TERMS AND CONDITIONS
Effective Date: 12/14/2018
IMPORTANT NOTICE: PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
UNDER THIS AGREEMENT, WE EACH AGREE TO RESOLVE ALL DISPUTES EITHER THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
TERMS AND CONDITIONS:
NAC Marketing Company, LLC (“NAC”), a maker and retailer of various vitamins, dietary supplements, and other products sold on the New Vitality website at www.newvitality.com and other sites where these terms and conditions are posted (individually and collectively, the “Sites”), maintains these Sites and sends promotional messages to consumers by instant messaging, text, e-mail, telephone, direct mail, and other communication channels (“Promotions”).
These terms and conditions apply to all visitors to the Sites, all recipients of all Promotions, and all purchasers of products or services made or sold by NAC, and any person who provides their personal information to NAC, whether in connection with a purchase of a product, request for information, or otherwise (each referred to as “You”), together with their heirs, successors, and assigns. References to NAC include all service providers and vendors of NAC, together with NAC’s agents, representatives, attorneys, employees, subsidiaries, affiliates, predecessors in interest, heirs, successors, or assigns of NAC or those otherwise acting on NAC’s behalf.
By accessing or using this website, ordering or buying our products or services, or agreeing to receive promotions, you agree to be bound by these terms and conditions. If you are not willing to be bound by these terms and conditions, including the disclaimers, do not use the Sites or buy products or services from us.
If you do not agree in any way to these terms and conditions, you must return any product purchased for a refund within 30 days of the date of delivery of the product either to NAC (if you purchased it from NAC) or the location from which it was purchased pursuant to that seller’s return policy, whichever is applicable.
CHANGES TO TERMS AND CONDITIONS
The date of these terms and conditions is noted under the “terms and conditions” heading above. Please check these terms and conditions periodically for changes. Your continued use of the Sites following the posting of changes to these terms and conditions will mean you accept those changes.
ARBITRATION AGREEMENT AND WAIVER OF CLASS ACTION, CLASS ARBITRATION, AND JURY TRIAL RIGHTS
You and NAC agree that this arbitration agreement is made pursuant to a transaction and interaction involving interstate commerce and shall be governed in all respects by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration or purporting to place limits on the availability or scope of arbitration.
You further agree any dispute between us, including disputes by either of us against our respective vendors, service providers, agents, representatives, attorneys, employees, subsidiaries, affiliates, predecessors in interest, heirs, successors, or assigns, will be resolved exclusively and finally by confidential, binding arbitration or in small claims court only. Actions to enforce or challenge the decisions of any arbitrator may be taken in any court of competent jurisdiction. The arbitration or small claims court action shall occur and the county (or parish) in which you reside.
Proceedings in arbitration or small claims court are required for all claims and issues, including, but not limited to, the legality, enforceability, and scope of this agreement to arbitrate. This 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, fraud, misrepresentation or any other legal theory, including claims involving advertising and privacy issues. This agreement does not prevent you from bringing any issues to the attention of federal, state, or local agencies.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, ANY PRIVATE ATTORNEY GENERAL ACTION, OR OTHER MASS CLAIMS PROCESS, WHETHER PUBLIC OR PRIVATE.
YOU AND NAC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AGAINST NAC AND MAY NOT PRESIDE OVER ANY KIND OF REPRESENTATIVE OR CLASS PROCEEDING AGAINST NAC.
In arbitration under this agreement, a dispute is resolved by a one neutral arbitrator, rather than by a judge or jury, and the process allows for more limited discovery and very limited review by the courts. While arbitration is more informal, under this agreement an arbitrator can award the same relief that a court can award; however, the arbitrator shall have no power to conduct class, consolidated, collective, or private attorney general proceedings and you are waiving any rights you may have to proceed on that basis.
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 adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at att.com/arbitration-information.) The arbitrator is bound by the terms of this Agreement.
A party who seeks arbitration must first sent to the other, by certified mail, a written Notice of Dispute. The Notice of Dispute should be sent to Attention: Consumer Affairs Department New Vitality, 95 Executive Dr., Suite 14, Edgewood, NY 11717, describe the nature and basis of the claim and dispute, and set forth the specific amount sought. If you and NAC do not reach an agreement to resolve the claim within thirty (30) days after the Notice of Demand is received, you or NAC may commence an arbitration proceeding.
If you initiate an arbitration, NAC will reimburse you for any standard filing fee which may have been required under AAA’s Procedures for claims under $10,000. For claims over $10,000, payment of fees will be governed by the AAA Rules.
You acknowledge that the class action and class arbitration waiver is material and essential to the arbitration of any disputes between the parties and is not severable from the agreement to arbitrate. If any portion of this class action or class arbitration waiver is limited, voided, or cannot be enforced, NAC shall have the exclusive and absolute right to declare this arbitration agreement null and void.
THE SITES ARE INTENDED FOR ADULTS
You should be aware that the Sites are not intended or designed to attract or be used by anyone under the age of 18. We do not collect personally identifiable information from any person we actually know is under the age of 18. By downloading, accessing, or using the Sites or in order to view our information and materials or submit information of any kind to the Sites, you represent that you are at least eighteen (18) years of age (or the age of majority in your state of residence).
Do not send us any medical, therapeutic, or treatment questions. NAC and any persons featured on the Sites, do not provide medical advice, and we urge you to contact your doctor if you feel you require medical advice or treatment.
RESTRICTIONS ON USE OF MATERIALS
These Terms and Conditions provide only a limited license to access and use the Sites. Accordingly, you expressly acknowledge and agree that NAC transfers no ownership or intellectual property interest or title in and to the Sites to you or anyone else. All materials, including without limitation, graphics, images, HTML, codes, multimedia clips, Java codes, logos, button icons, banners and software, contained in the Sites are the copyrighted property of NAC or its affiliated companies and/or third party licensors. All trademarks, service marks, and trade names show on the Sites are proprietary to NAC or its affiliates and/or third party licensors. Unauthorized use of the materials on the Sites will violate intellectual property rights. All rights not expressly granted in these Terms and Conditions are reserved to NAC Marketing Company, LLC, or its affiliated companies and/or third part licensors, whichever is the owner of any specific material. As such, no material from the Sites may be modified, translated, decompiled, disassembled, broadcast, licensed, sublicensed, transferred, sold, mirrored, framed, exploited, rented, leased, copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy of the materials on any single computer for your personal, non-commercial home use only. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, INFORMATION, OR MATERIALS PROVIDED BY NAC TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
NAC cannot and does not guarantee or warrant that any files or information available for downloading will be free of infections, viruses, worms, Trojan horses or other code or codes that may contain contaminating or destructive properties. You agree to assume the entire cost of all necessary service, repair or correction resulting from any such downloading. You may not link any other website to the Sites, nor reference hypertext documents on the Sites from another website or document including e-mail, except under agreement as provided under our Affiliate program. NAC reserves the right at any time and in its sole discretion to change or revoke any authorization granted above. In such circumstances or if you violate any of the provisions of these Terms and Conditions, your permission to use the materials automatically terminates and you must immediately destroy any copies you have made of the materials. Nothing contained in the Sites should be construed as granting any license or right to use any trademark, logo, trade name, or design displayed on the Sites without the written permission of NAC or the respective owner of the trademark.
LIMITATION OF LIABILITY AND DISCLAIMER
The Sites and the information given through the Sites are provided without charge and are provided on an “As Is” basis. The use of the Sites and the information is at your own risk. When using the Sites, information will be transmitted over a medium over which NAC has no control or jurisdiction. Therefore, NAC does not assume any liability for or relating to the delay, failure, interruption or corruption of any information transmitted in connection with the use of the Sites.
TO THE FULLEST EXTENT PERMITTED BY LAW, NAC DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the exclusions may not apply to You. NAC does not warrant that the information contained on the Sites will be uninterrupted or error free, or that defects will be corrected. NAC makes no warranty as to the accuracy, reliability, completeness, timeliness, usefulness, adequacy or suitability of the information, links or communications provided on or through the use of the Sites and does not warrant against human or machine errors, delays, omissions, interruptions or losses, including loss of any data or the legality of the Sites or compliance with respect to laws governing the products, services, or promotions offered on the Sites.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES, SUPPLIERS, OR THOSE HEALTH CARE PROFESSIONALS WHO HAVE CONTRIBUTED MATERIAL OR ANSWERED QUESTIONS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, PERSONAL INJURY, OR WRONGFUL DEATH WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITES OR THE INFORMATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree that you will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Sites, including, without limitation, when you provide information via Sites registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, NAC reserves the right to terminate immediately your access to and use of the Sites. In addition, you agree that you will not make any transmission or submission to the Sites that violates any laws or regulations or infringes or violates the rights of any person or entity. By making communications or submitting information, success stories, testimonials, feedback, and/or photographs (collectively, “Submissions”) to chat rooms, message or discussion boards or other forums, such as success stories or testimonials, or in contests or the like, you agree that such Submissions are not confidential for all purposes and we shall not be liable for any use or disclosure of any such Submissions by us or others. If you make any such Submission, you automatically grant (or warrant that the owner of such content has expressly granted) NAC a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the Submissions (including without limitation your photograph or likeness) in any media or medium, or any form, format, or forum now known or hereafter developed and waive any and all moral rights in the Submissions. NAC may sublicense its rights through multiple tiers of sublicenses.
MARKETING BY NAC BY TEXT, TELEPHONE, MAIL, AND ALL OTHER MEANS
From time to time, NAC may send you Promotions or otherwise communicate with you via instant messaging, text, telephone, direct mail, or other means of communication. These Terms and Conditions govern all such Promotions and communications. In connection with all such Promotions and communications, you understand that by purchasing products, providing consent to receiving Promotions or communications (including by checking a box where required), or in any other way requesting communications from NAC, you agree that these Terms and Conditions apply, control, and govern your rights in connection with any matters relating to or arising from such Promotions and communications.
If you participate in a chat area, message or discussion board, forum, or e-mail function from the Sites or submit your success story or testimonial for publication on the Sites (“Public Areas”), you are solely responsible for your own communications, the consequences of posting those communications, and your reliance on any communications found in the Public Areas. NAC is not responsible for the consequences of any communications in the Public Areas. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. If you think you may have a medical emergency, call your doctor or 911 immediately.
Please keep in mind that whenever you give out personal information online for example, via message boards or chat areas on the Sites, that information can be collected and used by people you don’t know. While NAC strives to protect your personal information and privacy, we cannot guarantee the security of any information you disclose online; you make such disclosures at your own risk. Although NAC may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on the Sites, NAC is under no obligation to do so and assumes no responsibility or liability arising from such materials nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any such materials on the Sites.
You agree that if you use any Public Areas, you must not:
NAC does not and cannot review all communications and materials posted or uploaded to the Sites and is not responsible for the content of these communications or materials. However, we reserve the right (but not the obligation) to monitor these Public Areas and to refuse to post, remove or edit content from any of these areas at any time and for any reason. In addition, we reserve the right to take any action we think necessary to enforce compliance with your agreement or to protect the personal safety of our users or the public, including recording dialogue in public chat rooms and terminating a user’s access to the Public Areas or the Sites. NAC has no liability or responsibility to users of the Sites or any other person or entity for performance or nonperformance of any such activities.
ENFORCING SECURITY ON THE SITES
Actual or attempted unauthorized use of the Sites may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. NAC reserves the right to view, monitor, and record activity on the Sites without notice to or permission from you. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity on the Sites. NAC will comply with all court orders involving requests for such information. In addition to the foregoing, NAC reserves the right to, at any time and without notice, modify, suspend, terminate, or interrupt operation of or access to the Sites, or any portion of the Sites to protect the Sites, NAC or NAC’s business.
LINKS TO OTHER SITES
We suggest that you exercise discretion while browsing the Internet using the Sites. You should be aware that when you are on the Sites, you could be directed to other websites that are beyond our control. There are links to other websites from NAC pages that take you outside of our service. For example, if you “click” on a banner advertisement or a link, the “click” may take you off the Sites. This includes links from advertisers, sponsors, and content partners that may use our logo(s) as part of a co-branding agreement. These other websites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on the Sites may send cookies to users that we do not control. Use of third-party websites is at your own risk and subject to the terms and conditions of use for such websites. We make no representations concerning the content of any such third party websites. Consequently, we cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in websites linked to the Sites. We reserve the right to disable links from third party sites to the Sites.
THIRD PARTY PROVIDERS
For Amazon and eBay orders, Bdirect Online and Vitamin Shoppe are the only official third party sellers authorized by the manufacturer, NAC Marketing Company LLC d/b/a New Vitality to sell our items. Our warranty does not apply to products that are purchased through unauthorized resellers, including unauthorized sellers on Amazon.com, eBay.com, or other third-party marketplace websites. We do this to ensure brand consistency and product quality across sales channels, especially since this is an ingestible supplement. Anyone found to be in violation of this policy, may find their wholesaler account terminated.
TERMINATION OF ACCOUNT
These Terms and Conditions will take effect at the time you click “SUBMIT ORDER”, register, respond to a request for information, and/or begin downloading, accessing, or using the Sites, or otherwise expressly agree to be bound by them, whichever is earliest. NAC reserves the right at any time and for any reason to deny you access to the Sites or to any portion thereof in order to protect its name and goodwill, its business, and/or other users, and NAC shall have the right to immediately terminate a user’s account in the event of any conduct by a user which NAC, in its sole discretion, considers to be unacceptable, or in the event of any breach by a user of these Terms and Conditions. Termination will be effective without notice. You may also terminate these Terms and Conditions at any time by ceasing to use the Sites, but all applicable provisions of these Terms and Conditions will survive termination. Upon termination, you must destroy all copies of any aspect of the Sites in your possession. The provisions concerning NAC’s proprietary rights, Submissions, indemnity, disclaimers of warranty and liability, admissibility of these Terms and Conditions, and governing law will survive the termination of these Terms and Conditions for any reason.
You agree to indemnify, defend and hold NAC and its affiliates and their respective officers, directors, owners, agents, information providers, affiliates, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all claims, demands, liabilities, costs and/or expenses whatsoever (including without limitation reasonable legal fees disbursements) arising out of or resulting, directly or indirectly, from: (a) your breach of these Terms and Conditions; (b) your access to or use of the Sites or any website to which the Sites is or may be linked from time to time; (c) your use of, reliance on, or publication, communication or distribution of anything on or from the Sites; and/or (d) your violation of any law, rule or regulation. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
You acknowledge that any breach, threatened or actual, of these Terms and Conditions will cause irreparable injury to NAC, such injury would not be quantifiable in monetary damages, and NAC would not have an adequate remedy at law. You therefore agree that NAC shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for breach, threatened or actual, of your obligations under any provision of these Terms and Conditions. Accordingly, you hereby waive any requirement that NAC post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to NAC to enforce any provision of these Terms and Conditions.
Unless otherwise specified, the information is presented solely for, and any coupons, promotions and programs are offered only to, residents of the United States of America, the US Virgin Islands, Puerto Rico and Guam. In addition, any contests or sweepstakes offered are offered only to residents of the United States of America. We make no representation that material on the Sites is appropriate or available for use in any particular location. Those who choose to access the Sites do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You can contact us via e-mail by clicking “Contact Us” on any NAC page or send an e-mail directly to firstname.lastname@example.org. Please include information in the e-mail that will help us identify your account so we can assist you with your inquiry or request.
WAIVER & SEVERABILITY
Failure to insist on strict performance of any of these Terms and Conditions will not operate as a waiver of any subsequent default or failure of performance. No waiver by NAC of any right under these Terms and Conditions will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of these Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of these Terms and Conditions shall continue in effect.
SUCCESSORS AND ASSIGNS
We may perform any of our obligations or exercise any of our rights under these Terms and Conditions through one or more of our corporate affiliates (including any entity that directly or indirectly controls, is controlled by, or is under common control with us). If NAC or its assets are acquired by another entity, that entity will assume our rights and obligations as described in these Terms and Conditions. You may not assign your rights or obligations under these Terms and Conditions, by operation of law or otherwise, without our prior written consent.
If you need further assistance, please, write us at:
Attention: Consumer Affairs Department New Vitality
95 Executive Drive
Edgewood NY 11717
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