Please read this Agreement carefully to ensure you understand each provision. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. (See Section IX)
This Document contains the terms and conditions of your receipt and payment for Type2Diet(™) goods and services and is subject to arbitration. THESE TERMS AND CONDITIONS APPLY TO ALL PURCHASES OF TYPE2DIET GOODS AND SERVICES.
We may update these Terms and Conditions from time to time in our sole discretion. The modified Terms and Conditions will be effective 30 days following posting and you agree to the new posted Terms and Conditions by continuing your use of the Site and/or placing an order. Each time you use the Site or place an order, you reaffirm your acceptance of the then-current Terms and Conditions, and your agreement to be bound hereby. You are responsible for staying informed of any changes and are expected to check this page from time to time so you are aware of any changes. If you do not agree with the modified Terms and Conditions, you should stop using the Site.
By using our Site, you represent that you have reached the age of majority where you live and that you have the legal ability to accept these Terms and Conditions and to use the Site in accordance with these Terms and Conditions.
IMPORTANT HEALTH INFORMATION
TYPE2DIET CONTENT IS IN NO WAY INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS CONSULT A TRAINED MEDICAL PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD MEDICAL ADVICE AS A RESULT OF SOMETHING THAT YOU MAY HAVE READ ON THE SITES AND/OR SITE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
PEOPLE WITH CERTAIN CONDITIONS MAY NOT USE THE TYPE2DIET PROGRAM; THESE INCLUDE, BUT ARE NOT LIMITED TO PEOPLE WHO: (A) ARE PREGNANT, (B) ARE ALLERGIC TO WHEAT, SOY, DAIRY, SHELLFISH, PEANUTS, OR LATEX (WHICH IS USED IN FOOD REPLACEMENT FORMULAS PROCESSING), (C) HAVE ANOREXIA OR BULIMIA, OR (D) HAVE CHRONIC KIDNEY DISEASE.
CHILDREN UNDER 14 YEARS OF AGE MAY NOT BE ON THE TYPE2DIET PROGRAM. ADOLESCENTS AGED 14-17 YEARS REQUIRE A SPECIFIC MEAL PLAN AND PHYSICIAN APPROVAL. NURSING MOTHERS ALSO REQUIRE AN ADJUSTED MEAL PLAN. MEN WEIGHING IN EXCESS OF 450 LBS. AND WOMEN WEIGHING IN EXCESS OF 400 LBS. REQUIRE DOCTOR APPROVAL TO BE ON THE TYPE2DIET PROGRAM. ANYONE CURRENTLY TAKING MEDICATION TO REDUCE BLOOD SUGAR LEVELS SHOULD CONSULT THEIR DOCTOR BEFORE BEGINNING THE TYPE2DIET PROGRAM. FOR MORE INFORMATION, RELATING TO OTHER HEALTH CONDITIONS THAT MAY REQUIRE PHYSICIAN APPROVAL, INCLUDING ADJUSTED MEAL PLANS, CONTACT THE TYPE2DIET TEAM AT SUPPORT@TYPE2DIET.COM OR 1-888-539-3188.
THE TYPE2DIET PROGRAM IS A PORTION-CONTROLLED, REDUCED-CALORIE, LOW-CARB, COMPREHENSIVE TYPE2DIET PROGRAM. PLEASE CONSULT YOUR PHYSICIAN BEFORE BEGINNING THE TYPE2DIET PROGRAM, OR ANY OTHER TYPE2DIET PROGRAM, AS CHANGING YOUR DIET OR EXERCISE, OR LOSING WEIGHT, MAY AFFECT SOME MEDICAL CONDITIONS AND MEDICATIONS. Anyone on insulin or diabetic medications who go on a low-calorie diet may be at risk of hypoglycemia (low blood sugar) if medications are not adjusted. Your physician may need to adjust your medications due to changes in your diet, exercise, or weight while on this program. You should also discuss your continued participation in the Type2Diet program with your physician if there is any change in your medical condition. For information that you can share with your physician about the Type2Diet program, contact the Type2Diet team at Support@Type2Diet.com or 1-888-539-3188.
It is important to note that medical studies indicate that people 20 percent or more above their ideal weight are at increased risk of many illnesses or diseases, including coronary heart disease, heart attacks, diabetes, increased cholesterol levels, high blood pressure, strokes, gallbladder disease, kidney disease, neurological disorders, gout, osteoarthritis, and certain types of cancer. It is also important to be aware of certain risks that have been associated with Type2Diet. Any Type2Diet program may cause constipation, muscle cramps, dehydration, diarrhea, dizziness, dry or cold skin, fatigue, gallbladder inflammation or gallstones, gout, hair loss, headaches, heart palpitations, loss of lean body mass, irregular or stopping of menstruation, reduced tolerance to cold, as well as other possible side effects. Please be sure to only use the Food Replacement Formulas that are recommended on the Type2Diet program. Failure to follow the program protocol and use the Food Replacement Formulas recommended may increase the risk of developing health complications.
Retail Products – Type2Diet Kits
There is a select group of authorized retailers and distributors that may sell or distribute Type2Diet products. Type2Diet carefully constructs, manages and maintains these exclusive channels to ensure the authenticity, freshness, quality and safety of its Type2Diet products (“Food Replacement Formulas”), along with the integrity of its brand and its goodwill with customers. You may call customer service to find our select group of authorized retailers and distributors, as the group is subject to change.
Purchase of Type2Diet Food Replacement Formulas, other than from authorized retailers and distributors, is not recommended, and is done so at your own risk.
Type2Diet Food Replacement Formulas are designed as a jumpstart to your Type2Diet program. It is recommended to continue with the Type2Diet program for best Type2Diet results. Select individual Food Replacement Formulas are available at select retailers only.
Food Replacement Formulas Substitution Policy
Although Type2Diet takes every reasonable measure to have sufficient inventory to fill your order, availability of product(s) may change without notice. Type2Diet is not responsible for unavailability of product due to popular demand, whether discontinued or still in production.
In the completion of orders, Type2Diet reserves the right to substitute a similar product. When making substitutions, Type2Diet takes great care to meet the requirements of your particular Type2Diet program. Substituted Food Replacement Formulas may contain different ingredients and allergens than those in items originally ordered. Prior to consumption, please be sure to carefully check all individual product packages for the most updated information regarding ingredients and nutritional content for any/all Type2Diet Food Replacement Formulas products, including new and improved items, if you have any Food Replacement Formulas allergies or if you are otherwise concerned about any particular ingredients.
Please Note: Type2Diet Food Replacement Formulas may contain or may have been manufactured in a facility that also processes: wheat, soy, dairy, or shellfish.
If, within thirty days of receipt of your package, there is any reason you wish to return any unopened Type2Diet Food Replacement Formula item, Type2Diet will give you a refund (less return shipping), no questions asked, that’s how confident Type2Diet is that you’ll love the Food Replacement Formulas
Returning your package
Indicate the reason for your return, include the packing slip that came with your order, and wrap the package securely. If you do not have your packing slip, please indicate the order number on a separate piece of paper, enclose in the package and send the package to the following address:
Returns Dept. 2557 Treasure Dr, Ste “B”
Santa Barbara, CA 93105
To ensure proper credit to your account, Type2Diet recommends that you use UPS, Federal Express or Insured Parcel Post for shipment. Please save your shipping receipt and your tracking information until your return is processed. If you have any further questions, please feel free to call Customer Service at 1-888-539-3188.
Credits are issued within 14 business days after your return is processed in the Type2Diet warehouse, but may not appear on your statement for 1-2 billing cycles. Refunds issued by paper check can take up to 4weeks to be processed. Shipping costs are not refundable unless it is a result of our error. Credits are issued back to the original method of payment for the returned product. Please note that Type2Diet is not responsible for any bank or credit card fees that you may incur.
Retail Purchases — Return Policy
When you purchase Type2Diet® products and services from the select group of authorized retailers and distributors, please refer to the return policies and money back policies of such authorized retailers and distributors.
III. A La Carte and Maintenance Plans
Type2Diet offers a variety of plans, including a la carte and maintenance, to its customers who are ready to take the next step in their Type2Diet journey. These comprehensive plans offer customers complete flexibility by allowing them to continue enjoying Type2Diet Food Replacement Formulas as desired. These plans offer a variety of options to customers who have reached their Type2Diet goals, or who may want to continue on the program but according to their lifestyle. These programs are available on an auto-delivery and non-auto-delivery basis. Please call or visit our website for details on these programs.
We reserve the right to modify, enhance, terminate or otherwise change particular plan benefits from time to time at our sole discretion.
IV. Gift Cards
Type2Diet sells gift cards only at select retailers for the purchase of Type2Diet products at Type2Diet.com.
To redeem Gift Cards online, enter card number and PIN (on back of card or in email) during checkout. For the most accurate account balance, please review your transaction history under your Type2Diet.com account.
Gift Cards may not be used to purchase another Gift Card or toward previously purchased merchandise. Gift Cards are for personal use only and are not for resale, or purchase of goods for resale; cannot be refunded or exchanged, or redeemed for cash, except as required by law. If you decide to return merchandise that you purchased using your Type2Diet Gift Card, the refunded amount will be sent through a paper check and will be equal to the purchase price of the gift card, less any amount that has been used. Gift Cards are non-reloadable. Gift Cards carry no expiration date (subject to applicable law). There are no fees charged for any reason.
If your Gift Card is lost, stolen or destroyed, please contact customer service at 1-888-539-3188 and provide your Gift Card number, and a new card will be issued with the remaining balance. Lost or stolen Gift Cards cannot be replaced without the original receipt. Replacement Gift Cards will be the value of the card at the time Type2Diet receives your report of loss, theft or unauthorized use. Type2Diet is not liable to you for the use of your Gift Card by a third party on your Type2Diet account. Please be sure to maintain the privacy of your Type2Diet password, as you are responsible for any activity on your account.
Type2Diet Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising or other promotional activities unless you obtain Type2Diet’s prior written approval.
If your order total is less than the amount on your Gift Card, the remaining amount will be available on your card for future purchases. If your order total is more than the amount on your Gift Card, you will need to pay for the balance with additional Gift Cards or another payment method. If you are placing an auto-delivery order and the amount on the Gift Card is more than the order total, you will still be required to provide additional payment information that will be needed for your subsequent auto-delivery order(s).
Purchase of a Gift Card constitutes acceptance of these Terms and Conditions.
V. Telephone Calls and Call Recording
Upon signing up for the program, you will be asked to provide us with a telephone number at which we can reach you. That number is required for shipping and so that Type2Diet can reach you with informational calls related to your transactions. These calls may be pre-recorded and auto-dialed and are related to the shipment and delivery of your Food Replacement Formulas, and payment reminders for your orders.
You may also opt- in to receive special offers from Type2Diet. If you do so, our trained Type2Diet representatives may call you using an automated dialing system.
Under Type2Diet’s Do Not Call Policy, Type2Diet maintains an internal Do Not Call List that you can request to be placed onto so as not to receive marketing or sales calls. If you would like to be on Type2Diet’s Internal Do Not Call list for marketing and sales calls, please contact us at email@example.com. Type2Diet shall continue to contact you for any order-related or transactional matters.
All calls to and from Type2Diet may be monitored or recorded for quality and training purposes.
VI. Your Responsibility to Protect Your Account
Type2Diet reserves the right to withdraw or amend this Site, and any service or material we provide on the Site, in its sole discretion without notice. Type2Diet will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, Type2Diet may restrict access to some parts of the Site, or the entire Site.
When you create an account, you will be asked to establish a password. You are entirely responsible for maintaining the confidentiality of your password. And you are entirely responsible for all activity made by you or anyone you allow to use your account. You agree to safeguard your account password from access by others. You agree to indemnify and hold harmless Type2Diet for losses incurred by Type2Diet or another party due to someone else using your account or password. Type2Diet has the right to disable any user name, password or other identifier, whether chosen by you or provided by Type2Diet, at any time, in its sole discretion for any or no reason, if, in our opinion, you have violated any provisions of these Terms and Conditions.
Content Posted By You
Content posted by you includes, but is not limited to, posting on Type2Diet’s social media pages. These sites contain various pages where you and others may post content ("Sites"). You may only post content to the Sites that you created or which the owner of the content has given you permission to post. You may not post or distribute content that is illegal or that violates these Terms and Conditions. By posting or distributing content to the Sites, you represent and warrant that (a) you own all the rights to the content or are authorized to use and distribute the content to these Sites and (b) the content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation.
You should carefully choose the information you post on the Sites. Any content that you post to the Sites will be considered non-confidential and non-proprietary. You may not post the following items: telephone numbers, street addresses, last names, URLs to external sites, any form of HTML or programming code, or any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit, or otherwise objectionable subject matter. You are solely responsible for anything you may post on these Sites and the consequences of posting anything on these Sites.
Type2Diet is not responsible, or liable to any third party, for the content or accuracy of any content posted by you or any other user of the Sites.
Content Posted By Others
Type2Diet is not responsible for, and does not endorse, content in any posting made by others on the Sites. You are solely responsible for your reliance on anything posted by others on the Sites. Under no circumstances will Type2Diet be held liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you or any third party in connection with the use of or reliance of any content posted by a third party on the Sites. If you become aware of misuse of the Sites by any person, please contact Type2Diet at firstname.lastname@example.org.
If you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. Type2Diet has the right to remove any user contributions from these Sites for any or no reason. Type2Diet reserves the right to take necessary legal action against users.
Activities Prohibited on the Sites
The following is a partial list of the types of conduct that are illegal or prohibited on the Sites. Type2Diet reserves the right to investigate and take appropriate legal action against anyone who, in Type2Diet’s sole discretion, engages in any of the prohibited activities on the Sites. Prohibited activities include, but are not limited to, the following:
· Posting material that infringes the intellectual property rights, privacy rights, publicity rights, trade secret rights, or any other rights of any party;
· Posting material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by Type2Diet in its sole discretion. Type2Diet takes no responsibility for monitoring such content or in evaluating it;
· Posting advertisements or solicitations of business;
· After receiving a warning, continuing to disrupt the normal flow of dialogue, or posting comments that are not related to the topic being discussed (unless it is clear the discussion is free-form);
· Posting chain letters or pyramid schemes;
· Impersonating another person;
· Distributing viruses or other harmful computer code which is malicious or technologically harmful;
· Harvesting or otherwise collecting information about others, including email addresses, without their consent;
· Allowing any other person or entity to use your identification for posting or viewing comments;
· Posting the same note more than once or "spamming;"
· Harassing, threatening, stalking, or abusing any person;
· Attempting to gain unauthorized access to, interfere with, damage or disrupt any parts of the Sites or Site, the server on which the Sites or Site is stored, or any server, computer or database connected to the Sites or Site; or
· Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Sites or Site, or which, in the sole discretion of Type2Diet, exposes Type2Diet or any of its customers or suppliers to any liability or detriment of any type.
Monitoring and Enforcement; Termination
Type2Diet reserves the right, but is not obligated, to do any or all of the following:
· Record the dialogue or content posted on any pages of the Sites;
· Investigate an allegation that anything posted on the Sites does not conform to these Terms and Conditions and determine in its sole discretion to remove or request the removal of the posting;
· Remove postings which are abusive, illegal, or disruptive, or that otherwise fail to conform with these Terms and Conditions;
· Terminate your access to the Sites upon any breach of these Terms and Conditions (either directly or through breach of any other terms and conditions or operating rules applicable to you);
· Monitor, edit, or disclose any posting on the Sites; and
· Edit or delete any communications posted on the Sites, regardless of whether such communications violate these standards; or
· Type2Diet may disclose your information including personal identity and other personal information to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Without limiting the foregoing, Type2Diet has the right to fully cooperate with any law enforcement authorities or court order requesting or directing Type2Diet to disclose the identity or other information of anyone posting any materials on or through the Site or any Sites. YOU WAIVE, AND HOLD HARMLESS TYPE2DIET FROM, ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY TYPE2DIET DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ANY OF TYPE2DIET, LAW ENFORCEMENT AUTHORITIES OR OTHER THIRD PARTIES.
Type2Diet does not undertake to review any materials before you have posted them on the Sites, and cannot ensure prompt removal of objectionable material after it has been posted. Type2Diet assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. Type2Diet has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
Type2Diet has the right to terminate your access to the Site or Sites for any reason, including, without limitation, if Type2Diet, in its sole discretion, considers your use to be unacceptable. Type2Diet may, but shall not be under no obligation to, provide you a warning prior to termination of your use of the Site or Sites.
VII. Type2Diet Intellectual Property
The entire contents of the Site or Sites are copyrighted as a collective work under the laws of United States and other copyright laws. Type2Diet holds the copyright in the collective work. The collective work includes works which may be property of other members. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of the Site or Sites solely for your own non-commercial use, unless otherwise permitted (e.g., in the case of electronic coupons, etc.). Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from the Site or Sites.
The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Type2Diet or its affiliates, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms and Conditions permit you access to the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works from, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site.
You must not (i) modify copies of any materials from the Site; (ii) use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text, and (iii) delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Site. You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Site in breach of the Terms and Conditions, your right to use the Site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Type2Diet. Any use of the Site not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark and other laws.
The Type2Diet (™) name, logo and all related names, logos, product and service names, designs and slogans are trademarks of Type2Diet (™) or its affiliates or licensors. You must not use such marks without the prior written permission of Type2Diet (™). All other names, logos, product and service names, designs and slogans on this Site are the trademarks of their respective owners.
If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access thereto) from this Site by contacting Type2Diet (as set forth below) and providing the following information:
· Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible, include a copy or the location (g., URL) of an authorized version of the work.
· Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
· Your name, address, telephone number, and email address.
· A statement that you have a good faith belief that the complained use of the materials is not authorized by the copyright owner, its agent, or the law.
· A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
· A signature or the electronic equivalent from the copyright holder or authorized representative.
Send this information by e-mail to email@example.com. In an effort to protect the rights of copyright owners, Type2Diet maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Site who are repeat infringers.
VIII. Changes to the Site
Type2Diet may update the content on this Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and Type2Diet is under no obligation to update such material.
Information About You and Your Visits to the Site
Online Purchases and Other Terms and Conditions
All purchases through this Site or other transactions for the sale of goods or services or information formed through the Site or as a result of visits made by you are governed by these Terms and Conditions.
Additional terms and conditions may also apply to specific portions, services or features of the Site. All such additional terms and conditions are hereby incorporated by this reference into these Terms and Conditions.
Links from the Site
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Type2Diet has no control over the contents of those sites or resources, and accepts no 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 websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Type2Diet may disable all or any social media features and any links at any time without notice in our discretion.
TYPE2DIET CONTENT IS IN NO WAY INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS CONSULT A TRAINED MEDICAL PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD MEDICAL ADVICE AS A RESULT OF SOMETHING THAT YOU MAY HAVE READ ON THE SITES AND/OR SITE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
The Sites and/or Site and the content are provided on an "as is" and "as available" basis. TO THE FULLEST EXTENT PERMITTED BY LAW, TYPE2DIET, ITS LICENSORS, AND ITS SUPPLIERS, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. Type2Diet makes no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the Sites and/or Site. Type2Diet cannot and does not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. Type2Diet cannot and does not guarantee or warrant that files available for downloading from these Sites and/or Site will be free of infection by viruses, worms, Trojan horses, or other codes that manifest contaminating or destructive properties. Type2Diet cannot and does not guarantee or warrant that any content you post on the Sites will remain on the Sites. Type2Diet does not warrant or guarantee that the functions or services performed on the Sites and/or Site will be uninterrupted or error-free or that defects in the Sites and/or Site will be corrected.
The Sites and/or Site may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Type2Diet, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Type2Diet. Type2Diet is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Limitation of Liability
TYPE2DIET’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH TYPE2DIET IS TO DISCONTINUE YOUR USE OF THE SITE. TYPE2DIET AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITES AND/OR SITE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITES AND/OR SITE. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR HEALTH-RELATED ISSUES, LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF TYPE2DIET HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, TYPE2DIET’S AND ITS VENDORS’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend, and hold Type2Diet, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these Terms and Conditions or your use of the Sites and/or Site, including, but not limited to, any content that you may post, any use of the Sites’ and/or Site’s content, services and products other than as expressly authorized in these Terms and Conditions or your use of any information obtained from the Sites and/or Site.
IX. Resolving Disputes — Arbitration
Most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing our customer service department at firstname.lastname@example.org. If Type2Diet’s customer service department is unable to resolve a complaint you may have to your satisfaction (or if Type2Diet has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.
All disputes or claims that arise under or relate to these Terms and Conditions (whether in contract, tort or otherwise, whether past, pre-existing, or future, and including statutory, consumer protection, common law, intentional tort, injunctive, and equitable claims) will be resolved either in small claims court or by individual arbitration in accordance with the rules of the American Arbitration Association ("AAA"). Unless you and Type2Diet agree otherwise, any arbitration hearings will take place in the county of Santa Barbara, State of California. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879. Type2Diet agrees that it will pay a consumer’s filing fee for the arbitration.
You agree to arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR TYPE2DIET SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. This transaction and the arbitration shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA).
Waiver and Severability
No waiver by Type2Diet of any of the terms and conditions set forth in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Type2Diet to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect.
Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. 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”). Message and data rates may apply.
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 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.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. 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. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform 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 or engaging with the Platform, 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 or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. 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.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Santa Barbara, California before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Type2Diet’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
Type2Diet may deliver notice to you under these Terms and Conditions by means of electronic mail, a general notice on the site, or by written communication delivered by first class U.S. mail to your address on record in your Type2Diet account. You may give notice to Type2Diet at any time via electronic mail or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address:
Butterfly Nutritional Laboratories INC, a Delaware Corporation,