Terms and Conditions
By accessing this Site, you are agreeing that you have read, and agree to comply with and be bound by, the terms of this Agreement in their entirety without limitation or qualification as well as all applicable laws and regulations. If you do not agree to be bound by the terms and conditions of this Agreement and to follow all applicable laws, do not access or use this Site or purchase Products.
This Agreement contains an agreement to arbitrate, under which: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
THIS SITE INCLUDES NUTRITIONAL INFORMATION AND THAT INFORMATION IS INTENDED FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED AS DIETARY OR MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT AND IT DOES NOT REPLACE THE NEED FOR SERVICES PROVIDED BY A MEDICAL PROFESSIONAL, SUCH AS A NUTRITIONIST OR DIETITIAN.
YOU SHOULD SEEK THE ADVICE OF A MEDICAL PROFESSIONAL BEFORE STARTING ANY DIETARY PROGRAM TO ENSURE IT IS SUITABLE FOR YOUR SPECIFIC DIETARY NEEDS. WE DO NOT SUGGEST OR REPRESENT THAT ANY OF OUR PRODUCTS HAVE BEEN APPROVED FOR YOUR INDIVIDUAL USE BY A MEDICAL PROFESSIONAL.
ON BEHALF OF YOUR EXECUTORS, ADMINISTRATORS, HEIRS, NEXT OF KIN, SUCCESSORS, AND ASSIGNS, YOU HEREBY: (A) WAIVE, RELEASE, AND DISCHARGE FROM ANY AND ALL LIABILITY FOR YOUR DEATH, DISABILITY, PERSONAL INJURY, PROPERTY DAMAGE, PROPERTY THEFT, OR ACTIONS OF ANY KIND WHICH MAY HEREAFTER OCCUR TO YOU, THE FOLLOWING ENTITIES OR PERSONS: BARE PERFORMANCE NUTRITION, LLC, ITS AFFILIATED ENTITIES, ITS AND THEIR DIRECT AND INDIRECT OWNERS, AND EACH OF ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS; AND (B) INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE THE ENTITIES OR PERSONS MENTIONED ABOVE FROM ANY AND ALL LIABILITIES OR CLAIMS MADE AS A RESULT OF YOUR USE OF THIS SITE OR OUR PRODUCTS. THIS RELEASE SHALL BE CONSTRUED BROADLY TO PROVIDE A RELEASE AND WAIVER TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
By clicking “I accept,” otherwise electronically consenting to use the SITE, or accessing or using the Site or purchasing any Product:
- You acknowledge that you’ve read, understood, and accept the terms in this Agreement and any additional documents or policies referred to in or incorporated into this Agreement;
- If the terms in this Agreement have materially changed since you last accessed or used the Site or purchased a Product, you acknowledge and agree that your continued access or use of the Site constitutes your acceptance of the changed terms; and
- You consent to receive communications, including text or SMS messages as described below, from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
1. License Grant
Subject to the terms and conditions of this Agreement, we hereby grant you a limited, non-exclusive, non-transferable, license to access the Site solely for your own use. The license granted herein is expressly conditioned on your continued compliance with the terms and conditions of this Agreement.
This Agreement permits you to use the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the content on the Site, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (collectively, the “Content”) on the Site, except as follows:
• You may temporarily store copies of such Content on your computer incidental to your accessing and viewing those materials;
• You may store files that are automatically cached by your web browser for display enhancement purposes; and
• You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
You must not:
• Modify copies of any Content on this Site;
• Use any Content on the Site separately from the accompanying text; or
• Delete or alter any copyright, trademark, or other proprietary rights notices from this Site.
If you wish to make any use of the Content other than that set out in this section, please address your request to the contact information provided below.
2. Restrictions on License Grant
Your use of the Site is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Site other than as provided herein. You acknowledge that the Site constitutes a valuable asset of ours. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
(a) You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Site or the Content or use the Site to run, or as part of, a service bureau, outsourced, or managed services arrangement;
(b) You shall not copy, reproduce, republish, upload, post, transmit or distribute the Site or the Content in any way;
(c) You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Site or the Content;
(d) You shall not knowingly or negligently permit other individuals or entities to use or copy the Site, or create Internet “links” to the Site or “frame” or “mirror” the Site on any other server or wireless or Internet-based device;
(e) You shall not access the Site for any reason, including without limitation, in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Site, (iii) copy any ideas, features, functions or graphics of the Site, (iv) monitor its availability, performance or functionality, or (v) for any benchmarking or competitive purposes;
(f) You shall not attempt to use or gain unauthorized access to our data, accounts, hosts, systems or networks or any of our customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
(g) You shall not attempt to probe, scan or test the vulnerability of a system, account or network of ours or any of our customers or suppliers;
(h) You shall not interfere, or any attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the software which operates the Site;
(i) You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to us or the Site, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
(j) You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Site (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
(k) You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Site or any of our (or our suppliers’) host, server, backbone network, node or service, or otherwise cause a performance degradation to any of our (or of our suppliers’) facilities used to deliver the Site; and
(l) You shall not create or use any program, tags, markers, bots, mousetraps, hijackers or other similar computer routines or sub-routines to automatically access or manipulate the Site.
Because of the difficulty associated with quantifying damages, in addition to any other damages to which we may be entitled, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages of $250 for each violation of this Section or the maximum liquidated damages permitted under law, whichever is greater; and you agree to pay us actual damages, to the extent such actual damages can be reasonably calculated.
3. Intellectual Property Ownership
All right, title and interest in the Site and the Content, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to us or our licensors, and you shall have no rights whatsoever in any of the foregoing. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Site, the Content or the Materials, in whole or in part. All Content is copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and we own a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Content, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause us and our licensors irreparable injury, which may not be remedied at law, and you agree that our and our licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The names BARE PERFORMANCE NUTRITION, GO ONE MORE and other common law or registered trademarks used on this Site by us, along with their associated logos, related names, design marks, product names and feature names are our trademarks and may not be used, copied or imitated, in whole or in part, without our express prior written permission. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) constitutes our service mark, trademark and/or trade dress and may not be copied imitated or used, in whole or in part, without our express prior written permission.
5. Account Access
If use of all or any part of the Site is contingent on you and your users accessing an “account” and/or inserting a “user-identification” and/or “password”, you agree that you will be solely responsible for the user-ids and passwords that are provided to you (as such passwords may be changed from time to time in accordance with features of the Site) to log-in to the password protected Site. If non-authorized individuals have access to your systems or to your users’ user-id and password, they may be able to use the Site. You shall keep any correspondence you receive relating to or through the use of the Site (including, but not limited to, your user-id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your user-ids, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent.
6. Reviews, Comments and Postings
Any product review, post or, e-mail in regard to a product or a review are considered non- confidential and non-proprietary and we have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such submissions. All submissions shall automatically become our sole and exclusive property and shall not be returned to you. We also reserve the right to delete, edit or suspend any comment, review or post.
7. Prohibited Content
You acknowledge and agree to not post any prohibited content through the Site. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by applicable law in the jurisdiction from which the message is sent.
8. Term and Termination
(a) Term. These User Terms begin on the day you click “I accept” or otherwise indicate your assent and continue until one party terminates this Agreement pursuant to the below subsection (b) or (c) (the “Term”).
(b) Termination by You. You may terminate these User Terms at any time by discontinuing your use of the Site.
(c) Termination by Us. We may close your Account, suspend your ability to use certain portions of the Site, and/or ban you altogether from the Site for any or no reason, and without notice or liability of any kind.
(d) Survival. All provisions of this Agreement survive termination, including without limitation the limitations of liability.
9. Age Restriction
You may not use the Site or purchase Products if you are under thirteen (13) years of age. If you use the Site and purchase Products and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using the Site or purchasing Products, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use the Site and/or purchase Products, or are of adult age in your jurisdiction. By using the Site or purchasing Products, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable law to use and/or engage with the Site.
10. Messaging Terms & Conditions
We offer a mobile messaging program (the “Program”), which you agree to use and participate in subject to this Agreement. By opting into or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Governing Law and Arbitration” section below. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program.
- User Opt In. You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from us, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. By providing your phone number, you represent and warrant that you are providing your own phone number, and not someone else’s, and that you are a legally-authorized user of this phone number. Consent to receive automated marketing text messages is not a condition of any purchase. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”).
- User Opt Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description. Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, customer support, delivery (including order confirmations, tracking information, and shipping updated via email), other transactional-related messages and sale of our products. Messages may include checkout reminders.
- Message Frequency, Cost and Changes. Message and data rates may apply. You agree to receive messages periodically at our discretion. Daily, weekly, and monthly message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. We also reserve the right to change the short code or phone number from which our messages are sent.
- Support Instructions. For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
- MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty. The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. Carriers are not liable for delayed or undelivered mobile messages.
- Supported Devices. The Program is offered on an “as-is” basis. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Bare Performance Nutrition, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
11. Links to Other Sites
As is typical online, the Site may contain hyperlinks to other websites and/or resources that are not controlled or operated by us (“Third-Party Sites”). If there are Third-Party Sites linked to on the Site, either by us or by you, these links are provided only for the convenience of our users. We have no control over the contents of Third-Party Sites, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the Third-Party Sites linked to the Site, you do so entirely at your own risk and subject to this Agreement and the terms and conditions of use for such websites.
12. Notice for California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to the email address provided below or my mail to the mailing address provided below. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SITE IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, INCLUDING OUR AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “BPN PARTIES”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SITE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING NON-INFRINGEMENT AND ACCURACY; (B) NEITHER WE NOR ANY BPN PARTY WARRANTS THAT THE SITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) WE AND THE BPN PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF THE INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SITE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK AND NEITHER WE NOR ANY OF THE BPN PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
IF NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION IS PROVIDED THROUGH THE SITE, WE DO NOT REPRESENT OR WARRANT THAT SUCH INFORMATION IS ACCURATE OR COMPLETE. ON OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS AND UPDATE THEIR LABELS. YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PRESENTED THROUGH OUR SITE AND YOU SHOULD CONSULT EACH PRODUCT'S LABEL OR CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY CONCERN OR QUESTION ABOUT A PRODUCT.
14. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. WE SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL OUR MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THE SITE, THE PRODUCTS AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF (I) THE AMOUNT YOU PAID FOR PRODUCTS IN CONNECTION WITH THE DISPUTED ORDER, AND (II) $100. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SITE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
You knowingly, and voluntarily do hereby indemnify, release, acquit, waive, forever discharge, and covenant not to sue us and/or the BPN Parties from and against any and all liabilities, costs and expenses (including without limitations, any reasonable fees and expenses of its attorneys and consultants) relating to or arising out of any claims, demands or causes of action of every kind and character as a result of your use of this Site, the Content or any Products offered by us through the Site.
16. Governing Law and Arbitration
This Site is controlled by us from our corporate offices in Round Rock, Texas, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these jurisdictions have laws that may differ from the laws of the State of Texas, by accessing the Site both you and we agree that the statutes and laws of Texas, without regard to the conflicts of laws principles thereof, will apply to all matters relating to use of this Site. This site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this site outside the United States, you are responsible for complying with your local laws and regulations.
We and you agree to arbitrate all disputes and claims between us except for (i) claims seeking injunctive relief in connection with our intellectual property, and (ii) claims for amounts less than $10,000. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this Agreement.
You agree that, by entering into this Agreement, you and we are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless we and you agree otherwise, any arbitration hearings will take place in Austin, Texas. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The payment of arbitration fees will be governed by the AAA rules.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
If your claim is for $10,000 or less, you agree that any such disputes will be resolved through the courts located in Austin, Texas.
17. DMCA NOTICE – Notice and Procedure for Making Claims of Copyright Infringement
Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found through the Services can be identified and removed using the process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. We do not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, we will respond by either taking down the allegedly infringing content or blocking access to it. We may contact the notice provider to request additional information. Under the DMCA, we are required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send us a counter-notification. Notices and counter-notices are legal notices distinct from other regular activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.
A DMCA notice must:
1. Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”);
2. Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on our Service. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
3. Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
4. If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
5. Include the following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
6. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”;
7. Be signed; and
8. Be sent to address appearing at the bottom of this Agreement.
18. Modification to Terms
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when posted, and apply to all access to and use of the Site thereafter. However, any changes to the dispute resolution provisions set out below will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Site. Your continued use of the Site following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
(a) As stated above, this Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Site, with the exception of claims for injunctive relief, shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
(b) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.
(c) No joint venture, partnership, employment, or agency relationship exists between you and us as a result of this agreement or use of the Site. Our failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
(d) If you have not entered into another agreement with us regarding the subject matter contained herein, then this Agreement comprises the entire agreement between you and us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. However, if you and we have entered into another agreement regarding the subject matter set forth herein that is a written and signed agreement between you and us, then this Agreement should be read and interpreted in conjunction with such agreement and, in the event of a conflict between this Agreement and a written, signed agreement between the parties, the written, signed agreement shall govern and control.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com, send mail to Bare Performance Nutrition, LLC at 3161 Eagles Nest Street Suite 360, Round Rock TX 78665, or call at (512) 420-7648.
UPDATED DEC _ 2022