Effective Date: February 12, 2014
DEFENSE NUTRITION MAY, FROM TIME TO TIME, AND RESERVES THE RIGHT TO WITHIN ITS SOLE AND ABSOLUTE DISCRETION, MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT ON A REGULAR BASIS TO KEEP YOURSELF INFORMED OF ANY MODIFICATIONS. IN THE EVENT DEFENSE NUTRITION MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.
1. Warranties and Representations
You warrant and agree that you have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that you are a human individual that is eighteen (18) years of age or older. You warrant that you will not access the Website through automated or non-human means, whether through a bot, script, or otherwise. You warrant that you are not prohibited from assenting to this Agreement by any preexisting agreement. If you are using the Website on behalf of a third party, including but not limited to a business entity, you warrant that you are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.
2. No Medical Advice
Statements made on Defense Nutrition’s Website have not been evaluated by the Food and Drug Administration (FDA). Defense Nutrition’s products are not intended to diagnose, treat, cure or prevent any disease. Defense Nutrition makes no representations as to the safety, effectiveness, adequacy, accuracy, availability, prices, ratings, reviews, or legality of the information contained on its Website or any other goods or services displayed on or offered through the Website.
Information on this Website, including, without limitation, as part of the Defense Nutrition Blog, is provided for information purposes only and is not meant to substitute for the advice provided by your own physician or medical professional. You should not use the information contained on the Website for diagnosing or treating a health problem or disease or prescribing any medication. It is not the intention of Defense Nutrition to provide specific medical advice, including diagnosis or treatment. Specific medical advice will not be provided, and Defense Nutrition urges you to consult with a qualified doctor, physician or medical professional for diagnosis and for answers to your health-related questions. Nothing contained on the Website is intended to be for medical diagnosis or treatment. The information should not be considered complete or up to date, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of licensed doctor, physician or other qualified health care provider. If you have a medical emergency, contact your doctor or 911. Defense Nutrition does not recommend or endorse any specific treatment, tests, physicians, products, procedures, opinions, or other information on the Website. Your reliance upon any information provided by Defense Nutrition and/or on its Website is solely at your own risk. You understand and agree that the content of this Website does not contain or constitute representations to be reasonably relied upon, and you agree to hold Defense Nutrition harmless for any errors, omissions, or misrepresentations contained within the Website's content.
3. Ownership of Website Content
You understand and agree that Defense Nutrition is the owner, or licensee, of all rights in and to the Website and its associated content, including but not limited to all intellectual property and any other property or proprietary rights. The Website is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement. Specifically, and except where otherwise allowed under this Agreement, you are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website, whether in whole or in part, without the prior written consent of Defense Nutrition. The foregoing prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with the robots.txt file.
Defense Nutrition hereby grants you a limited, non-exclusive, non-sublicensable, royalty free, non-assignable, and revocable license to use the Website for its customary and intended purposes, which in no event shall be for anything other than personal, non-commercial use absent written permission from Defense Nutrition. Use of the Website for a use outside of its customary and intended purposes or in violation of the terms of this Agreement shall result in the automatic termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to Defense Nutrition.
4. User Generated Content
Defense Nutrition may provide you with the ability to submit user generated content to or through the Website, which may include, but is not limited to: (1) posts in an online forum that may contain information, text, and comments; articles; photographs, images and designs; and other information; (2) information, news, and/or alerts; and (3) text, photographs, characters, images, and designs for the creation of your own customized merchandise (collectively “User Generated Content”). You agree that you are the owner of, or have rights to, any and all User Generated Content submitted. You further warrant that any User Generated Content that you submit to the Website will not violate or infringe upon the rights of third parties, including, but not limited to, trademark rights, copyright rights, patent rights, rights of publicity and privacy, and any other intellectual property right, personal right, or proprietary or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
By submitting information to the Website, you grant Defense Nutrition a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your information for the customary and intended purposes of the Website. These purposes may include, but are not limited to, providing you or third parties with the Website or its associated services and archiving or making backups of the Website. By submitting information to the Website, you further agree to waive all rights of publicity or privacy with respect to the information submitted. You agree to execute any and all documents requested by Defense Nutrition and shall cooperate in any endeavor Defense Nutrition makes to obtain the necessary rights to display your information.
This provision shall survive any termination of this Agreement for the maximum period permitted under applicable law.
5. Third Party Links
You understand that the Website may contain links to third party websites, applications, or services that Defense Nutrition does not own or control. You agree that Defense Nutrition will not be held responsible or liable for the content of third party websites, applications, or services and that Defense Nutrition’s inclusion of those websites, applications, or services within its Website does not constitute Defense Nutrition’s endorsement of, recommendation of, or affiliation with any of those websites, applications, or services. You understand and agree that should you create merchandise through Defense Nutrition, your merchandise may be displayed via the Internet on mobile devices, search engines, and web merchants and online retail websites.
6. My Account
Members shall not pay a fee for registration of a Member Account, however Members may have to pay a fee in order to access or use additional services associated with the Website.
You may only use your Member Account and you are expressly prohibited from providing additional parties with access your Member Account. You agree that, in registering a Member Account, you will provide Defense Nutrition with accurate, complete, relevant, and current information, and maintain the same. You are solely responsible for maintaining the security and confidentiality of your username and password and for any access to your Member Account, whether authorized or unauthorized. In the event your Member Account is accessed without your authorization, you agree to immediately provide notice to Defense Nutrition. By creating a Member Account, you agree that Defense Nutrition may contact you by any available means, including, but not limited to, by email.
For any product purchased through or paid service offered through the Website, Defense Nutrition accepts payment via credit card. You agree to pay all fees and charges on time, and Defense Nutrition may terminate or disable your access to the Website or your Member Account if you fail to pay any amount owing to Defense Nutrition when due. You agree that you will pay all costs of collection, including legal fees, incurred by Defense Nutrition.
You agree to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website. All costs and fees are quoted and payable in United States Dollars. You agree that you will not initiate any chargebacks to Defense Nutrition unless otherwise authorized by Defense Nutrition in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Defense Nutrition.
In the event you dispute the amount or validity of any payments made under this Agreement, you must notify Defense Nutrition, in writing, within ten (10) days of any such dispute. You understand that your failure to notify Defense Nutrition of any dispute within ten (10) days will constitute your express waiver of any claims related to the disputed payment.
Defense Nutrition reserves the right at any time to modify or discontinue the Website or any of its associated services without notice and in its sole and absolute discretion. Defense Nutrition reserves the right at any time to modify the price charged for the services offered through the Website.
8. Acceptable Uses
You agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.
Specifically, you are prohibited from, without limitation:
Your violation of any term or condition of this section may result in the immediate termination of your Member Account and the disabling of your access to the Website.
9. Section 230 of Communications Decency Act
You acknowledge and agree that Defense Nutrition is an interactive computer service provider under Section 230 of the Communications Decency Act. Though Defense Nutrition may edit, remove, or control the content displayed through the Website, you agree that Defense Nutrition will not be considered an information content provider for any User Generated Content or third party content and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website or otherwise. Defense Nutrition may, within its sole and absolute discretion, remove any User Generated Content, including, without limitation, workout videos and articles for any reason and for no reason at all.
11. Copyright Policy
Defense Nutrition’s Website and its associated content and services are © 2014 Defense Nutrition, LLC.
Defense Nutrition respects the intellectual property rights of others and is committed to helping third parties protect their rights. Users are prohibited from posting content that violates another party's intellectual property rights. Unless otherwise stated, this Website and all content within this site are the property of Defense Nutrition as owner or authorized licensee and are protected by copyright and other intellectual property laws.
By using this Website, you agree that you will not use any devices, software or automated programs such as spiders, crawlers or robots to systematically index, aggregate, download, harvest or re-publish any of its content or information.
If you believe that a user of Defense Nutrition’s Website has infringed upon your copyright rights, please provide Defense Nutrition with a notice of copyright infringement in compliance with § 512 of the Digital Millennium Copyright Act. Once Defense Nutrition receives a notice of copyright infringement in compliance with § 512, we will act with commercial reasonableness to remove or disable access to the allegedly infringing content. Defense Nutrition will also make a good faith attempt to notify the owner or uploader of the allegedly infringing content. The owner or uploader may respond to Defense Nutrition with a counter-notification if they believe the content subject to a notice of copyright infringement was not infringing any intellectual property rights.
The notice of copyright infringement must be in compliance with § 512 of the Digital Millennium Copyright Act and must also contain the following:
Conversely, if you are a Website user that believes that content subject to a notice of copyright infringement is not actually infringing, you may submit a counter-notification. The counter-notification must contain the following:
Notifications of copyright infringement and counter-notifications may be submitted to Defense Nutrition’s Copyright Agent: Traverse Legal, PLC, 810 Cottageview Drive, Suite G-20, Traverse City, Michigan 49684; with a copy via email to email@example.com.
12. Disclaimer of Warranties
DEFENSE NUTRITION DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIAIBLITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR ANY PRODUCTS OR GOODS SOLD THEREON AND SERVICES OFFERED THEREIN. DEFENSE NUTRITION PROVIDES THE WEBSITE ON AN AS-IS BASIS AND WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.
DEFENSE NUTRITION WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY USER-GENERATED OR OTHER CONTENT POSTED ON THE WEBSITE, ANY THIRD PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. DEFENSE NUTRITION DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS, OR ALTERATION OF OR TO THE WEBSITE. DEFENSE NUTRITION RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.
13. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT DEFENSE NUTRITION WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR DAMAGES, CLAIMS, INJURIES, JUDGMENTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE OR GOODS OR SERVICES LINKED TO THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT DEFENSE NUTRITION CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCES IS THE AMOUNT THAT YOU PAID FOR ANY SERVICE PROVIDED THROUGH THE WEBSITE. IF NO AMOUNT IS PAID BY YOU TO DEFENSE NUTRITION FOR THE WEBSITE AND/OR MEMBER ACCOUNT, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
You agree to hold harmless, indemnify, and defend Defense Nutrition, its officers, employees, agents, successors, and assigns, from any and all claims, demands, losses, damages, rights, and actions of any kind, including without limitation property damage, infringement, personal injury, and death, that either directly or indirectly arises out of or is related to your use of the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party. Your obligation to defend Defense Nutrition under the terms of this Agreement will not provide you with the right to control Defense Nutrition’s defense, and Defense Nutrition reserves the right to control its defense regardless of your contractual requirement to defend Defense Nutrition.
You hereby understand and agree that you are prohibited from assigning your rights and obligations under this Agreement. Defense Nutrition may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of or other transaction involving the Website.
16. Resolution of Disputes
This Agreement will be interpreted under and governed by the laws of the State of California without giving effect to any conflicts of laws principles.
YOU AND DEFENSE NUTRITION AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN ATLANTIC CITY, TEXAS AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF CALIFORNIA AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND DEFENSE NUTRITION AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF CALIFORNIA IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND DEFENSE NUTRITION AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
17. Miscellaneous Provisions
A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.
The Website is not directed to persons under the age of eighteen (18) and Defense Nutrition will not knowingly collect personally identifiable information from children under the age of eighteen (18). If Defense Nutrition inadvertently collects personally identifiable information, Defense Nutrition will delete the personally identifiable information in accordance with its security protocols.
DEFENSE NUTRITION AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST OWNER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONTEARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
All rights not expressly granted herein are reserved to Defense Nutrition.
Any notice required under this Agreement must be made in writing to Defense Nutrition, LLC, P.O. Box 5028, Woodland Hills, CA 91367-5028; with a copy via email to firstname.lastname@example.org.
Prop 65 Disclaimer
To our valued customers in California, in compliance with Prop 65 legislation that purports to limit consumer exposure to certain chemicals, Defense Nutrition has placed the following Prop 65 Warning on a selection of products sold in California:
WARNING: ChocoWhey varieties and Enrobed Nibs, ChocoVegan variety and Enrobed Nibs, detox formulas, Muscle & Body recovery. Virilman, Thyrolyn, EstroX contains naturally occurring lead and/or cadmium, which are known to the State of California to cause birth defects or other reproductive harm.
Lead and cadmium are naturally-occurring minerals found in the earth’s soil, rivers, streams and sources of drinking water and can sometimes occur in plant-based food ingredients. Due to our sourcing of 100% natural whole food ingredients, some of Defense Nutrition’s products contain trace amounts of many minerals and metals, including lead and cadmium. California, pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) has established a Maximum Allowable Dose Level (MADL) for lead at 0.5 mcg per day, and for orally consumed cadmium at 4.1mcg per day. One recommended serving of this product contains lead and/or cadmium at levels at or slightly above these levels. None of Defense Nutrition’s products aside from the list above contains more than 0.5 mcg of lead or more than 0.5 mcg of cadmium in a single serving.
Defense Nutrition takes pride in the quality of its products and we are committed to the health and safety of our customers. We are confident in our products and firmly believe that the trace amounts of naturally occurring lead and cadmium that may be present do not present any risk to our consumers’ health.
We at Defense Nutrition and our families use these products everyday, just as you are. Defense Nutrition is committed to continue sourcing only the purest wholesome ingredients and provide cutting edge products tested and analyzed for premium quality and nutritional integrity.
This Agreement is enforced by the Internet lawyers of Traverse Legal, PLC