In order to participate in the Program, you represent and warrant the following:

1. You are at least 18 years of age (or the age of majority where You live, if that is over 18) and a resident of the United States;
2. You have not been convicted of any felonies;
3. You have not been convicted of any crimes involving dishonesty, perjury, or moral turpitude;
4. There are no judgements, consent decrees, or other judicial orders entered against You finding You liable for counterfeiting, trademark infringement, copyright infringement, patent infringement, or misappropriation of trade secrets;
5. You have not entered any settlement or agreement whereby You admitted to engaging in counterfeiting, trademark infringement, copyright infringement, patent infringement, or misappropriation of trade secrets; and
6. You are not a healthcare provider (a “HCP”), including prescribers and non-prescribers, and including Licensed or Registered Dietitians.

By participating in this Program, You further agree that We may review Your social media content and public profile to ensure Your compliance with these Terms.

The relationship between You and Orgain pursuant to these Terms is non-exclusive. Orgain may work with other creators, and You may market other goods on TikTok.

During Your participation in the Program, you agree to: 

1. Comply with all applicable laws, regulations and regulatory guidelines, including the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” relating to Your participation in the Program and the marketing and promotion of Orgain and its products;
2. Comply with TikTok Shop’s Creator Terms of Use and all other TikTok rules and policies;
3. Not engage in any deceptive, fraudulent, or misleading practices;
4. Not sell Orgain products or modify any Orgain terms of sale;
5. Not post or share content or engage in any activity that infringes on the rights of any third party, including but not limited to intellectual property rights, privacy rights, or contractual obligations;
6. Not engage in any act which might reasonably be considered as immoral, deceptive, scandalous or obscene, or which could potentially injure, tarnish, damage, or otherwise negatively affect the reputation, image, or goodwill of Orgain;
7. Remove any content associated with Orgain, the Program, or any Orgain products from TikTok or any other social media platform within 24 hours of a written request from Us or authorized representatives; and
8. Promptly provide Us with any information that We request to verify Your compliance with these Terms.

Pregnancy, Lactation or Other Medical Condition. To ensure the safe use of the Orgain Products consistent with label warning and truth in advertising and promotion, You are obligated to notify Orgain as soon as practical under the following scenarios:

 

Pregnancy. In the event of pregnancy, You shall have the option to either:  (a) suspend your participation in the Program during the pregnancy until your healthcare provider (“HCP”) determines
it is permissible to resume the use of the applicable Orgain products. You and Orgain will mutually agree on a date to resume your participation in the Program;  or (b) terminate your participation in the Program effective immediately.

 

Lactation or Other Medical Condition (HCP Advises Suspension of Product Use). If You are lactating or have a medical condition whereby Your HCP advises You to suspend use of the applicable Orgain product,
You shall notify Orgain of such suspension of use as soon as practical.  Thereafter, your participation in the Program shall be suspended for the duration of the nonuse of the applicable Orgain product per the HCP’s directive (“Suspension Period”). Notwithstanding the aforesaid, You and Orgain shall mutually determine whether to suspend your participation in the Program per the Suspension Period or terminate your
participation in the Program effective immediately.

 

Lactation or Other Medical Condition (HCP Approves Continued Product Use). If You are lactating or have a medical condition and Your HCP advises it is
permissible to continue the use of the applicable Orgain product, you shall: (a)
avoid any reference to lactating or the medical condition in the content developed for Orgain; and (b) prominently include as copy in the content the following disclaimer:  “If you are pregnant, nursing or have a medical condition, consult your healthcare provider before use.”

By participating in the Program, You agree to:

1. You acknowledge that Orgain will make available to You a briefing document (each, a “Creator Brief”) that sets forth messaging guidelines, mandatory disclaimers, content requirements, product details and other related information. Each Creator Brief will be available through the TikTok Shop. You must review each applicable Creator Brief before you promote, market or create any content relating to Orgain or its products.
2. Any content You create or use for purposes of the Program must comply with the applicable Creator Brief.
3. You further agree that all content You create or use for purposes of this Program must:
   
   - Be truthful and honestly reflect your experience with Orgain products;
   - Be appropriately labeled as advertising and accompanied with a prominent disclosure of Your relationship to Orgain, as further described in the Creator Brief;
   - Only make product claims that are permitted by a Creator Brief. You cannot create or promote any false impressions about the nature or benefits of Orgain or its products. For example, Orgain products cannot be referenced in any messaging that would suggest or insinuate that the Orgain product is “treating,” “curing,” or “preventing” any disease;
   - NOT promote any kind of overconsumption of Orgain products;
   - NOT include children under 18 years of age;
   - NOT include any person in Your content, other than yourself, unless you have that person’s prior written consent, which could be provided to Orgain upon request;
   - NOT include any branding, including trademarks, logos, or slogans, other than branding associated with the Orgain brand (i.e., apparel with logos, identifiable smart watches, identifiable cell phones, unbranded third party products that may be recognizable based on shape, configuration, or color, posters/advertisements);
   - NOT mention or feature any of Orgain’s competitors or their products;Ensure that any content You post is Your original creation, except as otherwise permitted in the following two bullets;
   - NOT use music, videos, photographs, music lyrics, artwork, slogans, sculpture art, graphics, text, or other copyrightable works owned by a third party unless those works are fully and properly licensed from the rights owner for commercial usage;
   - NOT show any tattoos, unless you have a proper license from the original artist to use the tattoo for commercial usage;
   - NOT include references to or images of celebrities or other public figures, television shows and movies, award shows, tournaments, major professional sports games, or memes/GIFs that include images of celebrities or other public figures;
   - NOT include nudity, profanity, political statements, or any other mentions of polarizing topics;
   - NOT engage in illegal or inappropriate behavior; and
   - NOT include revealing or suggestive clothing.

You acknowledge and agree that the use of any generative artificial intelligence software, systems, technologies, processing or machine learning tools, including but not limited to ChatGPT, Playground, Avataar, DreamStudio, GitHub Copilot (“GenAI”) in connection with the creation of any content under this Program, whether directly or indirectly is strictly prohibited, unless You have the express written permission of Orgain. You represent and warrant to Orgain, and You agree that: (i) all content You create and use in connection with the Program will be solely the result of Your independent and original efforts produced and/or created without any use or assistance of GenAI; and (ii) all content you create and use in connection with the Program will not incorporate or utilize, in whole or in part, GenAI without the express written permission of Orgain.

• By participating in the Program, You may be eligible to earn commissions or fees based on your promotion of Orgain products through TikTok. Your eligibility to receive commissions or fees, and the calculation and payment of such commissions and fees, are subject to these Terms and the TikTok Shop Terms and Conditions, including but not limited to the provisions outlined in Section 7 (Commissions) of the TikTok Shop Terms and Conditions, as they may be amended by TikTok.
• Orgain or its representatives will inform You, through the TikTok platform, of the applicable commission rate for each product. If you have any questions on the applicable commission rate or fees, please contact Orgain or its representative (in accordance with Section 17 below) to confirm the commission rate or fees before you make any content for Orgain or its products.
• All payments of commissions and fees will be made to you by TikTok in accordance with the TikTok Shop Terms and Conditions, including but not limited to the provisions outlined in Section 8 (Payment Services to You) of the TikTok Shop Terms and Conditions, as they may be amended by TikTok.
• We do not make any representation regarding the amount of commission income or fees You can expect at any time in connection with the Program, and We will not be liable for any actions You undertake based on Your expectations.
• It is Your obligation to pay any applicable taxes owed on any commissions or fees paid to You as a result of Your participation in the Program, including but not limited to all federal, state, and local taxes and any other costs or expenses, including duties, pension contributions, and insurance costs.

We may terminate Your participation in the Program at any time for any reason, including but not limited to any of the following: (a) You are in material breach of these Terms, (b) We believe that We may face potential claims or liability in connection with Your participation in the Program; (c) We believe that our brand or reputation may be tarnished by You or in connection with Your participation in the Program; (d) Your participation in the Program has been used for deceptive, fraudulent, or illegal activity; (e) You are in breach of a Orgain Creator Brief; (f) We have terminated the Program as We generally make it available to participants; or (g) TikTok closes or permanently suspends, disables, or terminates Your TikTok Creator Center account.  At the time of termination, any commission payments will cease, and Orgain reserves the right to direct any third-party platform to remove any of Your content that includes reference to Orgain or its products.

You may terminate your participation in the Program at any time for any reason by providing written notice to Orgain or through the TikTok Shop pursuant to TikTok Shop’s Creator Terms of Use.

If You violate these Terms, in addition to any other rights or remedies available to Us, We reserve the right to (i) direct TikTok to permanently (to the extent permitted by applicable law) cease payment of (and You agree You will not be eligible to receive) any commission income attributable to this Program otherwise payable to You under these Terms and the TikTok Shop’s Creator Terms of Use, whether or not directly related to such violation without notice and without prejudice to any right of Orgain to recover damages over this amount; (ii) request TikTok remove any content posted by You on TikTok, including content which violates these Terms; and (iii) prohibit You from participating in the Program.

NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROGRAM, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE ARE EXPRESSLY DISCLAIMED. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE COMMISSIONS, PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM. ORGAIN EXPRESSLY DISCLAIMS ANY WARRANTY, REPRESENTATION, OR COVENANT THAT IT WILL PROMOTE, BOOST, OR SHARE ANY CONTENT CREATED BY CREATOR.

NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION INCOME PAID OR PAYABLE TO YOU UNDER THESE TERMS IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THESE TERMS. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR TIKTOK CHANNELS(S) (INCLUDING YOUR USE OF ANY TIKTOK SERVICE OFFERING) OR YOUR VIOLATION OF THESE TERMS, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND OUR RESPECTIVE AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR TIKTOK CHANNELS(S) OR ANY MATERIALS THAT APPEAR ON YOUR TIKTOK CHANNELS(S), INCLUDING THE COMBINATION OF YOUR TIKTOK CHANNELS(S) OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR TIKTOK CHANNELS OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR TIKTOK CHANNELS, (C) YOUR USE OF ANY TIKTOK SERVICE OFFERING OR YOUR PARTICIPATION IN THE PROGRAM, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THESE TERMS OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THESE TERMS, (E) YOUR TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY YOUR TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) YOUR OR YOUR EMPLOYEES’ OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT. WE OR OUR NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY NPPC PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.

You and We are independent contractors, and nothing in these Terms or Your participation in the Program will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between You and Us or our respective affiliates, nor shall You represent to any third party that any of the foregoing relationships exists. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. If You authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of these Terms, You will be deemed to have taken the action Yourself. You shall have no authority to make or accept any offers or representations on behalf of Orgain or any of its affiliates.
We shall not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions including for unemployment or disability, or obtaining workers’ compensation insurance on your behalf. You shall be responsible for, and shall indemnify Orgain against, all such taxes and contributions, including penalties and interest. Any persons employed or engaged by you in connection with your participation in the Program shall be your employees or contractors and you shall be fully responsible for them and indemnify Orgain against any claims made by or on behalf of any such employee or contractor.

PLEASE READ THIS SECTION CAREFULLY. IT CONTAINS AN ARBITRATION AGREEMENT (THE “ARBITRATION AGREEMENT”). THIS SECTION MAY SIGNIFICANTLY AFFECT HOW CLAIMS YOU MAY HAVE AGAINST Orgain, OR CLAIMS Orgain MAY HAVE AGAINST YOU, WILL BE RESOLVED.  THIS SECTION MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. THIS SECTION ALSO CONTAINS PROCEDURES FOR FINAL BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION (COLLECTIVELY, “CLASS ACTION”) IN ARBITRATION OR LITIGATION.

THIS DISPUTE RESOLUTION SECTION ALSO ADDRESSES THAT YOU AND ORGAIN ARE GIVING UP THE RIGHT TO HAVE A JURY TRIAL TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND TO FILE OR PARTICIPATE IN A CLASS ACTION SUBJECT TO THE LIMITED EXCLUSION BELOW.  IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY, AND THERE IS LESS DISCOVERY AND APPELLATE
REVIEW THAN IN COURT.

This Arbitration Agreement does not in any way alter your ability to bring concerns to the attention of Orgain, or to raise any concerns with federal, state, or local agencies.

For the purposes of this Section, the terms “Orgain,” “our,” “we,” or “us” include Orgain, its officers, directors, employees, agents, licensors, and partners.

a) Arbitration Agreement. YOU AND ORGAIN AGREE THAT ALL DISPUTES (DEFINED BELOW) SHALL BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT WE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.   NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY ELECT TO HAVE INDIVIDUAL CLAIMS HEARD IN SMALL CLAIMS COURT SO LONG AS THE MATTER REMAINS IN SUCH COURT AND IS NOT REMOVED OR APPEALED TO A COURT OF GENERAL JURISDICTION AND ADVANCES ONLY ON AN INDIVIDUAL (NON-CLASS ACTION BASIS).  ANY DISPUTE OVER WHETHER CLAIMS QUALIFY FOR SMALL CLAIMS COURT IS FOR THE SMALL CLAIMS COURT TO DECIDE IN THE FIRST INSTANCE AND, IF NECESSARY, FOR A COURT OF COMPETENT JURISDICTION TO DECIDE.

YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS OF USE WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATION AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.

For purposes of this Section, “Dispute” shall include, but is not limited to, any claims or controversies between you and Orgain that are related in any way to these Terms of Use, including, but not limited to, your participation in the Program.  “Dispute” also includes, without limitation, claims that: (a) you bring against Orgain; (b) Orgain brings against you; (c) in any way relate to or arise out of any aspect of the relationship between you and Orgain, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you entered into these Terms of Use or out of a prior agreement with Orgain (including, without limitation, claims relating to advertising); (e) are subject to ongoing litigation where you are not a party or a member of a certified class; and/or (f) arise after the termination of these Terms of Use. “Dispute,” however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property or claims for personal bodily injury, which shall not be subject to arbitration or the notice and informal process described below.    

The arbitrator shall decide all issues except for: (a) those that are specifically reserved for a court herein; (b) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement or any of the provisions of this Section; (c) any issues arising from or relating to the arbitrability of any Dispute; and (d) whether the arbitration administrator cannot or will not administer the arbitration in accordance with this Arbitration Agreement—all of which are for a court of competent jurisdiction to decide.  

(i) Mandatory Pre-Arbitration Informal Dispute Resolution.  You and Orgain agree that good-faith informal efforts to resolve Disputes often can result in a prompt, low-cost and mutually beneficial outcome.  Therefore, you and Orgain agree to engage cooperatively to try and resolve any Dispute informally prior to you or Orgain initiating an arbitration proceeding.

The party initiating the Dispute, whether it be you or Orgain, must first send a written notice to the other party providing a detailed description of the Dispute, including at least the following information: (1) the initiating party’s name and contact information (address, telephone number, email address, and account number if applicable); (2) the nature and basis of the Dispute and any claims; and (3) the nature and basis of the relief sought (including a calculation of any damages).  Your notice to us must be personally signed by you (and your attorney if you are represented by legal counsel).  Our notice to you must be personally signed by a Orgain representative (and our attorney if we are represented by legal counsel).

Your notice to Orgain must be sent to the following:

Orgain LLC

1007 US Highway 202/206 – JR2

Bridgewater, NJ 08807

Attn: General Counsel   

Our notice to you must be sent to the most recent contact information that you have provided to us.

The initiating party must allow the other party 60 days to respond and attempt to resolve the Dispute amicably before initiating an arbitration or other proceeding per the terms set forth below.

For a period of 60 days from the date of receipt of a completed notice from the other party, you and we will work together using reasonable efforts to try to resolve the Dispute.  If requested by us in connection with a notice initiated by you, you agree to personally participate in an individualized, telephone dispute resolution conference (and if you are represented by an attorney, your attorney may also participate) in a good-faith effort to resolve informally the Dispute.  If requested by you in connection with a notice initiated by us, we agree to have a Orgain representative personally participate in an individualized, telephone dispute resolution conference (and if Orgain is represented by counsel, Orgain’ counsel may also participate) in a good-faith effort to resolve informally the Dispute.  If the Dispute is not resolved within this 60-day period (which can be extended by agreement of the parties), you or we may commence arbitration consistent with the process set forth below.  Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating arbitration, and the arbitrator shall dismiss any arbitration demand filed before completion of this informal dispute resolution process. 

Any applicable limitations period (including statute of limitations) and filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution.

If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed pending resolution of the issue.  The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees.  You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.

(ii) Arbitration Rules and Procedures, Individualized Relief; Fees.  In order to initiate arbitration following the conclusion of the informal dispute resolution process required by this Section, a party must provide the other party with a written demand for arbitration and file the demand with American Arbitration Association (“AAA”).  Information about AAA can be found generally at https://www.adr.org/.  A party initiating an arbitration against Orgain must send the written demand for arbitration to Orgain LLC, 1007 US Highway 202/206 – JR2, Bridgewater, NJ 08807, Attn: General Counsel.  For Orgain to initiate arbitration, we must send the written demand for arbitration to the most recent contact information that you have provided us.

The arbitration demand must be accompanied by a certification of completion of the informal dispute resolution process and a copy of the notice.  If you are initiating arbitration, the arbitration demand and certification must be personally signed by you or your counsel (if you are represented by counsel).  If Orgain is initiating arbitration, the arbitration demand and certification must be personally signed by a Orgain representative or its counsel (if Orgain is represented by counsel).

By signing or filing the arbitration demand, the party and the party’s counsel initiating the arbitration certify that to the best of their information, knowledge, and belief, formed after a reasonable inquiry under the circumstances, that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery.  The arbitrator is expressly authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law on represented parties and their counsel for either party’s violation of this requirement.

Notwithstanding any choice of law or other provision of this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs the interpretation and enforcement of this Arbitration Agreement.

The arbitration shall be administered by AAA under its applicable rules (the “AAA Rules”),  as modified by this Agreement.  The AAARules are available at https://www.adr.org/arbitration/. The arbitration will be conducted by a single arbitrator, other than potential use of a Process Administrator, who may be appointed in accordance with the AAA Rules.  If AAA is unavailable or unwilling to administer the arbitration consistent with the AAA Rules as modified by this Agreement, the parties shall agree on an administrator that will do so.  If the parties cannot agree on an administrator, they shall jointly petition a court of competent jurisdiction to appoint an administrator that will administer the arbitration consistent with its rules as modified by this Agreement. 

The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate.  Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, such determination should be made by AAA or by the arbitrator. In cases where an in-person hearing is held, and where the monetary demand is below $10,000, you and/or Orgain may attend by telephone, unless the arbitrator requires otherwise.

UNLESS BOTH YOU AND WE AGREE OTHERWISE, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL BASIS. CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED JOINTLY OR BE CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. ADDITIONALLY, YOU AND ORGAIN AGREE THAT THE ARBITRATOR MAY AWARD INDIVIDUAL RELIEF AVAILABLE IN COURT (INCLUDING, WITHOUT LIMITATION, DAMAGES, DECLARATORY, INJUNCTIVE, OR OTHER EQUITABLE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S PARTICULAR CLAIM. THE ARBITRATOR MAY NOT ISSUE A “PUBLIC INJUNCTION.”  THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE CLASS ACTION WAIVER PROVISIONS.  IF, FOR ANY REASON, A COURT OF COMPETENT JURISDICTION HOLDS THAT THESE RESTRICTIONS ARE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THE PARTIES AGREE THAT THE PARTICULAR CLAIM OR REQUEST FOR RELIEF MAY PROCEED IN A COURT OF COMPETENT JURISDICTION BUT SHALL BE STAYED PENDING ARBITRATION OF ALL REMAINING CLAIMS AND REQUESTS FOR RELIEF.

The arbitrator shall issue a reasoned written award.  Judgment on the arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered.  The arbitrator’s decision shall be final and binding on all parties to the arbitration that are subject of the decision.  The arbitration award shall have no preclusive effect in any other arbitration or proceeding that does not involve you Orgain.

The payment of any filing, administrative, or arbitrator fees will be governed by the applicable AAA Rules and shall be up to the amount you would be required to pay if you filed the Dispute in court.  If the arbitrator finds that you cannot afford to pay any such fees and you cannot obtain a waiver of fees from the arbitration administrator, Orgain will pay such fees for you if the arbitrator deems the payment of such amount is necessary to prevent the arbitration from being cost-prohibitive.  The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose.

You and Orgain agree that the parties have a shared interest in reducing the fees and costs, and increasing the efficiencies, associated with arbitration.  Therefore, you or Orgain may elect to engage with the arbitration administrator regarding fees, and you and Orgain agree that the parties (and their counsel, if the parties are represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties. 

(iii) Additional Procedures for Mass Arbitration: You and Orgain agree that these Additional Procedures for Mass Arbitration (in addition to the other provisions of this Arbitration Agreement) shall also apply in the event of a “Mass Arbitration” (defined below).  You and Orgain agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere Disputes between the parties. You and Orgain acknowledge and agree to act in good faith to ensure the procedures set forth herein are followed.

If claimants (including you) assert or seek to assert 25 or more similar arbitration demands against Orgain with the same counsel or counsel acting in coordination (“Mass Arbitration”), the JAMS Mass Arbitration Procedures and Guidelines and these provisions shall apply.  For the avoidance of doubt, if any Mass Arbitration demands were originally processed as individual arbitration demands before the procedures described in this Additional Procedures for Mass Arbitration section were commenced, further proceedings, including the assessment of further arbitration fees to either party shall be governed by the procedures set forth in this Additional Procedures for Mass Arbitration section and any applicable AAA rules.

Decisions by the Process Administrator shall not be binding on claimants who filed an arbitration demand determined to be part of the Mass Arbitration subsequent to the Process Administrator’s decision. 

In coordination with the Process Administrator, Mass Arbitration demands will be batched into batches of up to 50 demands.  If the parties cannot agree on batching, whether or how many demands should be assigned to a single arbitrator, or as to any other procedural aspects of dealing with a mass arbitration, the parties shall submit such issues for decision by the Process Administrator.  Arbitration awards in one arbitration or batch of arbitrations shall have no precedential effect on subsequently administered batches.

You acknowledge and agree that, by choosing to participate in a Mass Arbitration, the resolution of your Dispute might be delayed.  The parties agree that throughout this process, their counsel shall meet and confer in an effort to informally resolve the Dispute, streamline procedures, address the informal exchange of information, modify the number of Disputes to be adjudicated and to promote efficiency, conservation of resources, and the resolution of Disputes, including to engage with the arbitration administrator to address threshold administrative issues.

If your Dispute is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to JAMS until your Dispute proceeds in arbitration or is settled, withdrawn, otherwise resolved, or opted out of arbitration.

A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitration section of the Arbitration Agreement, including by enjoining the filing, prosecution, or administration of arbitrations, and the assessment or collection of arbitration fees.

The Additional Procedures for Mass Arbitrations section of the Arbitration Agreement and each of its requirements are essential parts of this Arbitration Agreement.  If, after exhaustion of all appeals, a court of competent jurisdiction decides that this Additional Procedures for Mass Arbitrations section applies to your Dispute and is not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Agreement.

(iv) Changes to Arbitration Agreement: If Orgain changes this Dispute Resolution section after the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject that change by sending us written notice to 007 US Highway 202/206 – JR2, Bridgewater, NJ 08807, Attn: General Counsel with your first and last name, e-mail address, and, if applicable, any Program information and stating your intent to reject the change within 30 days of the date the change is effective.  Rejecting any change, however, does not revoke or alter your prior consent or any earlier agreements to arbitrate any Dispute between you and Orgain.

(iv) Severance of Arbitration Agreement: If any portion of this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed.  Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.  Notwithstanding the foregoing, if the class action waiver in this Dispute Resolution section is found to be void, unenforceable, or unlawful, in whole or in part, with respect to a particular claim or request for relief (such as a request for public injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), the parties agree that the particular claim or request for relief may proceed in a court of competent jurisdiction but shall be stayed pending arbitration of all remaining claims and requests for relief.

(v) Survival of Arbitration Agreement: Except as otherwise provided in this Dispute Resolution section, this Arbitration Agreement will survive any termination of the Agreement or of your access to the Services.  This Arbitration Agreement survives after your relationship with Orgain ends.

(b) Waiver of Jury Trial; Waiver of Class Actions: TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, YOU AND ORGAIN WAIVE THE RIGHT TO A JURY TRIAL.  YOU AND ORGAIN ALSO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION OR IN LITIGATION IN COURT.  NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.

Any Dispute must be brought within the earlier of (a) the limitations period for the cause of action under applicable law and (b) two (2) years of the particular submission date giving rise to the cause of action, or such claims will be deemed extinguished.  Each party shall be responsible for its own attorneys’ fees and costs.

Except otherwise provided herein and to the extent permitted by applicable law, these Terms and the contractual relationship between You and Orgain and its affiliates and brands shall be governed by the Federal Arbitration Act, applicable federal laws, and the laws of the State of New Jersey, USA, without regard to principles of conflict of laws, but subject to the Federal Arbitration Act and other federal law relating to the arbitrability of claims. You agree that all matters relating to the Program, including all disputes, will be governed by the laws of the United States and by the laws of the State of New Jersey.

Any dispute or controversy arising under or relating to this Agreement that is not addressed through arbitration must be brought in a United States District Court in the State of New Jersey if the jurisdictional prerequisites exist. If the jurisdictional prerequisites do not exist, the state courts of New Jersey shall have sole and exclusive jurisdiction to hear and determine any dispute or controversy arising under or relating to this Agreement.  You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.

We reserve the right to modify any of the terms and conditions contained in these Terms at any time and in our sole discretion by posting a change notice or revised Terms. The effective date of such change will be the date the notice is provided. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM.

If you have any questions about these Terms you may contact us by email at support@orgain.com or by mail to:

Orgain, LLC

16851 Hale Ave.

Irvine, California 92606

Attn: Brand Experience           

With a copy to:

Orgain, LLC

1007 US Highway 202/206 – JR2

Bridgewater, NJ 08807

Attn: General Counsel