Colgate Professional Direct End-User Terms of Service

Last Updated March 20, 2020

These Colgate Professional Direct End-User Terms of Service (these “Terms of Service”) set forth the terms and conditions upon which Colgate Oral Pharmaceuticals, Inc. and its affiliates (“we”, “us” and "COP") offer you, our third party end-users (“you”), access to this website, the primary home page of which is identified by the url colgatedirect.com (the “Site”) and use of COP’s proprietary Colgate Professional Direct service whereby you may purchase COP products (the “Service”). By clicking “I Agree” or by accessing the Service you agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.


PURCHASES

1.1 Your Account. In order to use the Service you must either (a) register for an account by providing certain information about yourself as prompted on the registration page or (b) proceed with guest checkout. You represent and warrant that: (x) all required registration information you submit is truthful and accurate; (y) you will maintain the accuracy of such information; and (z) your use of the Services does not violate any applicable law or regulation or these Terms of Service. 

1.2 Access. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. The Site may include COP products which are intended for children. However, such products are only available on the Site to adults who can purchase such products with a credit card or other permitted payment method. If you are under 18, you may use the Services only with the involvement of a parent or guardian. COP reserves the right to refuse service, terminate accounts, terminate your rights to use the Services, remove or edit content, or cancel orders in its sole discretion.


1.3 Orders.

1.3.1 The receipt of an email order confirmation shall constitute the acceptance of an order by COP.

1.3.2 COP will only fulfill orders that reflect a shipping address in the United States.

1.3.3 COP reserves the right, without prior notification, to limit the order quantity on any item that is available for purchase on the Site.

1.3.4 COP reserves the right to refuse service to any customer at any time, including after the submission of a purchase. 

1.3.5 COP reserves the right to verify any information submitted on the Site by the consumer prior to COP’s acceptance of an order. 

1.3.6 Prices and availability of products are subject to change without notice.

1.3.7 Errors will be corrected when discovered, and COP reserves the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted), which may include pricing errors. In the event of an error, inaccuracy or omission that is discovered which results in a product mis-shipment, you may be required, upon COP’s request, and at COP’s expense, to return such mis-shipped product.

1.3.8 COP, at its sole discretion, may consider certain orders to constitute improper use of the Service. COP reserves the right, at its sole discretion, to refuse or cancel any order for any reason. 

1.3.9 Your account may also be restricted or terminated for any reason, at COP’s sole discretion.

1.4 Risk of Loss and Title. All shipments of products purchased by you on the Site are made pursuant to a shipment contract between COP and its designated carrier. The risk of loss and title for such products pass to you upon delivery by COP’s designated carrier of the product to the shipping address reflected on the order.

1.5 Returns and Refunds. You may be permitted to return products and receive an associated refund in accordance with COP’s Returns Policy, which is available for viewing on the Site. COP does not take title to returned items until the item arrives at COP’s designated warehouse. At COP’s discretion, a refund may be issued without requiring a return.

1.6 Product Descriptions. COP attempts to be as accurate as possible; however, COP does not warrant that product descriptions or other content on the Site is accurate, complete, reliable, current, or error-free. If a COP product offered through the Site is not as described, your sole remedy is to return the unused portion for a full refund or replacement in accordance with the COP Returns Policy, which is available for viewing on the Site.

1.7 Pricing and Taxes. The price of each product that is reflected on the Site, including the product detail page and shopping cart page, does not reflect any applicable sales taxes. The applicable sales tax amount will be reflected on the payment page.


WARRANTIES AND LIMITATIONS OF LIABILITY.

2.1 Warranties. COP warrants that it will use commercially reasonable efforts to cause the Site to operate in substantial conformance with its published documentation. COP sole obligation and your sole remedy with respect to any failure of the Site to substantially conform to the documentation therefore is for COP to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for you to terminate these Terms of Service pursuant to Section 5.2.

2.2 Ability to Contract; Legal Age. The Service is offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are of legal age to form a binding contract with COP and meet all of the foregoing eligibility requirements. If you are under the age of 18, make sure that your parent or legal guardian reads and agrees with the Terms of Service on your behalf, as your parent or legal guardian shall be fully responsible for your compliance with these Terms of Service. If you do not meet all of these requirements, you must not access or use the Service. In the Terms of Service, “you”, “user” or “your” means any person or entity using the Service, provided that if such person is under the age of 18, “you” and “your” also includes such person’s parent or legal guardian.

2.3 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 2.1, COP DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SITE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COP DOES NOT WARRANT THAT THE SITE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR-FREE, OR THAT ALL FAILURES OF THE SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. COP MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE.

2.4 Limitations of Liability. IN NO EVENT SHALL COP BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE AGGREGATE LIABILITY OF COP FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER SHALL NOT EXCEED $500.

2.5 Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.


UNAUTHORIZED USE 

3.1 Notification of Unauthorized Use. You shall promptly notify COP in writing upon your discovery of any unauthorized use or infringement of the Service, or the related documentation, or COP intellectual property rights with respect thereto. 

3.2 Infringement. COP shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party and, in the event that COP brings such an action or proceeding, you shall cooperate and provide full information and assistance to COP and its counsel in connection with any such action or proceeding.


Data Collection and Privacy

4.1 Privacy Policy. COP’s Privacy Policy is incorporated and made part of these Terms of Service. You hereby agree to such Privacy Policy, which may be updated from time to time. Your continued use of the Service signifies your acknowledgment and acceptance of the revised Privacy Policy.

4.2 Personal Data. Any personal data (for example, your name, address, telephone number, payment information, or e-mail address) that you transmit to the Service will be used by COP in accordance with COP’s Privacy Policy. Any other communication or material you transmit to the Service, such as questions, comments, suggestions or the like, will be treated as non-proprietary. By agreeing to these Terms of Service, you hereby permit COP to share the following items of information with the dental professional that provided you with the recommendation link to our site: name and email address and product-related purchase history. In the event that you select “Guest Checkout”, we will not store your mobile telephone number, and we will only temporarily store your email address solely for purposes of sending you an order confirmation. In the event that you use Facebook or Google as part of your sign-up process, COP will be permitted to store the items of information associated with the registration fields that were transmitted from your Google or Facebook account. You agree to receive communication from COP about products, offers and programs until you notify COP otherwise.


TERM AND TERMINATION

5.1 Term. Your access to the Services shall begin on the date you access the Site and shall continue until terminated earlier under the provisions of this Article 6. 

5.2 Termination for Convenience. COP may terminate your use of the Service at any time. You may terminate this Agreement at any time by cancelling your account for the Services.

5.3 Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all of your license rights under these Terms of Service shall automatically and immediately cease and you shall promptly cease all uses of the Service.


LICENSE; RESERVATION OF RIGHTS

6.1 Limited License to Use the Service. Subject to your compliance with these Terms of Service, COP hereby grants to you a limited, personal, non-exclusive, non-transferable, license to access the Service solely for your own personal purposes. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by COP to you hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto COP. 

6.2 Other License Restrictions. You shall not (i) copy or modify the Service for any purpose; (ii) reverse-engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service; (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service to any other person or entity; or (iv) use the Service or permit, enable or assist a third party, to create competing products or services.

6.3 Intellectual Property Rights. COP retains all intellectual property rights in and to the Service and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including, but not limited to, any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in these Terms of Service, you hereby assign to COP all other intellectual property rights it may now or hereafter possess in the Service and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. You also agree to retain all proprietary marks, legends and patent and copyright notices that appear on the Service and any related documentation delivered to you by COP and all whole or partial copies thereof.


GENERAL

7.1 Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from COP once granted by the appropriate jurisdiction. Your rights and obligations shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. You shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. You shall indemnify and hold harmless COP from and against any and all losses, claims and expenses incurred by COP as a result of the breach of your obligations under this Section.

7.2 Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.

7.3 Force Majeure. In the event that COP is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, COP shall not be liable to you for any damages resulting from such failure to perform or otherwise from such causes. 

7.4 Governing Law. These Terms of Service are governed by the laws of the State of New York, without regard to its choice of law provisions. The courts of general jurisdiction located within New York County, New York, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms Service or in which these Terms of Service are a material fact.

7.5 Dispute Resolution. Any controversy or claim between the parties or between you and COP arising out of these Terms of Service or any use of the Service shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in Topeka, Kansas. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.

7.6 Waiver of Jury Trial and Class Actions. BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND COP ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND COP AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. 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. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF SERVICE IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND COP WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

7.8 Assignment. You may not assign any of its rights or privileges, or delegate any of your duties or obligations hereunder to any third party without the prior written consent of COP. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

7.9 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of COP, to the address set forth on the Site to the attention of the President; and (b) in the case of you, to the address set forth in your account information.

7.10 Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified by you except by an instrument in writing signed by both parties and attached hereto. COP may modify the Terms of Service upon providing written notice to you either via the e-mail registered under your account or by posting such changes through the Site. Any use the Service following any such modification constitutes an acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the Service.

7.11 Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service. 

7.12 Severability. If any provision of the Terms of Service is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.

7.13 Electronic Communications. When you use the Site or Service, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the other COP Services, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.