TERMS & CONDITIONS

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.

Subject to the limitations set forth herein, you may upload any photographs, comments, video clips, reviews and other communications and content to the Website (“Your Content”). You will retain your ownership interest in all Your Content or files provided by you to Company via the Website, social media postings, forums, uploads, postings, and/or by email, mobile apps, text messaging, mail, or otherwise, including any text, photos, artwork, videos, or audio clips contained in Your Content. By posting or submitting Your Content to Company, you(or if a minor, your parent or legal guardian) hereby grant Company and its agents, affiliates, successors and assigns, a universal, non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, edit, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display Your Content and the name submitted in connection with Your Content, throughout the world in any and all media now known or hereafter conceived. Company and its affiliates are free to use any ideas, concepts or know-how contained in Your Content for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products using such information.

You represent and warrant that (a) you own or otherwise control all of the rights to Your Content; (b) Your Content is accurate; (c) use of Your Content does not violate this Agreement and does not violate the privacy rights, publicity rights, trademarks rights, copyright interests, contract rights or any other rights of any person or entity and will not cause injury to any person or entity; and (d) by providing Your Content to the Company, you (or if a minor, your parent or legal guardian) and your heirs, successors and assigns, hereby discharge and release, and agree to indemnify and hold harmless, Company and its parent entities, subsidiaries, affiliates, agents, representatives, successors and assigns, and their respective members, shareholders, directors, officers, employees, agents, representatives, successors and assigns (collectively, the “Released Parties”), from any action or liability of any kind and all damages relating thereto, in any form or manner, arising from any infringement of any third party’s rights, inclusive of attorneys’ fees and costs, in connection with Your Content. You will not post commercial advertisements, “spam,” or other solicitations in any manner relating to other websites, products, or services. Company has the right, but not the obligation, to monitor and edit or remove any activity or content. Company takes no responsibility and assumes no liability for Your Content or for any of Your Content posted by a third party.

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:

1. copy, reproduce, rent, lease, loan or sell content retrieved from the Website;
2. modify, distribute, or re-post any content on the Website for any purpose; or
3. use the content of the Website for any commercial exploitation whatsoever.

In using the Website, you further agree:

1. 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;
2. not to disrupt or interfere with any other user's enjoyment of the Website or affiliated or linked Website;
3. not to upload, post, or otherwise transmit through or on the Website any viruses or other harmful, disruptive, or destructive files;
4. 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;
5. not to reverse engineer, or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.
6. not to use meta tags or any other "hidden text" utilizing a Company name, trademark, or product name without Company’s express written consent;
7. not to deeplink to the Website without Company's express written consent;
8. 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;
9. not to collect or store personal data about others;
10. not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
11. 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;
12. 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
13. to comply with all applicable laws regarding your use of the Website.

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 or placing an order via 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.

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.

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.

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.

Product Representations. Company reserves the right, without prior notice, to discontinue or change specifications and prices on products without incurring any obligation to you. Company takes reasonable precautions to try to ensure that the prices quoted on the Website are correct, and to describe the items available on the Website as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that Company does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Website will match the actual product that you receive. If a product described on the Website is not as described when you receive it, or the packaging on the Website does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy, which is listed on the Website under Customer Service. Company’s descriptions of, or references to, products not owned by Company do not imply endorsement of that product, or constitute a warranty by Company.

Pricing Errors and Omissions. Please be aware that prices, availability and other purchase terms are subject to change without prior notice. We make every effort to ensure the accuracy of the information on the Website and to correct errors once discovered. Company reserves the right to revoke any stated offer to correct any errors, inaccuracies, or omissions, including after an order has been submitted, after it has been confirmed, or after your credit card has been charged. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.

Order Placement and Acceptance. If you order a product, payment must be received by Company prior to Company’s acceptance of the order. Company may require additional information regarding your order if you have not provided all of the information required, and may cancel or limit an order any time after it has been placed.

Your order is expressly conditioned on acceptance of this Agreement. Once a properly completed order, your authorization and a form of payment has been received, we will promptly locate the item(s) you have ordered to place them in line for shipment. All items are subject to availability. We will promptly inform you if the product(s) you have ordered are not available and we may offer you alternative product(s) of equal quality and value.

Company does not accept orders from dealers, wholesalers, or customers who intend to resell items offered on the Website. If Company discovers that you are placing orders with the intent to resell items offered on the Website, we will immediately cancel your order, suspend or terminate your account, and pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, Company reserves the right to report you to federal, state and/or local enforcements authorities.

Shipping and Risk of Loss. Company will add applicable shipping and handling fees to your order. Unless otherwise noted, Company will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although Company may provide delivery or shipment timeframes or dates, you understand that those are Company’s good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. If your order will be delayed (either from the date specified at the time of order or, if no date was specified, beyond 30 days from the date of your order). Company will use reasonable good faith efforts to contact you. If Company cannot contact you or you no longer wish to receive the item, Company will cancel the order and promptly refund the amount tendered, and will do so within 7 business days if made using third-party credit card, such as a Visa or MasterCard. Company shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery. All items purchased from the Website are delivered to shipment carriers. The risk of loss and title for such items pass to you upon our delivery to the carrier. Company may reject orders where the stated delivery address is outside the United States.

Sales Tax. In the United States, Company is required to collect applicable state and local sales tax on orders shipped to certain states. Taxes apply to most merchandise, but some states exclude certain items, like food products. Some taxing authorities also require the taxable amount to include any shipping and handling charges, while others charge sales tax only on merchandise. Company is required to follow the rules of each state. Your final order total will include the appropriate state and local taxes.

Payment Information. In ordering products through the Website, by telephone, or otherwise, you agree to provide only true, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or for which you are authorized to provide. Company shall have the right to cancel your order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to Company, or for any other reason that we, in our sole discretion, deem appropriate. You agree that your placement of an electronic order on the Website is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.

International Orders. Company does not directly sell certain Company products in any jurisdiction other than the United States of America, as these products may not be approved for sale in other jurisdictions. While Company may choose to accept orders for the purchase of its products from non-U.S. residents, the acceptance of such orders and the sale of such products will be subject to the following conditions:

1. You agree that the purchase of any Company products by you, as a non-U.S. resident, shall be (i) ex works Company’s facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States; and (ii) for your own personal use only and not for further resale or distribution in any manner;
2. You agree not to order more than a ninety (90) day supply of any consumable products within any ninety (90) day period;
3. You hereby expressly authorize and direct Company to load and ship the purchased products to your shipping address, and to contract on your behalf with a courier company for that purpose; and
4. You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties and import requirements from Company’s facilities in the United States to your foreign shipping address.

For Canadian Orders only: The Proactiv Company is an approved CREDITS participant with the Canada Border Services Agency (CBSA). By ordering goods from The Proactiv Company, you hereby authorize Landmark Trade Service LTD. an approved customs broker in CREDITS, to act as your agent, and to transact business with the CBSA to obtain release of your merchandise, account for duties and taxes, return merchandise to The Proactiv Company, and electronically submit refund claims on your behalf. Under the CREDITS program, you understand that the CBSA will send any refund of duties and taxes that were paid on the returned merchandise to the customs broker, and that you will obtain the refund directly from The Proactiv Company. Further, you also authorize Landmark Trade Service LTD. to forward any refund issued by the CBSA in your name, so that The Proactiv Company can be reimbursed.

Subscription Program Terms. If you are placing an order online or by telephone as part of our Subscription Program, your membership in the program will remain in effect until it is cancelled. We may, in our sole discretion, terminate your membership in the program at any time without notice to you.

IF YOU ARE A MEMBER OF OUR SUBSCRIPTION PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SUCCESSIVE SHIPMENT OF PRODUCT OR, IF ELECTED BY YOU AT THE TIME OF ENROLLMENT, IN MONTHLY INSTALLMENTS ON APPROXIMATELY THE SAME DATE EACH MONTH, AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR SUBSCRIPTION PROGRAM, YOU MAY DO SO BY CALLING A CUSTOMER SERVICE REPRESENTATIVE AT THE TELEPHONE NUMBERS LISTED ON THE WEBSITE UNDER CUSTOMER SERVICE or by calling 888-499-8951 FREE in the United States or 888-288-1255 in Canada.

You are obligated to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid (e.g., loss or theft). Changes to such information can be made by calling a customer service representative at the telephone numbers listed on the Website under CUSTOMER SERVICE or by calling 888-499-8951 FREE or 888-288-1255 in Canada. If you are participating in our Subscription Program using a credit card and your credit card fails to process for a subsequent shipment, Company may convert your account to a pay-by-check plan. If your account has been converted to a pay-by-check plan, you will receive an invoice along with your shipment. Invoiced items not paid within 28 days of receipt will be considered past due and Company will send you communications to collect past due balances. If you fail to timely update your credit card information or fail to timely pay by check, your membership in our Subscription Program may be terminated and your account may be sent for collection.

Return/Refund Policy. You may return items in accordance with the Return Policy instructions that accompany your product shipments or, if you are uncertain about your right to return the product, you may also call Customer Service at 888-499-8951 FREE or 888-288-1255 in Canada for assistance. Company will refund your payment when your product is timely returned or cancelled, and within 7 business days of our receipt of the returned product if purchased using third-party credit, such as a Visa or MasterCard.

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", "I 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, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR 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.

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, shipping 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, any purchase or transaction with Company, matters related to your account (including debt collection), 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 or shipping addresses 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 X Out Customer Service, 6 Commerce Way, Arden, NC 28704-9712 or by emailing questions@xout.com. Your consent to this communications provision is not required to make any purchase with Company.

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.

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.

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.

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU 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 here), your relationship with Company, or these Terms of Use and Conditions of Purchase. This includes any and all claims or disputes that relate in any way to your use of the products, your attempted use of the products, and any act or omission by Company or any third party related to your use or attempted use of the products, as well as any claims relating to advertising or representations regarding the products. You, Company, or any involved third party may pursue a Claim. Company agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Company. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to 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.

Exceptions to this Arbitration Agreement. 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. This arbitration agreement also 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 or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to The Proactiv Company LLC, 100 N. Pacific Coast Highway, Suite 1400, El Segundo, CA 90245; Attn: General Counsel. You agree to negotiate with Company in good faith about your problem or dispute. 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. For your convenience, the arbitration may be conducted in a location within the federal district where you reside. It may be held by telephone 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 American Arbitration Association (AAA) Commercial Rules and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.

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.

Arbitration Fees. Company shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. Unless applicable law 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.

Arbitration Award. The arbitrator may award costs or fees to a prevailing party, but only if applicable law allows it. Although 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, unless your Claims are determined by the arbitrator to be frivolous. Any award rendered shall include a written opinion and shall be final, subject to limited appeal rights under the FAA.

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” provision, 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 notice and an opportunity to opt-out. Your continued use of any Company Website, purchase of a Company product, or use or attempted use of a Company product, is affirmation of your consent to such material changes.

YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF A COMPANY PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO THE PROACTIV COMPANY LLC, 100 N. PACIFIC COAST HIGHWAY, SUITE 1400, EL SEGUNDO, CA 90245; 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 OF COMPANY PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.

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 Superior Court of Los Angeles County, California, or the United States District Court for the Central District of California, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.

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.

Company may make changes to these Terms of Use and Conditions of Purchase, 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 and Conditions of Purchase constitutes your acceptance of any such changes. Accordingly, whenever you visit the Website, check to see if a new version has been posted.

X Out® is a trademark of The Proactiv Company Sàrl. All other trademarks and service marks displayed on the Website are the property of The Proactiv Company Sàrl or their respective owners. You may not use or display any trademarks or service marks owned by The Proactiv Company Sàrl without The Proactiv Company Sàrl’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.

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@xout.com

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.

Company may assign, transfer, or sub-contract any of our rights or obligations under these Terms of Use and Conditions of Purchase 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 and Conditions of Purchase 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 and Conditions of Purchase supersede any other terms previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise.