) without Company’s express written consent;

(e) not to reverse engineer, or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.

(f) not to use meta tags or any other “hidden text” utilizing a Company name, trademark, or product name without Company’s express written consent;

(g) not to deeplink to the Website without Company’s express written consent;

(h) not to create or use a false identity on the Website, share your account information, or allow any person besides yourself to use your account to access the Website;

(i) not to collect or store personal data about others;

(j) not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;

(k) not to post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or is otherwise in violation of any law. You further agree not to post any copyrighted material unless the copyright is owned by you;

(l) to be bound by the product submission policies of Company, if any, including that any product submission you may make to Company will not be held in confidence by Company and is not proprietary, that Company may use the product submission and any aspect thereof for any purposes in Company’s sole discretion and that Company owes no duties or obligations with respect to you or the product submission made; and

(m) to comply with all applicable laws regarding your use of the Website.

3. Protection of Intellectual Property Rights and License

You acknowledge that content available through the Website, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, and content provided by suppliers, sponsors, or third-party advertisers (“Intellectual Property Rights”), is protected by copyright, trademarks, patents, or other proprietary rights and laws. You are hereby granted a non-exclusive, non-transferable, revocable, limited license to view, copy and print content retrieved from the Website for the sole purpose of using a the Website, provided that you do not remove or obscure the copyright notice or other notices displayed on the content. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of Company’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.

4. Disclaimer Regarding Information Provided on the Website

THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE WEBSITE IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION BEFORE STARTING ANY NEW TREATMENT. YOUR USE OF THE WEBSITE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE WEBSITE.

COMPANY AND ITS AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. WHILE COMPANY STRIVES TO KEEP THE INFORMATION ON THE WEBSITE ACCURATE, COMPLETE, AND UP-TO-DATE, COMPANY CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE WEBSITE.

5. Disclaimer of Warranties With Respect to Use of the Website

THE WEBSITE IS PROVIDED ON AN “AS IS”; AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. COMPANY MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

6. Links to Other Websites That Company Does Not Control

The Website may provide links to other websites and/or resources, including advertisers, over which Company has no control. These links are provided solely as a convenience to users and should not be construed as an endorsement by Company of content, items, or services on those third-party websites.

You access, view and use such website links, including the content, items or services on those websites, solely at your own risk. Company makes no representations or warranties with respect to the content, ownership, or legality of any such linked websites. You agree that Company has no responsibility or liability for the availability of such external websites or resources, or for the content, advertising, products, or other materials available through such websites or resources. At the moment when you leave the Website via a link to another website, you will be subject to the Privacy Policy and the Terms of Use of such other website.

7. Electronic Communications, Signatures and Agreements

The information communicated on the Website constitutes an electronic communication. When you communicate with Company through the Website or via other forms of electronic media, such as e-mail, Apps, or social media, you are communicating with Company electronically. You agree that Company may communicate electronically with you and that such communications, as well as notices, disclosures agreements, and other communications that Company provides to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication (e.g., by Company or you).

You further acknowledge and agree that by clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “ACCEPT” or such similar links as may be designated by Company, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement and any hyperlinks contained herein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF SERVICES OFFERED BY COMPANY. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

8. Communications with Company

You acknowledge that telephone calls to or from Company are monitored and recorded and you agree to such monitoring and recording.

You verify that any contact information provided to Company, including, but not limited to, your mailing address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Company. You acknowledge that by voluntarily providing your telephone numbers to Company, you expressly agree to be contacted at the telephone numbers you provide.

You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Company relating to this Agreement, and promotions regarding Company’s products. These communications may be made by or on behalf of Company, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that Company will not be responsible for these charges.

Company may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing address and phone numbers provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide Company notice within 30 days of any change to your contact information by writing to Alchemee Customer Service, 6 Commerce Way, Arden, NC 28704 or by emailing questions@proactiv.com . Your consent to this communications provision is not required to make any purchase with Company.

9. Limitation on Company’s Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL COMPANY, ITS SUPPLIERS, PARENTS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE RESULTING FROM (1) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; (2) THE USE OF, OR THE INABILITY TO USE, ITEMS PURCHASED ON THE WEBSITE; OR (3) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR ITEMS.

10. Indemnification

You agree to indemnify and hold the Released Parties, together with their respective co-branders, and suppliers, harmless from and against any and all liability, losses, claims, demands, disputes, damages, and costs of any kind, including, without limitation, reasonable attorneys’ fees and costs of litigation resulting from or in any way connected with (i) your use of the Website; (ii) information you submit or transmit through the Website; (iii) privacy, tort or other claims (e.g., claims under the Federal Telephone Consumer Protection Act or its state law equivalent) relating to the provision of personal information (e.g., telephone number) to Company that is not owned by you, in contravention of this Agreement; and/or (iv) your breach of this Agreement.

11. Termination of Website

You agree that Company may, in its sole discretion, and at any time, terminate or suspend its operation of the Website or your use of the Website, without prior notice to you, for any reason that Company, in its sole discretion, deems appropriate. You further agree that Company will not be liable to you or to any third party for the consequences of such termination or suspension. In the event of any termination of your use of or access to the Website, you agree that the provisions of the Agreement regarding protection of intellectual property rights and license, indemnification, disclaimer regarding information provided on the website, disclaimer of warranties with respect to use of the website, limitation on Company’s liability, and pre-dispute, mandatory binding arbitration, and class action waiver shall survive any such termination.

12. Agreement to Resolve Disputes By Arbitration

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AND COMPANY AGREE THAT ANY CLAIM THAT YOU OR WE MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, ARE MORE LIMITED.

Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, Company, and/or any involved third party relating to your account, Your Use (defined), your relationship with Company, or these Terms of Use and Conditions of Purchase, and includes all claims that arose or were asserted before, on, or after the effective date of this Agreement. This includes but is not limited to any and all claims or disputes that relate in any way to your use or attempted use of Company products, any act or omission by Company or any third party related to your use or attempted use of Company products, and any claims relating to advertising or representations regarding Company products. You, Company, or any involved third party may pursue a Claim. You and Company agree to binding arbitration to resolve any Claim Company has against you or you have against Company. By agreeing to arbitrate, you and Company waive the right to go to court except as provided below and agree instead to pursue or defend any Claims in binding arbitration. This arbitration provision is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.

Conduct of Arbitration. In any arbitration of a Claim that is subject to the Arbitration Agreement:

1. You or Company may file such dispositive motions as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator shall stay all further action and deadlines in the arbitration until deciding such motion.

2. The arbitrator shall conduct any calls, conferences, or hearings by teleconference or videoconference, unless the arbitrator determines that an in-person hearing is appropriate.

3. The arbitrator will follow these Terms of Use and Conditions of Sale and the law. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party to the arbitration.

4. You or Company may appeal any dispositive decision of an arbitrator if any arbitration award is more than $50,000 by filing a notice of appeal with the AAA within 30 days after an award is rendered and delivered to the parties. The appeal shall be heard by a single arbitrator unless the parties agree to a multi-arbitrator appellate panel. The arbitrator(s) assigned to the appeal shall be selected by agreement of the parties from among those on the AAA Appellate Panel. If the parties are unable to agree, AAA shall appoint the arbitrator(s) from among those on the AAA Appellate Panel. An arbitrator who previously presided over any aspect of a case shall be ineligible from serving as an appellate arbitrator in that same case. The appeal, including briefing, shall be conducted pursuant to the parties’ agreement or the appellate arbitrator(s)’ orders if the parties are unable to agree.

5. Any facts, evidence, documents, or testimony introduced or produced in an arbitration proceeding shall be kept strictly confidential, may be used only in that proceeding, and may not be disclosed, introduced, or used in another arbitration proceeding even if it involves the same or similar claims. At the end of any arbitration proceeding, Company and claimant will destroy or return to the producing party all discovery produced to them in connection with that arbitration proceeding. Any party may seek redress with a court of competent jurisdiction for violations of this paragraph, and the party or entity that violates this paragraph is subject to sanctions or other remedies as ordered by that court, including an award of fees and costs incurred in enforcing this agreement.

6. In light of the streamlined nature of an individual arbitration, the parties agree that no finding or ruling in an individual arbitration (including a bellwether arbitration) shall have any preclusive effect in any other proceeding against Company, any claimant, or any other person or entity, except for a proceeding for the purpose of seeking enforcement of a ruling in that individual arbitration. In addition, the arbitrator will not be bound by rulings in any prior arbitrations not involving the same parties, even if they involved the same or similar Claims.

Exceptions to this Arbitration Agreement.

1. Small Claims. As an exception to this arbitration agreement, you and Company both retain the right to pursue, in a small claims court, any Claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Company will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court, so long as the Claim is pending only in that court. If the Claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the Claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. Any dispute about whether a Claim qualifies for small claims court will be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding will remain closed unless and until the small claims court issues a decision that the Claim should proceed in arbitration.

2. Intellectual Property Disputes. This arbitration agreement does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.

Waiver of Class and Representative Procedures. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other customers. Neither you nor we may seek non-individualized relief that would affect other customers. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular Claim for relief, then that Claim (and only that Claim) must be severed from the arbitration and may be brought in court.

Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Company, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information related to our products, your purchase and use thereof, and any representations upon which any of your Claim(s) rely. You may send the written description by U.S. Mail to Alchemee LLC, 3 Skyline Drive, Hawthorne, NY 10532; Attn: General Counsel. You agree to negotiate with Company in good faith about your problem or dispute and to provide information reasonably necessary for those discussions, including without limitation, the products purchased, date(s) of purchase, and location(s) of purchase. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Company’s receipt of your written dispute, you may commence arbitration in accordance with this agreement.

Commencement of Arbitration. You and Company agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that, to the fullest extent permissible by applicable law, any proceeding commenced after 1 year shall be barred.

Arbitration Location. The arbitration shall be conducted in New York, New York or, if a court or arbitrator determines that the law or American Arbitration Association (“AAA”) rules does not permit the arbitration to be conducted there, within the federal judicial district where you reside. The parties may also agree to an alternative location for the convenience of the parties. Any arbitration hearing may be held by telephone or video conference or through written submissions, if both you and Company agree.

Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from the AAA Judicial Panel and the AAA rules shall apply. The Judicial Panels and AAA rules are located on AAA’s website.

All issues are for the arbitrator to decide, except that issues relating to the scope, enforceability, and interpretation of the arbitration provision and the scope, enforceability, and interpretation of the paragraph addressing the waiver of class and representative procedures are for the court to decide.

Mass Arbitration. The following provisions apply notwithstanding any other provision in this Agreement:

1. To promote efficient handling of arbitration demands, if twenty-five (25) or more demands for arbitration of a Claim subject to the Arbitration Agreement are substantially similar (i.e., involve common questions of fact or law; relate to similar events, transactions, or occurrences; and seek similar relief) and are initiated by claimants represented by the same or coordinated counsel or representatives, then such demands shall be coordinated pursuant to this sub-section. This sub‑section is intended to supplement such provisions for the efficient resolution of mass arbitration demands as may be adopted by the AAA, which provisions shall govern except as specified here.

2. The group of claimants and group of respondents shall each select five (5) demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned by AAA to a different arbitrator. Upon the earlier of (a) the appointment by the AAA of a process arbitrator or (b) the selection of the arbitrators for the Bellwether Demands, no other substantially similar claims shall be initiated in arbitration by claimants represented by the same or coordinated entities as the initial demands, but any such claims shall be tolled as of the date the claimant provides Company a written description in line with Mandatory Pre-Dispute Procedures and, in all events, any such claims may be filed in arbitration two years after the claimant provides Company a written description in line with Mandatory Pre-Dispute Procedures.

3. If the number of remaining demands exceeds 50, the AAA will promptly take steps to: (1) administer the demands in batches of 50 (or, if the remaining demands exceed 250, batches of 100), plus a final batch consisting of any remaining demands; (2) appoint one arbitrator for each batch; (3) consider each batch as a single consolidated arbitration with one set of filing and administrative fees per side, one procedural calendar, one hearing (if any) in a place to be decided by the arbitrator, and one final award (taken together, the “Batch Arbitration” process); and (4) take other steps as necessary for a speedy and efficient resolution of the demands, including conducting multiple batches concurrently.

4. If the parties disagree on whether this sub-section applies, the AAA will appoint an arbitrator with experience in mass arbitrations to decide that issue, whose fees will be paid by Company and who may prescribe procedures needed to resolve the disagreement. This sub-section does not authorize a class, collective, consolidated, joint, or mass arbitration or action other than as set forth in this section.

5. If a court or arbitrator decides that applicable law precludes enforcement of any of this section’s limitations, then such Claims (and only such Claims) shall be brought in court.

6. Company or any individual claimant may opt out of arbitration proceedings as to any case that (i) has not already been selected for individual bellwether arbitration proceeding if the number of unresolved, similar cases in a coordinated arbitration proceeding exceeds 500; (ii) remains unresolved two years after commencing arbitration or (iii) an arbitrator has found would be unreasonably delayed by the mass arbitration process outlined in this Agreement. To opt out, the Company or claimant must notify the other party and, if a claim has been filed in arbitration, the party who made the claim must withdraw it. After notice is provided and any claim has been withdrawn, the Company or individual may then pursue the claim in court. The process arbitrator shall resolve any disputes related to this opt-out provision, shall dismiss without prejudice any case covered by this provision that the noticing party fails to withdraw, and may require any noticing party who unreasonably fails to withdraw its case under this provision to pay the opposing party reasonable fees and costs.

Process Arbitrator. The parties agree that any process arbitrator may decide threshold procedural and substantive issues that are common to all claimants, a batch of claimants, or a substantial set of claimants, including without limitation those related to statute of limitations, federal preemption, the pre-dispute procedures set forth herein, arbitrability, discovery, and contract formation and scope.

Arbitration Fees. If (i) you fully abide by these term; (ii) you fully participate in the arbitration proceeding and (iii) the arbitrator does not find that your claim was filed for purposes of harassment or is frivolous, then the Company will, at the conclusion of the arbitration, reimburse any filing fee that you have paid to AAA to the extent the fee exceeds the fee for filing a complaint in a federal or state court in your county, and will also reimburse any administrative and arbitrator fees charged by the arbitration tribunal. Unless applicable law or these Terms of Use and Conditions of Sale provides otherwise, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.

Fee and Cost Shifting. The arbitrator may award costs or fees to a prevailing party, but only if applicable law allows it. Although the Company may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, Company agrees that it will not seek such an award. Notwithstanding the previous sentence, Company will seek and the arbitrator shall award the Company costs and fees (to the extent permissible by law) if the arbitrator determines that any of your Claims are frivolous or were brought for the purpose of harassment.

Survival and Severability. This provision survives termination of your account or relationship with Company, bankruptcy, assignment or transfer. Except as provided otherwise in the “waiver of class and representative procedures” and “mass arbitration” provisions, if a portion of this arbitration provision is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

Miscellaneous. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Company and shall not be modified except in writing by Company.

Amendments. Company reserves the right to amend this arbitration provision at any time. Your continued use of the Company Website, purchase of a Company Product, or use or attempted use of a Company Product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Company will provide you 30 days’ notice on its website and, for customers with a subscription, by sending via email a notification of the changes listing a website address to the updated Terms & Conditions. It is your responsibility to monitor the website and your email for such notice. Company will also provide a renewed opportunity to opt out of the arbitration, which will follow the procedures in bold below. Any opt-out on notification of change to the arbitration provisions shall apply only to Your Use in the future and not to Your Use in the past. Any opt-out applies to the entire arbitration provision, not only to the amendments. Your continued use of any Company Website, purchase of a Company Product, use or attempted use of a Company Product, or maintenance of a product subscription is affirmation of your consent to such material changes.

THIS ARBITRATION PROVISION SHALL TAKE EFFECT IMMEDIATELY. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF INITIAL PURCHASE, USE, OR ATTEMPTED USE OF ACOMPANY PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO ALCHEMEE LLC, 3 SKYLINE DRIVE, HAWTHORNE, NY 10532; ATTN: GENERAL COUNSEL. FOR YOUR OPT OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY COMPANY PRODUCT YOU PURCHASED, USED, OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED, OR ATTEMPTED TO USE A COMPANY PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.

13. Exclusive Venue for Other Controversies

You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the New York County Supreme Court, New York, or the United States District Court for the Southern District of New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.

14. Remedies for Company

In order to avoid irreparable injury to Company, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Company from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.

15. Modifications to the Agreement

Company may make changes to these Terms of Use, from time to time, in its sole discretion, by updating this posting on the Website without notice to you. Your continued use of the Website following the posting of a new version of the Terms of Use constitutes your acceptance of any such changes. Accordingly, whenever you visit the Website, check to see if a new version has been posted.

16. Trademark Notices

Alchemee, Proactiv®, Proactiv+® and ProactivMD®, Restorative Elements™, In Defense of Skin™ are trademarks of Taro Pharmaceuticals USA Inc. All other trademarks and service marks displayed on the Website are the property of Taro Pharmaceuticals USA Inc. or their respective owners. You may not use or display any trademarks or service marks owned by Taro Pharmaceuticals USA Inc. without Taro Pharmaceuticals USA Inc.’s prior written consent. You may not use or display any other trademarks or service marks displayed on the Website without the permission of their owners.

17. Copyright Policy, Digital Millennium Copyright Act

It is Company’s policy to respect the copyright and intellectual property rights of others. Company may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Company complies with the Digital Millennium Copyright Act. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Company’s Copyright Agent the following information:

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

2. A description of the copyrighted work that you claim has been infringed.

3. A description of where the material that you claim is infringing is located on the Website.

4. Your address, telephone number, and e-mail address.

5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.

6. A statement by you, made under penalty of perjury (e.g., notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf as follows: “I have a good faith belief that use of the copyrighted material described above is not authorized by the copyright owner or its agent, nor is such use otherwise permissible under law. I declare, under penalty of perjury, that the information presented herein is accurate, that I am authorized to represent the copyright holder, and I have a good faith belief that the use is infringing.”

Please direct inquiries regarding infringement issues by email to DMCA@proactiv.com

18. Company Code of Conduct

Company aspires to protect its brands and bring quality products and exceptional consumer experience to its customers. One way we seek to accomplish such continuous improvement is to ensure fair and ethical workplace standards in our supply chain.

19. Other Important Terms

Company may assign, transfer, or sub-contract any of our rights or obligations under these Terms of Use to any third party at our discretion. Any representations, warranties, and indemnification obligations made or undertaken by you will survive cancellation or termination of your account or relationship with Company. No delay by Company in exercising any right or remedy under these Terms of Use shall operate as a waiver of that right or remedy or shall affect Company’s ability to subsequently exercise that right or remedy. Any waiver must be agreed to by Company in writing. These Terms of Use supersede any other terms previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise.