Last Revised: August 10, 2020
THESE TERMS: (1) REQUIRE ARBITRATION OF DISPUTES; (2) REQUIRE A WAIVER OF CLASS ACTION LAWSUITS; AND (3) LIMIT NUTRICION’S LIABILITY IN DISPUTES.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITES. BY ACCESSING, USING, OR BROWSING THE SITES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, WHICH FORM AN AGREEMENT THAT IS EFFECTIVE AS IF YOU HAD SIGNED IT.
IF YOU DO NOT AGREE TO THESE TERMS, YOUR PERMISSION TO ACCESS, USE, OR BROWSE THE SITES IS AUTOMATICALLY AND IMMEDIATELY REVOKED.
Nutricion may revise or update these Terms from time to time. You should check the Terms regularly for updates. You can determine when the Terms were last updated by referring to the “Last Revised” line at the top of this page. Each time you access, use, or browse the Sites, you signify your acceptance of the then-current Terms.
Nutricion may make changes to the Sites at any time. You understand and agree that Nutricion may discontinue or restrict your use of all or any part of the Sites at any time for any reason or no reason with or without notice.
By using our Sites, you represent and agree that you are over the age of 13, and are fully able and competent to agree to the Terms. If you 13 years or younger, you are not permitted to use the Sites.
You agree to provide accurate, true, complete, and current information about yourself as prompted by the Sites, and to promptly update such information to maintain accurate, true, complete, and current information. If you provide any inaccurate, false, incomplete or outdated information or we in our sole discretion suspect that such information is inaccurate, false, incomplete or outdated, we reserve the right to suspend or terminate your access to the Sites and all current or future use of the Sites or any portion thereof by you.
We are not liable for any loss or damage resulting from your failure to comply with this section.
You agree to use the Sites and engage with the Sites for lawful purposes and that you are responsible for your use of and communications on the Sites. You agree not to post or transmit through the Sites any unlawful, infringing, defamatory, obscene, indecent, threatening, offensive or otherwise objectionable material of any kind including any material that encourages illegal conduct or conduct that would encourage civil liability, infringe on other’s intellectual property rights or otherwise violates any applicable local, state, national, or international law. You agree not to use the Sites in a manner that would interfere with normal operation or infringe on any others use of the Sites.
You agree not to access the Sites by any means other than the interface we provide. Displaying or running the Sites or any information or material displayed on the Sites in frames or through similar means on another website without our prior authorization is prohibited. Any permitted links to the Sites must comply with all applicable laws, rules and regulations.
We make no representation that Materials contained on the Sites or that products described or offered on the Sites are appropriate or available for use in jurisdictions outside the United States, or that these Terms comply with the laws of any other country. Users of the Sites outside the United States do so at their own initiative and risk and are responsible for complying with all applicable laws and regulations. You agree not to access the Sites from any location or territory where its contents are illegal and that you and not us, are responsible for compliance with all applicable laws and regulations.
We reserve the right to terminate any account if your order is deemed fraudulent. You agree that we may terminate or suspend your access to all or part of the Sites, with or without notice, for any conduct that we, in our sole discretion, believe is in violation of any part of these Terms, laws or regulations or is harmful to another user or us or our affiliates.
The following shall survive any termination of the Terms either by us or you: (Section 3) Liability Disclaimer; (Section 4) Indemnification; (Section 5) Severability / Interpretation; (Section 8) Applicable Law; Jurisdiction; Individual Arbitration; Waiver of Jury Trial; Class Waiver; and (Section 9) Miscellaneous.
Where you have provided your telephone number and consented to such contact, you consent to receive automated SMS messages (including text messages) and telephone calls from us, our agents, representatives, affiliates, or anyone sending messages or making calls on our behalf to the specific number(s) you have provided to us with information or questions about your account and/or orders and/or marketing offers. Consent is not a condition of purchase or receipt of services. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Nutricion and our agents, representatives, affiliates, and anyone sending messages on our behalf may use such means of communication described in this section even if you will incur costs to receive such calls, text messages, e-mails or other means, which may occur. Message and data rates may apply. Reply “STOP” to unsubscribe and “HELP” for help.
YOU AGREE THAT THE USE OF THE SITES IS AT YOUR SOLE RISK. THE SITES AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THESE TERMS. NUTRICION AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF ANY OF THEM (COLLECTIVELY, "NUTRICION ENTITIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NUTRICION ENTITIES EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS ATTRIBUTABLE TO NORMAL WEAR, PRODUCT MISUSE OR MODIFICATION, ABUSE, INCORRECT PRODUCT SELECTION AND NOT FOLLOWING PRINTED DIRECTIONS.
NUTRICION ENTITIES MAKE NO WARRANTY THAT THE SITES WILL MEET YOUR REQUIREMENTS, THE SITES WILL BE TIMELY, SECURE, ERROR FREE OR UNINTERRUPTED, THE RESULTS OBTAINED FROM THE SITES WILL BE ACCURATE OR RELIABLE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS AND ANY SITE ERRORS WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITES IS DONE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL. NO INFORMATION OBTAINED BY YOU FROM THE NUTRICION ENTITIES, THROUGH THE SITES SHALL CREATE ANY WARRANTY RELATING TO THE SITES OR SUCH PROGRAM NOT EXPRESSLY STATED IN THESE TERMS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE NUTRICION ENTITIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE NUTRICION ENTITIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, DAMAGES ARISING OUT OF A BREACH OF THE CONFIDENTIALITY, INTEGRITY, OR SECURITY OF YOUR PERSONAL INFORMATION, PERSONAL IDENTIFYING INFORMATION, OR SIMILARLY PROTECTED INFORMATION UNDER THE LAW, INCLUDING BUT NOT LIMITED TO COSTS ASSOCIATED WITH IDENTIFY THEFT MONITORING SERVICES OR RELATED COSTS ARISING OUT OF SAID BREACH ARE CONSIDERED CONSEQUENTIAL DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE ARRANGEMENT BETWEEN NUTRICION AND YOU. THE PRODUCTS, INFORMATION, AND SERVICES OFFERED ON AND THROUGH THE SITES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
SUBJECT TO THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF NUTRICION ENTITIES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT, INFORMATION OR SERVICE PURCHASED BY YOU FROM NUTRICION ON THE SITES OR THE TOTAL AMOUNT OF THE PRODUCTS LAST PURCHASED IN STORE AT ONE OF NUTRICION’S STORES.
BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITES.
WE MAKE NO GUARANTEE OR WARRANTY WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD. WE ARE NOT RESPONSIBLE FOR ANY DAMAGES FOR INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTIES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
You agree to indemnify, defend and hold harmless Nutricion from and against all losses, expenses, costs and damages including attorney's fees resulting from your use or inability to use the Sites, products or services purchased or obtained by you in connection with the Sites, your violation of any of these Terms, your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You agree to cooperate as fully as reasonably required in the defense of any such claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you pursuant to this section, in which event you will still be required to indemnify us for the attorneys’ fees and expenses in addition to any losses, claims, damages and liabilities incurred by us as a result of this claim. You shall not in any event settle any matter without prior written consent of Nutricion.
You acknowledge that the Sites and all materials on the Sites, including without limitation the Sites’ design, text, graphics, sounds, pictures, software and other files, its look and feel, and the selection, arrangement and coordination thereof (collectively, “Materials”) are our property and are subject to and protected by United States and international copyright or other intellectual property laws and rights. The trademarks, service marks, trade dress, trade names, and logos contained on the Sites, including without limitation trademarks registered in the United States (collectively, “Marks”) are the sole property of Nutricion or its affiliates. In addition all page headers, custom graphics and custom icons are Marks of Nutricion. Nutricion grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Materials and Marks only in the manner permitted by Nutricion for your personal and non-commercial use only (the “License”). You agree not to copy, modify, use, distribute, transmit, republish, sell, resell or exploit, for any purpose, any portion of the Sites, Materials or Marks other than as expressly authorized by Nutricion in writing. This License remains in effect until these Terms are terminated by either you or us in accordance with these Terms. Any unauthorized use of the Materials or Marks shall be grounds for termination of the License. All rights not expressly granted herein are reserved by Nutricion and its licensors. Other copyrights, trademarks, product names, company names, logos or intellectual property are the property of the respective owners with all rights reserved. Site references to third parties or their copyrights, trademarks or other intellectual property do not constitute or imply affiliation with, endorsement, or recommendation of Nutricion by the respective trademark owners, or by Nutricion of the respective trademark owners.
These Terms constitute the only agreement between us and you with respect to the subject matter of these Terms. These Terms supersede all prior or contemporaneous agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of these Terms.
If any provision of these Terms are deemed void, unlawful, or otherwise unenforceable for any reason, that provision will be severed from these Terms and the remainder of these Terms will remain in force. When used in these Terms, the term “including” will be deemed to be followed by the words “without limitation.”
All questions concerning the construction, validity, enforcement and interpretation of these Terms shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to any choice of law or conflict of law.
The Parties further agree that the following agreement to arbitrate is part of an agreement made in interstate commerce and is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, and that on questions of the construction, validity, enforcement, or interpretation of the agreement to arbitrate, the FAA shall control.
You and Nutricion agree to arbitrate, on an individual basis, any controversy, claim, or dispute arising out of or in any way related to these Terms, including but not limited to claims based on contract, tort, negligence, statutory or regulatory provisions. It is expressly intended that the Nutricion Entities shall have the ability to enforce this arbitration agreement. EACH PARTY IS GIVING UP (WAIVING) ITS RIGHT TO SUE IN COURT AND TO HAVE ANY CONTROVERSY, CLAIM OR DISPUTE HEAR BY A JUDGE OR JURY.
YOU AND NUTRICION EXPRESSLY AGREE TO ARBITRATE ANY CONTROVERSY, CLAIM, OR DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO THRESHOLD ARBITRABILITY ISSUES, INCLUDING ISSUES RELATED TO WHETHER THESE TERMS ARE UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION.
THE PARTIES ALSO AGREE THAT ANY ARBITRATION MAY ONLY BE BROUGHT IN YOUR AND OUR INDIVIDUAL CAPACITIES, NOT AS A CLASS, PURPORTED CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE INDIVIDUAL OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, COLLECTIVE, OR CLASS PROCEEDING. IF ANY PORTION OF THIS CLASS WAIVER PROVISION IS HELD INVALID OR UNENFORCEABLE, IT SHALL NOT BE SEVERED, AND THE ENTIRE AGREEMENT TO ARBITRATION SHALL BE UNENFORCEABLE.
The mutual promise by you and Nutricion to arbitrate any and all disputes, and to do so on an individual basis, rather than to litigate before the courts or other bodies, provides the mutual consideration for this agreement to arbitrate.
Either Party may exercise the right to arbitrate by providing the other Party with written notice of any and all claims forming the basis of such right in sufficient detail to inform the other Party of the substance of such claims, and a demand to arbitrate those claims. In no event shall the request for arbitration be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations.
Unless you and the Nutricion Entities otherwise agree, the arbitration will be conducted in the county where you reside by a single neutral arbitrator and in accordance with the then current rules for resolution of disputes of the American Arbitration Association (AAA) (available on line at www.adr.org or upon request from Nutricion’s Customer Service, below) or, if those rules are no longer available, the applicable rules selected by the arbitrator; provided, however, that no rules permitting class, collective, or other representative arbitrations shall be used. In the event of any conflict between this agreement to arbitrate and the rules governing the arbitration, the terms of this agreement to arbitrate shall control.
The Parties are entitled to representation by an attorney or other representative of their choosing, and at their own costs. The parties agree to abide by and perform any award rendered by the arbitrator; provided, however, that the arbitrator shall not have the authority to award punitive or exemplary damages or to issue injunctive or other equitable relief. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
The failure of Nutricion to enforce your strict performance of any term of these Terms will not constitute a waiver of such term and will not be considered a waiver or limit that party's right thereafter to insist upon strict adherence to that term or any other term of these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or relating to the use of the Sites or these Terms must be filed within one (1) year after such claim or cause of action arose or such claim or cause of action will be permanently barred. The "Liability Disclaimer" provisions of these Terms are for the benefit of Nutricion Entities as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against your on its own behalf.
If you have any questions about these Terms, contact Michael Amiri, Nutricion Fundamental, Inc., 19315 E. San Jose Ave., City of Industry, CA 91748, firstname.lastname@example.org.