Terms of Service
By accessing or using the websites, mobile applications, or blogs (collectively, the “Sites”) provided by Forks Over Knives, LLC, or our subsidiaries or other affiliates including our Cooking School (Rouxbe Global Food Group) and the (collectively, “Forks Over Knives,” “we,” “us” or “our”) that link to these Terms, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Sites, or place orders, receive or use the meal planner or other products made available through the Sites (collectively, the “Products”). THESE TERMS APPLY TO ALL PURCHASES OF ANY PRODUCTS AND SERVICES FROM FORKS OVER KNIVES AS WELL AS THE USE OF ANY MOBILE APPLICATIONS, RECIPES, BOOKS OR MOTION PICTURES, AND PARTICIPATION IN ANY EVENTS.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any Products, services or otherwise. If you are using the Sites on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.
Forks Over Knives reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites, or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or place orders, receive, or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites, or place orders, receive or use the Products or services that we offer.
1. Disclaimer: Changes in Your Diet
YOU SHOULD CONSULT WITH YOUR HEALTH CARE PROVIDER BEFORE YOU CHANGE YOUR DIET AND YOU SHOULD DISCUSS WITH HIM OR HER ANY MEDICATION YOU ARE TAKING TO MANAGE A CONDITION. TRANSITIONING TO A WHOLE-FOOD, PLANT-BASED DIET MAY RESULT, IN POSSIBLY A VERY SHORT TIME, IN IMPROVEMENT IN YOUR CONDITION FOR WHICH YOU ARE TAKING MEDICATION, AND YOUR DOCTOR MAY DECIDE TO ADJUST YOUR MEDICATIONS AND/OR DOSAGE. THIS IS NOT BECAUSE OF A PROBLEM WITH THE LIFESTYLE. IT IS BECAUSE YOUR HEALTH MAY IMPROVE AND AS A RESULT YOU MAY NEED A DIFFERENT DOSAGE THAN YOU ARE TAKING NOW. IT IS VERY IMPORTANT THAT YOU AND YOUR DOCTOR MONITOR THE SITUATION SO YOU TAKE ONLY THE AMOUNT OF MEDICATION YOU NEED.
FORKS OVER KNIVES SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY LIABILITY, LOSS OR RISK, PERSONAL OR OTHERWISE, WHICH IS INCURRED AS A CONSEQUENCE, DIRECTLY OR INDIRECTLY, OF THE USE AND APPLICATION OF ANY PRODUCT OR SERVICE IT OFFERS, INCLUDING ANY INFORMATION ON ITS WEBSITE, AND ANY CHANGE IN A SUBSCRIBER’S DIET.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (c) do not have more than one Forks Meal Planner account, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
3. Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Forks Meal Planner account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Forks Meal Planner account, you also consent to receive electronic communications from Forks Over Knives (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Meal Planning Subscriptions; Continuous Subscriptions; Cancellation Policy
Meal Planning Subscription Plans.
Forks Meal Planner offers different subscription plans for the meal planning service (each, a “Meal Plan Subscription”). Note that the Meal Plan Subscription provides suggestions for meal plans and recipes only and does not deliver or provide ingredients.
Continuous Subscription. This is a subscription service. Unless paused or cancelled, you will receive an electronic meal plan in accordance with your selected plan. Each weekly total will be charged to your payment method on file at the regular price, plus any additional fees, or taxes, as applicable. Prices are subject to change. As a customer, you will receive weekly e-mails notifying you when new meal plans are available. When you register for the meal planning service, you expressly acknowledge and agree that (a) Forks Over Knives (or our third party payment processor) is authorized to charge you on a monthly or annual basis for your meal planning subscription (in addition to any applicable taxes and other charges) for as long as your meal planning subscription continues, and (b) your meal planning subscription is continuous until you cancel it or we suspend or stop providing access to the Sites or Products in accordance with these terms.
Cancellation Policy. You may cancel your plan, change your plan, or change the intolerance settings on your meal plan on our website. YOU ARE RESPONSIBLE FOR ALL MEAL SUBSCRIPTION PLAN CHARGES (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED BEFORE THE EFFECTIVE DATE OF YOUR CANCELLATION.
In the event you cancel your Meal Subscription, please note that we may still send you promotional communications about Forks Over Knives, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2 Free Trial
Forks Over Knives LLC may, at its sole discretion, offer a free trial for a limited period of time ("Free Trial").
You may be required to enter your billing information in order to sign up for the Free Trial.
If you do enter your billing information when signing up for the Free Trial, you will not be charged by Forks Over Knives LLC until the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected.
At any time and without notice, Forks Over Knives LLC reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.
4.3. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Forks Over Knives account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Meal Planning Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
4.4. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, will be charged in addition to the prices shown on the Sites. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Meal Planning Subscription, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes
We may, at any time, revise or change the pricing, availability, and specifications, content, descriptions or features of any Products or services offered or sold through the Site. We will make efforts to notify you of any price change at least two (2) weeks before taking effect.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.6. No Resale
You are not permitted to resell or otherwise use the service for commercial purposes.
4.7. Returns and Refunds
If you are dissatisfied with the service for whatever reason you may request a refund within thirty (30) days of the date you started your Meal Planning Subscription by contacting firstname.lastname@example.org. Refunds are limited to one per customer.
5. License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Forks Over Knives logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Forks Over Knives or our licensors or users, as applicable, and are protected by U.S. and state trademark laws as well as U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Forks Over Knives or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Forks Over Knives or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any trademark and/or copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Corporate Counsel
Address: Forks Over Knives,
Law Offices of Mark Litwak & Associates
11766 Wilshire Blvd., Ste. 270
Los Angeles, CA 90025-6566
Phone: (310) 859-9595
Your notification should contain the following:
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid.
You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Forks Over Knives,” “Good Health Tastes So Good!” and any other Forks Over Knives Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Forks Over Knives and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Forks Over Knives” or any other name, trademark or Product or service name of Forks Over Knives without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Forks Over Knives and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, and supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Forks Over Knives.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Forks Over Knives or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Forks Over Knives logo or other proprietary graphic of Forks Over Knives to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Forks Over Knives trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Forks Over Knives makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
9. Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Forks Over Knives is not responsible or liable in any manner for such interactions or Third Party Content.
10. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
11. User Content
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share, or store any of the following:
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
12. Rights in User Content
By uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Forks Over Knives website, Facebook page, Instagram page or Twitter feed), you hereby grant Forks Over Knives a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Forks Over Knives through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is non-confidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Forks Over Knives to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you may submit questions, comments, suggestions, ideas, original or creative materials or other information about Forks Over Knives, the Sites or the Products (collectively, “Submission”). Submission is not confidential and shall become the sole property of Forks Over Knives. Forks Over Knives shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Submission and shall be entitled to the unrestricted use and dissemination of this Submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you. No compensation will be paid with respect to the use of any Submission, and Forks Over Knives is under no obligation to post or use any Submission you may provide and may remove any Submission at any time. By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions. Further, you warrant and represent that we are not under any obligation of confidentiality relating to Submissions in any way.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Forks Over Knives, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Forks Over Knives Parties”), from and against all actual or alleged Forks Over Knives Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Submission you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Sites or Products provided to you. You agree to promptly notify Forks Over Knives of any third party Claims and cooperate with the Forks Over Knives Parties in defending such Claims. You further agree that the Forks Over Knives Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Forks Over Knives.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE, AND CONSUMPTION OF THE ITEMS YOU USE IN THE PREPARATION OF THE RECIPES FROM OUR SERVICE. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING, OR CONSUMING SUCH PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, THIS SERVICE, THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FORKS OVER KNIVES DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
16. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FORKS OVER KNIVES OR ANY OF THE OTHER FORKS OVER KNIVES PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM FORKS OVER KNIVES, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FORKS OVER KNIVES’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF FORKS OVER KNIVES AND THE OTHER FORKS OVER KNIVES PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE FORKS OVER KNIVES MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE FORKS OVER KNIVES AND THE OTHER FORKS OVER KNIVES PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE FORKS OVER KNIVES AND THE OTHER FORKS OVER KNIVES PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH FORKS OVER KNIVES PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
17. Modifications to the Sites and Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) and/or the Products at any time and without liability therefor.
18. Dispute Resolution; Arbitration
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our customer service department at 1-(888)-533-2063. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Forks Over Knives agree (a) to waive your and Forks Over Knives’ respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Forks Over Knives’ respective rights to a jury trial. Instead, you and Forks Over Knives agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2. No Class Arbitrations, Class Actions or Representative Actions
You and Forks Over Knives agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Forks Over Knives and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Forks Over Knives agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Forks Over Knives agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
18.3. Federal Arbitration Act
You and Forks Over Knives agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
18.4. Notice; Informal Dispute Resolution
You and Forks Over Knives agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Forks Over Knives shall be sent by certified mail or courier to Forks Over Knives, LLC, 2633 Lincoln Blvd. #936, Santa Monica, CA 90405, (888) 533-2063. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Forks Over Knives account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Forks Over Knives cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Forks Over Knives may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Forks Over Knives agree that any Dispute must be commenced or filed by you or Forks Over Knives within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Forks Over Knives will no longer have the right to assert such claim regarding the Dispute). You and Forks Over Knives agree that (a) any arbitration will occur in the State of California, County of Los Angeles, (b) arbitration will be conducted confidentially by a single arbitrator administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The AAA rules are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the Los Angeles, California which shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
18.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
18.7. Rules of American Arbitration Association
The rules of AAA and additional information about AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
18.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: Forks Over Knives, LLC., Attn: Corporate Counsel, Law Offices of Mark Litwak & Associates, 11766 Wilshire Blvd., Ste. 270, Los Angeles., CA 90025-6566;, Phone: (310) 859-9595. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting-out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
19. Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Los Angeles.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Forks Over Knives account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), and 9 through 23.
These Terms constitute the entire agreement between you and Forks Over Knives relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Forks Over Knives. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Forks Over Knives’ failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.