Terms and Conditions
[Last Updated: August 8, 2017]
Table of Contents
- 1. Acceptance of Our Terms
- 2. Provision of Services
- 3. Copyright
- 4. Trademarks
- 5. Warranty Disclaimers
- 6. Unauthorized Dealers and Resellers
- 7. Limitation of Liability
- 8. Typographical Errors
- 9. Term and Termination
- 10. Notice
- 11. Waiver, Modifications, and Assignment of Rights
- 12. Use of Website
- 13. Disclaimer for User-Generated Content
- 14. Indemnification
- 15. Third-Party Links
- 16. Governing Law and Jurisdiction
- 17. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION / CLASS ACTION WAIVER
- 18. Limited Time to File Claims
- 19. Exclusions and Limitations; Consumer Protection Notice
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF WEBSITE USE CAREFULLY BEFORE USING THIS WEBSITE. ALL USERS OF THIS SITE AGREE THAT ACCESS TO, AND USE OF, THIS SITE ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS GOVERN YOUR USE OF THE NUTRASTIM LLC WEBSITE (“WEBSITE” OR “SITE”) AND CONSTITUTE A CONTRACT BETWEEN YOU (“YOU” OR “USER”) AND NUTRASTIM LLC. IF YOU DO NOT AGREE TO ACCEPT THESE TERMS IN THEIR ENTIRETY, PLEASE DISCONTINUE YOUR USE OF THE SITE IMMEDIATELY. IF YOU ARE UNDER THE AGE OF 18, YOUR PARENTS OR LEGAL GUARDIAN MUST REVIEW AND ACCEPT THESE TERMS BEFORE YOU USE THIS SITE FOR ANY REASON. THIS SITE IS NOT DIRECTED TO CHILDREN UNDER THE AGE OF 18.
1. Acceptance of our Terms
By visiting the NutraStim LLC (“NutraStim”) Website, and by viewing, accessing or otherwise using any of the services or information created, collected, compiled or submitted to this Website, you agree to be bound by the following Terms and Conditions of Website Use (“Terms”). If you do not want to be bound by our Terms, you should not visit, view or otherwise use the services of the NutraStim Website. You understand, agree and acknowledge that these Terms constitute a legally binding agreement between you and NutraStim and that your use of this Website shall indicate your conclusive acceptance of this agreement.
NutraStim may modify these Terms or other policies set forth on the Site from time to time. When we modify these Terms, we will update the “Last Updated” line above. It is your responsibility to regularly review these Terms. Your use of the Site following the posting of updated Terms constitutes your acceptance of such updated Terms.
2. Provision of Services
You agree and acknowledge that NutraStim is entitled to modify, improve or discontinue any of its services at its discretion and without notice to you even if it may result in you being prevented from accessing any information contained in it. Furthermore, you agree and acknowledge that NutraStim is entitled to provide services to you through subsidiaries or affiliated entities.
The entire content included in this Site, including but not limited to text, graphics or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of NutraStim. The collective work includes works that are licensed to NutraStim LLC. ALL RIGHTS RESERVED. Permission is granted to electronically copy and print hard copy portions of this Site for the sole purpose of placing an order with NutraStim or purchasing NutraStim products. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download or print portions of the material from the different areas of the Site solely for your own noncommercial use, or to place an order with NutraStim or to purchase NutraStim products. Any other use, including but not limited to the reproduction, distribution, display or transmission of the content of this Site is strictly prohibited, unless authorized by NutraStim. You further agree not to change or delete any proprietary notices from materials downloaded from the Site.
All trademarks, service marks and trade names of NutraStim used in the Site are trademarks or registered trademarks of NutraStim. The transfer of trademark rights DOES NOT INCLUDE THE TRANSFERRING OF SAID RIGHTS TO EBAY, AMAZON, ANY OF THEIR AFFILIATES’ WEBSITES or any other auction Website or online marketplace.
5. Warranty Disclaimer
This Site and the materials and products on this Site are provided “as is”. Except as otherwise provided on each product page, NutraStim disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. NutraStim does not represent or warrant that the functions contained in the Site will be uninterrupted or error-free, that the defects will be corrected, or that this Site or the server that makes the Site available are free of viruses or other harmful components. NutraStim does not make any warrantees or representations regarding the use of the materials in this Site in terms of their correctness, accuracy, adequacy, usefulness, timeliness, reliability or otherwise. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 5.
6. Unauthorized Dealers and Resellers
NutraStim’s products are sometimes sold by dealers or resellers that are not authorized to do so. NutraStim does not guarantee or warrant any of the products sold by unauthorized dealers or resellers. For example, dealers and resellers that sell NutraStim’s products through online marketplaces, like Amazon.com or Ebay.com, are not affiliated with, or authorized to do so by, NutraStim. If a dealer or reseller is claiming they are authorized by NutraStim, please contact NutraStim to confirm whether that dealer or reseller is authorized or not to sell products on behalf of NutraStim. We urge you to make your purchase on our Website and otherwise use caution when making a purchase from an unauthorized dealer or reseller.
You hereby acknowledge that an unlawful resale of product(s) from our Website may subject you to liability for trademark or copyright infringement, or other causes of action. NutraStim reserves any and all remedies available to it for the unlawful resale of its products.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 6.
7. Limitation of Liability
NutraStim shall not be liable for any special or consequential damages that result from the use of, or the inability to use, the materials on this Site or the performance of the products, even if NutraStim has been advised of the possibility of such damages. Applicable law may not allow the limitation of exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.
8. Typographical Errors
In the event that a NutraStim product is mistakenly listed at an incorrect price, NutraStim reserves the right to refuse or cancel any orders placed for product listed at the incorrect price. NutraStim reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, shall issue a credit to your credit card account in the amount of the incorrect price.
9. Term and Termination
These Terms are applicable to you upon your accessing the Site and/or completing the registration or shopping process. These Terms, or any part of them, may be terminated by NutraStim without notice at any time, for any reason. The provisions relating to Copyrights, Trademark, Disclaimer, Limitation of Liability, Indemnification, Waiver, Modifications, Assignment of Rights, Governing Law and Jurisdiction, Dispute Resolution, and Limited Time to File Claims, shall survive any termination.
NutraStim may deliver notice to you by means of e-mail, a general notice on the Site, or by other reliable method to the address you have provided to NutraStim.
11. Waiver, Modifications, and Assignment of Rights
NutraStim’s failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms. NutraStim may assign its rights and duties under this Agreement to any party at any time without notice to you.
12. Use of Website
Harassment in any manner or form on the Site, including via e-mail, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others, including a NutraStim or other licensed employee, host, or representative, as well as other members or visitors on the Site is prohibited. You may not upload to, distribute, or otherwise publish through the Site any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable which may constitute or encourage a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law. You may not upload commercial content on the Site or use the Site to solicit others to join or become members of any other commercial online service or other organization.
13. Disclaimer for User-Generated Content
NutraStim does not and cannot review all communications and materials posted to or created by users accessing the Site, and is not in any manner responsible for the content of these communications and materials. You acknowledge that by providing you with the ability to view and distribute user-generated content on the Site, NutraStim is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any contents or activities on the Site. However, NutraStim reserves the right to block or remove communications or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright, trademark or; other intellectual property right of another or (d) offensive or, for any reason otherwise unacceptable to NutraStim in its sole discretion.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13.
You agree to indemnify, defend, and hold harmless NutraStim, its officers, directors, employees, agents, licensors and suppliers (collectively the "Service Providers") from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms or any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing the Site using your Internet account.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 14.
15. Third-Party Links
This Website may contain links to third-party websites. Even if the third-party is affiliated with NutraStim, NutraStim has no control over these linked sites, all of which have separate privacy and data collection practices, independent of NutraStim. These linked sites are only for your convenience and therefore you access them at your own risk. Nonetheless, NutraStim seeks to protect the integrity of its Website and the links placed upon it and therefore requests any feedback on not only its own Site, but for Sites it links to as well (including if a specific link does not work).
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 15.
16. Governing Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. Subject to the Arbitration provision set forth in Section 17, you hereby consent and submit to the personal jurisdiction in the state courts located in Tampa Bay, Florida and the federal courts located in Lee County, Florida. If any provision of these terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. Any waiver of any provision of these terms must be in writing signed by an authorized representative of NutraStim to be valid. A waiver of any provision hereunder shall not operate as a waiver of any other provision, or a continuing waiver of the same provision in the future. This is the entire agreement between us relating to the subject matter herein and shall not be modified except as noted herein.
IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN SECTION 19.
17. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION / CLASS ACTION WAIVER
In order to expedite and control the cost of disputes, you and NutraStim agree that any legal or equitable claim relating to use of this Site or the purchase of any NutraStim product from this Site (referred to as a “Claim”) will be resolved as follows:
A. Informal Resolution:
You and NutraStim will first attempt to resolve any Claim informally. In the event that any dispute between NutraStim and you arises out of or relates to these Terms, the applicability of these Terms to the use of any NutraStim Site, or purchase of any NutraStim products from this Site, or to breach or enforcement, interpretation or validity of these Terms, you and we agree to try to promptly resolve any such dispute informally. Please send a written notice describing the dispute to support@ NutraStim.com.
B. Formal Resolution by Arbitration/Class Action Waiver
READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION. You agree that any dispute, controversy or Claim arising out of or relating to these Terms, the applicability of these Terms as to the use of any NutraStim Site, or the purchase of any NutraStim products from this Site, or to breach or enforcement, interpretation or validity of these Terms, or the determination of the scope or applicability of Arbitration shall be governed solely by the Federal Arbitration Act.
If you and NutraStim cannot resolve a Claim informally, any Claim asserted by either party will be resolved only by binding Arbitration. By agreeing to Arbitration, both you and NutraStim understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes. Instead of suing in court, both you and NutraStim each agree to settle disputes (except certain small claims) only by Arbitration.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL.
The rules in Arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms as a court would. The Arbitration will be conducted under the JAMS Streamlined Arbitration Rules Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern. You may, in Arbitration, seek any and all remedies otherwise available to you pursuant to the law of the governing state. If you decide to initiate Arbitration, NutraStim agrees to pay the Arbitration initiation fee and any additional required deposit required by JAMS to initiate your Arbitration. You and NutraStim agree to pay the costs of the Arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the Arbitration, will be paid in accordance with JAMS Rules. The Arbitration will be held at a location in your home town area if possible, unless you and NutraStim both agree to another location or telephonic Arbitration. To initiate Arbitration, you or NutraStim must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS [to your local JAMS office] or to JAMS, 620 Eighth Ave., 34th Floor, New York, NY 10018].
(3) Send one copy of the Demand for Arbitration to the other party.
Special Rules in the Arbitration Proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor NutraStim shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity.
THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER.
Accordingly, you and NutraStim agree that the JAMS Class Action Procedures do not apply to our Arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable, except for the prohibition on class, representative and private attorney general arbitrations. Notwithstanding the obligation to arbitrate all Claims under these Terms, you may assert an individual Claim in small claims court in lieu of Arbitration.
18. Limited Time to File Claims
You agree that you will assert any Claim arising out of your use of any NutraStim Site or the purchase of any NutraStim product from this Site within one (1) year after the Claim arises, or such Claim will be barred.
SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 18.
19. Exclusions and Limitations; Consumer Protection Notice
If you are a consumer, the provisions in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your State of residence. If you are a New Jersey consumer, the terms of Sections 5, 6, 7, 13, 14, 15, 16, and 18 do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, NutraStim reserves all rights, defenses and permissible limitations under the law of your State of residence. Notwithstanding the foregoing, nothing in this Section shall modify Subsection 17(B) (“Formal Resolution by Arbitration/Class Action Waiver”).