Terms of Service
FORKS OVER KNIVES TERMS OF USE
These TERMS OF USE (these "Terms") were last revised and updated on May 30, 2024.
These Terms are agreed to between Upbeet Brands, Inc. and its affiliates and subsidiaries (collectively, "Upbeet Brands", “us”, “we” or “our”) and you or, if you are accessing or using the Offerings on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “you” or “your”).
These Terms incorporate by reference our Privacy Statement, which sets forth, among other things, the categories of private information we collect from you, how we use that private information, and other persons or entities with whom we may share that information. Please review our Privacy Statement before agreeing to these terms.
In addition to any other terms you may agree to in connection with such Offerings, these Terms apply to: (1) all websites, mobile applications, blogs or platforms (collectively “Sites”) that link to or otherwise incorporate these Terms and are provided by Upbeet Brands, including our Cooking School and Forks Meal Planner; (2) all books, magazines, motion pictures, Subscriptions, programs, services, and otherproducts made available for order on or through the Sites, including our Cooking School and Forks Meal Planner (collectively, the “Products”); (3) all content and other materials available through the Sites orProducts, including, without limitation, any Upbeet Brands logo and all designs, text, graphics, pictures,information, data, recipes, software, sound files, User Content (as defined below), other files and the selection and arrangement thereof (collectively “Content”); and (4) your participation in any UpbeetBrands events or programs (“Events”). In these Terms, we refer to the Sites, Products, Content, and Events collectively as the “Offerings.”
THE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU (OR THE ENTITY ON WHOSE BEHALF YOU ACCESS THE OFFERINGS) AND UPBEET BRANDS; PLEASE CAREFULLY READ THEM CAREFULLY BEFORE ACCESSING OR USING ANY OFFERINGS. BY ACCESSING OR USING ANY OFFERINGS, OR BY CLICKING “I AGREE” TO THESE TERMS, YOU AGREE TO ENTER INTO AND BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, BY ACCESSING OR USING ANY OFFERING YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT HAVE SUCH AUTHORITY, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THE TERMS, YOU MUST NOT ACCESS OR USE ANY OFFERINGS.
THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND UPBEETBRANDS ARE RESOLVED AND CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IN PARTICULAR, THE ARBITRATION AGREEMENT IN SECTION 15 WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND UPBEET BRANDS TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION, UNLESS YOU OPT OUT. IN ADDITION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT IN ANY CLASS OR REPRESENTATIVE PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND YOUR RIGHT TO HAVE A JURY TRIAL.
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 Offerings. Upbeet Brands 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, and/or updating the “last revised and updated” date at the beginning of these Terms. By continuing to access or use the Offerings, you confirm your acceptance of the revised Terms and all of the terms incorporated thereinby 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.
THE SITE AND SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY.
UPBEET BRANDS 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/OR APPLICATION OF ANY OFFERINGS OR SERVICES, INCLUDING ANY INFORMATION ON THE SITES AND ANY CHANGE IN A SUBSCRIBER’S DIET. THE OFFERINGS MAY OFFER HEALTH, DIET AND MEDICAL RELATED INFORMATION DESIGNED ONLY FOR NON-COMMERCIAL, INFORMATIONAL PURPOSES. YOU SHOULD NOT RELY ON ANY INFORMATION PROVIDED BY THE OFFERINGS AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE HEALTH OF ANOTHER PERSON OR THE CONTENT OF THE OFFERINGS, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM A HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITES OR THROUGH THE OFFERINGS. THE USE OF ANY INFORMATION PROVIDED ON THE SITES OR THROUGH THE OFFERINGS IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OFFERING IS INTENDED TO BE, AND MUST NOT BE CONSIDERED, THE PRACTICE OF MEDICINE OR COUNSELING CARE. DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS, NUTRITION AND OTHER MEDICAL CARE TOPICS DISCUSSED ON THE SITES OR THROUGH THE OFFERINGS AND NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE SITES OR THROUGH THE OFFERINGS WILL ALWAYS INCLUDE THE MOST RECENT FACTS, FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. WE DO NOT RECOMMEND, ENDORSE OR CONFIRM THE ACCURACY OR APPRORIATENESS OF ANY SPECIFIC TESTS, PHYSICIANS, CLINICS, PROCEDURES, OPINIONS, PRODUCTS OR OTHER INFORMATION THAT MAY APPEAR ON THE SITES OR THROUGH THE OFFERINGS. IF YOU RELY ON ANY OF THE INFORMATION PROVIDED BY THE SITES OR THE OFFERINGS, OUR EMPLOYEES, OR GUESTS OR OTHER USERS OF THE OFFERINGS, YOU DO SO SOLELY AT YOUR OWN RISK.
1. Eligibility.
The Sites are not targeted toward or intended for use by anyone under the age of 13. By using the Sites, you represent and warrant that you (a) are 13 years of age or older (or applicable age of maturity in your country), (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 Upbeet Brands Account, and (d) have full power and authority to enter into these Terms, grant the rights and licenses described herein, and that doing so will not violate any other agreement to which you are a party.
2. PROHIBITED ACTIVITIES.
You acknowledge and agree that the Sites and Offerings contain proprietary and confidential information that is protected by applicable intellectual property and other laws and are the sole property of Upbeet Brands or our content providers. Unless otherwise specified in writing, the Offerings are for your personal and non-commercial use. In connection with your use of the Sites and/or Offerings, you acknowledge and agree that you will not: (a) Copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code,distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products, or services obtained through Sites or the Offerings; (b) Use any robot, spider, site search and/or retrieval application, or other devices to crawl, scrape, database scrape, screen scrape, harvest, gather, extract, retrieve or index any portion of theOfferings; (c) Use any text, code, image, audio, or other content from any portion of the Offerings (a) for data setcreation, analysis, or manipulation (including activities sometimes called “data mining,” “text and data mining,” or “TDM”) and/or (b) in connection with the development or operation of any software program, including but not limited to any artificial intelligence or machine learning model, software, or process (such as training, fine-tuning, embedding, and the like), either directly orindirectly, including through a third-party (including use of a third-party dataset created in any part by prohibited means); (d) Post or transmit any material that contains a virus or corrupted data;(e) Delete any author attributions, legal notices or proprietary designations or labels; (f) Violate any applicable local, state, national or international law, rule or regulation or use the Sites and/or Offerings for any purpose that is prohibited by these Terms; (g) Manipulate or otherwise display the Sites and/or Offerings by using framing or similar navigational technology; (h) Register, subscribe or unsubscribe any party for any Upbeet Brands product or service if you are notexpressly authorized by such party to do so; (i) Use the Sites and/or Offerings in any manner that could damage, disable, overburden or impair Upbeet Brands' servers or networks or interfere with any other user's use and enjoyment of theSites and/or Offerings; (j) Gain or attempt to gain unauthorized access to any of the Sites, Offerings, accounts, computersystems or networks connected to Upbeet Brands through hacking, password mining or any other means; (k) Obtain or attempt to obtain any materials or information through any means not intentionally made available through Sites or the Offerings or harvest or otherwise collect information about other users without their consent; (l) Use the sites in any manner that could damage, disparage, or otherwise negatively impact Upbeet Brands (m) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, INFORMATION OR MATERIALS PROVIDED BY UPBEET BRANDS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
3. Registration, Account, Electronic Communications, Mobile Service.
3.1. Registration and Account.
In order to access and use certain areas or features of the Sites, you will need to register for an Upbeet Brands account (“Account”). Approval of your request to establish an Account will be at the solediscretion of Upbeet Brands. Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. Each Account is for your personal use and each Account ID maybe used only by you alone. You may not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use ofany Offerings through your Account. You will ensure the security and confidentiality of your Account ID and will notify us immediately if any Account ID is lost, stolen or otherwise compromised. Any transactions completed through your Account or under your Account ID will be deemed to have been lawfully completed by you.In connection with establishing an Account, you may also be asked to submit certain information aboutyourself (“Account Information”). You agree that: (1) all Account Information you provide will be accurate, current, and complete; and (2) you will maintain and promptly update your Account Information to keep it accurate, current, and complete. You may not: (a) select or use an Account ID of another person with the intent to impersonate that person; and (b) use an Account ID that we, in oursole discretion, deem offensive.
3.2 Electronic Communications.
By creating an Account, unless you advise us otherwise you also consent to receive electronic communications from Upbeet Brands (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 willsatisfy any legal communication requirements, including, but not limited to, that such communicationsbe in writing. You should maintain copies of electronic communications from us by printing a paper copyor 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 beof interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
3.3. Mobile Service.
We may offer and operate a mobile message service, which may include SMS/text messaging service(the "Mobile Service") from time to time. Your use of the Mobile Service constitutes your agreement to the terms and conditions set forth in these Terms, and specifically this Section 3.3 (this Section 3.3., the“Mobile Terms”). We may modify or cancel the Mobile Service or any of its features without notice. Tothe extent permitted by applicable law, we may also modify these Mobile Terms at any time and yourcontinued use of the Mobile Service following the effective date of any such changes shall constitute your acceptance of such changes.By consenting to the Mobile Service, you agree to receive recurring SMS/text messages from and onbehalf of Upbeet Brands through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sentusing an automatic telephone dialing system or other technology. Offering-related messages mayinclude updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders). You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Upbeet Brands. Your participation in this program is completely voluntary.We do not charge for the Mobile Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider. You may opt-out of the Mobile Service at any time. Text the single keyword command STOP to+18443868509 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Upbeet Brands mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separatelyfrom those programs by following the instructions provided in their respective mobile terms. For Mobile Service support or assistance, text HELP to +18443868509 or emailsupport@upbeetbrands.com. We may change any short code or telephone number we use to operate the Mobile Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. The wireless carriers supported by the Mobile Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number. To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Mobile Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Mobile Service. We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Statement.
4.1 Meal Planning Subscriptions; Cancellation Policy.
The Forks Meal Planner offers different subscription plans for the meal planning service (each, a“Subscription”). Note that a meal plan Subscription provides suggestions for meal plans and recipes only and does not deliver or provide ingredients.
The Forks Meal Planner is a subscription service, which requires an initial payment when signing up for asubscription and thereafter will bill you on a monthly or annual basis to continue your subscription. Unless paused or cancelled, you will receive an electronic meal plan in accordance with your selected plan. Each Subscription will be charged to your payment method on file at the established subscription fee rate, plus any additional fees, or taxes, as applicable. Prices are subject to change in our sole discretion. As a customer, you may receive e-mails notifying you when new meal plans are available. When you register for a meal planning Subscription, you expressly acknowledge and agree that (a)Upbeet Brands (or our third party payment processor) is authorized to charge you on a monthly or annual basis for your Subscription (in addition to any applicable taxes and other charges) for as long as your Subscription continues, and (b) your Subscription is continuous until you cancel it or we suspend or stop providing access to the Sites or Products in accordance with these terms. You may cancel your Subscription, change your plan, or change the preferences or settings for your Subscription on our website. YOU ARE RESPONSIBLE FOR ALL 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 Subscription or Free Trial (as described below), please note that we may still send you promotional communications about Upbeet Brands, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2 Free Trial.
We may 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 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 theapplicable Subscription fees for the type of Subscription you have selected. At any time and without notice, we reserve the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer. Further, if any Offerings are provided as part of a Free Trial, we reserve the right to make those Offerings, updates, upgrades, new versions, or other products that incorporate those Offerings (collectively, “Future Products”) available for a fee, and we will have no obligation to provide Future Products to you for free. Future Products may also be subject to separate fees and/or agreements for such Future Products. You acknowledge that you are responsible for all fees and expenses related to accessing or using the Offerings.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”). I fthe 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 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 plan 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.
The Offerings may be made available via registration, a signed agreement, an order form or via account sign-up and may be for a fee or made available at no fee. 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 Subscription, we will provide advance notice of such changes in accordance with these Terms. We will not, however, notify you of changes in any applicable taxes. The shipment of merchandise or a plan, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your Subscription(s) in accordance with the cancellation policies set forth in Sections 4.1, as applicable. All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to make partial shipments of any Order, to discontinue offering certain Products, and to substitute Products without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you arenot satisfied with a substitution, please contact us at support@upbeetbrands.com.The information regarding price, Product specifications, and availability contained on the Site has been provided by our manufacturers, vendors, and suppliers (“Suppliers”). The prices charged by Suppliers on the Site are the prices agreed upon by us at the time the Supplier joins the Site. Although we will attempt to make certain that the prices listed on the Site are accurate, and that out-of-stock items are marked or removed from the inventory on the Site, prices and product availability may differ and are subject to change, including if you select a delivery or pickup date that is different from the date on which you place your order. Moreover, though every effort is made to ensure accuracy in posting pricing information, discrepancies do occur. In the event that the checkout price and the price posted on the Site are different, the checkout price will prevail. Of course, if you become aware that the Site or any Offering contains inaccurate information, please contact us at support@upbeetbrands.com as we welcome your feedback. If you provide recommendations, suggestions, improvements or other feedback (collectively, “Feedback”), you agree that we will have a license and royalty-fee free, worldwide perpetual and irrevocable right to use and incorporate such Feedback into the Offerings without restriction and without any obligation or compensation to you or any third party. 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 throughthe Site. If you have already placed an order or are on a recurring order plan, we will make efforts tonotify you of any price change at least two (2) weeks before taking effect.
4.5 Taxes.
We will collect applicable sales tax on Products shipped to the states for which we determine we have aduty 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 Shipping and Handling.
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third-party courier. When you purchase a Product from Upbeet Brands, any shipping times shown on the Sites are estimates only. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased fromus are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third-party courier.
4.7 Deliveries.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your delivery to confirm that the product has arrived in good condition. If you have any reason to believe that any Product in your delivery is not suitable for consumption or differs from what you ordered, please contact us at support@upbeetbrands.com. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate al lperishable Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety. If you are not at home when your delivery arrives, the courier will generally leave the package for you atyour door. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery is not feasible, we will cancel your delivery for the period so affected and issue you a credit or refund of the purchase price for that delivery.
4.8 No Resale.
Our Products are for your personal use and consumption only. You are not permitted to resell, distribute or otherwise use the Products for commercial purposes.
4.9 Returns, Replacement.
If you are dissatisfied with an Offering for any reason, please contact us at support@upbeetbrands.com. Certain items are not returnable unless required by law. If we elect to provide you a full or partial refunds we will provide the refund via a credit to the credit card used to buy the Offering. Return and refund policies vary by product or service as follows: (a) Books, magazines, DVDs, and merchandise. All sales are final. In cases of a manufacturing defector damage during shipping, such Products may be returned in the same condition as when you receivedit. Please notify us in writing within thirty (30) days of sale and we will replace any defective items intheir original packaging after inspection to confirm the defect. (b) Meal Planner: After enrolling you may be provided a free trial period. If you are not satisfied, you may cancel before your free trial ends. Please refer to the Free Trial terms in Section 4.2 for more information (c) Online Cooking Course: Owned and operated by Rouxbe Video Technologies Inc. and its parent company, Rouxbe Global Food Group, Inc., d/b/a Rouxbe Cooking School (“Rouxbe”) and subject to Rouxbe’s terms and conditions in addition to these Terms. Please reference Rouxbe’s FAQ page for more information about their cancellation and return policy.(d) Shipping: If you are sending a return item within the United States and the item is valued at $100or more, insure the shipment for the value of the item and ship your return with a signature shippingservice. Items valued over $35 must be returned to the seller with a trackable shipping service. For items below $35, we suggest USPS delivery confirmation service. If a package doesn’t arrive and you don’t use a trackable method to return or if you refuse the shipment as a method of return, we may not be able to process your return.
5.1 The Site.
Subject to Your compliance with these Terms, Upbeet Brands will permit you to access and use the Site solely for lawful purposes and only in accordance with these Terms and the terms of any other agreement you agree to before being given access to any specific areas of the Site or in relation with any Offering. Any additional agreement is in addition to these Terms and will govern your use of the Offerings to which the additional agreement applies in the event of a conflict between the terms ofthese Terms and the additional agreement.
5.2. Content.
Unless otherwise noted on the Site, other than Your Content, all Content available through the Site isowned by Upbeet Brands, the users providing that Content, or our other Content providers. All Contentis for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. Subject to your compliance with these Terms, you may access the Content solely for your own personal and internal business purposes in connection with your own use of the Offerings. You will not, and will not permitany third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Content. Upbeet Brands has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Content. Without limiting the foregoing, Upbeet Brands will not be held liable to you or any other third party for any Content (including Your Content) under a Federal Law the Communications DecencyAct or CDA, 47 U.S.C. § 230. Except as set forth in these Terms, you are granted no licenses or rights in or to any Content, or any Intellectual Property Rights therein or related thereto.
5.3 Content Sharing Guidelines.
Upbeet Brands may host message boards, chats, Facebook pages and other public forums through which the Offerings may be provided. These are public forums and any information that you post on the Site or through the Offerings may be seen by anyone with access to the applicable Offering. When posting information, you will exercise good judgment and demonstrate integrity when discussing sensitive topics and will treat others with respect and honesty, be fair and informative, and post only honest and valuable information. You agree that you will not post or engage in rumors or other misinformation or imply that any such misinformation is based in fact. Unless the information in your post arises directly from your personal experience, references to or sources of any health-related or medical information you provide must be included in your post. In addition to the guidelines and prohibited activities described above, when posting information and media on the Offerings you must not: (a) Post anything that interferes with or disrupts the Sites or the operation thereof, including files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network or the Sites; (b) Post statements or materials that are libelous or defame, harass, abuse, stalk, threaten, intimidateor in any way infringe on the rights of others; (c) Post statements or materials that are knowingly false or are intended to or may deceive others; (d) Post statements or materials that violate other contractual or fiduciary rights, duties or agreements;(e) Post or upload personal information, pictures, videos or any other media of another personwithout their express permission; (f) Delete or revise any material posted by any other person or entity; (g) Post statements or materials that are bigoted, hateful, racially offensive, vulgar, obscene, pornographic, profane, or otherwise objectionable, including language or images that typically would not be considered socially or professionally responsible or appropriate in person; (h) Post statements or materials that encourage criminal conduct or that would give rise to civilliability or otherwise violate any law or regulation in any jurisdiction; (i) Post statements or materials that in any way harm minors;(j) Post statements or materials that impersonate any other person or entity, whether actual orfictitious, including, without limitation, employees and representatives of Upbeet Brands; (k) Post statements or materials that misrepresent your affiliation with any entity and/or UpbeetBrands; (l) Post anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card numbers or any trade secrets or information for which you have any obligation of confidentiality; (m) Post statements or materials that constitute junk mail, spam or unauthorized advertising or promotional materials, including, without limitation, links to commercial products or services orany political campaigning; (n) Post material that in the sole judgment of Upbeet Brands is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site, or which may expose Upbeet Brands or its users to harm or liability of any nature; or (o) Post material that infringes, or that may infringe, any patent, trademark, trade secret, copyrightor other intellectual or proprietary right of any party, or that you otherwise do not have the rightto make available, without the express permission of the owner of the copyright, trademark or other proprietary right. Upbeet Brands does not have any responsibility to provide any user with indications, markings or anything else that may aid any user in determining whether the material in question is copyrighted or trademarked. Users shall be solely liable for any damage resulting from infringements of copyrights, trademarks, proprietary rights or any other harm resulting from such submission. Any user failing to comply with these guidelines may be expelled from and refused continued access to the message boards, chats or any or all portion of the Offerings. We or our designated agents may remove or alter any user-created content at any time for any reason. Materials posted and/or uploaded may be subject to size and usage limitations. You are responsible for adhering to such limitations. Upbeet Brands expressly disclaims all responsibility and endorsement and make no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, and we will not be responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will Upbeet Brands or our affiliates, suppliers or agents be liable for any loss or damage caused by your and any other person’s reliance on information obtained through the Offerings. The opinions expressed by users of the Offerings are solely the opinions of such participants, and do not reflect the opinions of Upbeet Brands or any of its subsidiaries or affiliates. Upbeet Brands has no obligation whatsoever to monitorany of the content or postings on the message boards, chat rooms or other public forums. However, you acknowledge and agree that we reserve the right to monitor the same at our sole discretion. Unless otherwise stated, any moderators employed by Upbeet Brands are not medical professionals and should not be construed as such. Our moderators reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors. In addition, Upbeet Brands and its moderators reserve the right to contact users to inform them of policies, hide users’ posts or delete users’ accounts without warning or notice in advance, for any reason, including but not limited to the violation of these Terms. By sending or transmitting to us content, images, video, audio files, creative suggestions, ideas, notes, concepts, information or other materials (collectively, "Submission Materials"), or by posting such Submission Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sub-licenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, modify, create derivative works of, publicly perform, publicly display, digitally perform, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you. The foregoing license to Upbeet Brands shall be fully paid-up and royalty free. You represent and warrant that any person or entity named or pictured in such Submission Material has provided any necessary licenses, rights or authorizations to allow Upbeet Brands’ use of such Submission Materials in accordance with such license. None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution or otherwise.
5.4 Third Party Offerings.
Not withstanding anything to the contrary in these Terms, the Sites may provide you with the option to obtain access to functionality, products and other things provided by third party providers, including online cooking courses, meal kit delivery, events, and other products and services (“Third PartyOfferings”). All Third Party Offerings are provided by third parties and Upbeet Brands does not control any Third Party Offering. Upbeet Brands is not responsible or liable for your access to or use of any Third Party Offering, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Offering. Your use of and access to any Third Party Offering are solely between you and the third party provider of that Third Party Offering. Your access to and use of any Third Party Offering is subject to any additional terms, conditions, or agreement provided or entered into in connection with the Third Party Offering (each, a “Third Party Agreement”). The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Offerings provided under that Third Party Agreement but will not otherwise apply to your accessto or use of the Offerings. Except as set forth in these Terms, in the event of a conflict between the terms of these Terms and a Third Party Agreement, the terms of the Third Party Agreement will controlwith respect to your access to and use of any Third Party Offering provided under that Third PartyAgreement. These Terms will continue to control in all other respects. Any opinions, advice, statements, services, advertisements, offers or other information or content expressed or made available through Third Party Offerings are those of the respective authors or distributors and not of us. Neither we nor any third-party content providers guarantee the accuracy, completeness or usefulness of any content. Furthermore, we are not responsible for the accuracy and reliability of any opinion, advice or statement made by anyone other than an authorized Upbeet Brands representative while acting in his/her official capacity. You may be exposed through the Offerings to content that violates our policies or is otherwise offensive. You access the Offerings at your own risk.We take no responsibility for your exposure to third party content through the Offerings, Third PartyOfferings or otherwise. We do not assume, and expressly disclaims, any liability relating to informationprovided on or omitted from the Offerings, Third Party Offerings or otherwise. It is understood andagreed that we do not advocate or endorse the use of any product or procedure described in theOfferings, Third Party Offerings or otherwise, nor are we responsible for misuse of a product orprocedure in any manner. You may purchase certain Offerings through third-party providers, subject toadditional agreements you enter into in connection with those Offerings (“Additional Agreements”). AnyAdditional Agreement is in addition to these Terms and will govern your access to and use of theOfferings to which the Additional Agreement applies. In the event of a conflict between these Terms andthe Additional Agreement, the Additional Agreement will control only with respect to those Offerings towhich the Additional Agreement applies and these Terms will control in all other respects. Yourparticipation, correspondence or business dealings with any third party found on or through our Sites orOfferings, including, without limitation, advertisers and other users, regarding payment and delivery ofspecific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Upbeet Brands shall notbe responsible or liable for any loss, damage, or other matters of any sort incurred as the result of suchdealings.
6. License; Ownership and Use of the Technology.
These Terms provide you a personal, revocable, limited, non-exclusive, royalty-free, non-transferablelicense to use the Offerings conditioned on your continued compliance with these Terms. You may printand download materials and information from the Sites solely for your personal use, provided that allhard copies contain all copyright markings, metadata and other applicable notices contained in suchmaterials and information. We and our licensors own all right, title and interest in and to the Sites andOfferings including all related Intellectual Property Rights. All of our rights not expressly granted by us toyou pursuant to these Terms are retained by us or our licensors.
Upbeet Brands retains all rights, title and interest, including, without limitation, all Intellectual PropertyRights in and relating to the software, data, technology, inventions, and content provided by or onbehalf of Upbeet Brands and used in connection with providing the Offerings, and any additions,improvements, updates and modifications thereto (the “Technology”). You receive no ownershipinterest in or to the Technology and you are not granted any right or license to use the Technology itself,apart from your ability to access the Sites and Content under these Terms. For purposes of these Terms,“Intellectual Property Rights” means all intellectual property rights, proprietary rights, rights of publicity,rights of privacy, and any and all other legal rights protecting data, information or intangible propertythroughout the world, including, without limitation, any and all copyrights, trademarks, service marks,trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
7. Repeat Infringer Policy; Copyright Complaints.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we haveadopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriatecircumstances and in our sole discretion, who infringe the Intellectual Property Rights of others. If youbelieve that anything on the Sites infringes any trademark and/or copyright that you own or control, please contact us at support@upbeetbrands.comPlease provide the following information to Upbeet Brands’ Copyright Infringement Agent: (1) theidentity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytimephone number, and email address, if available; (3) a statement that You have a good-faith belief that theuse of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statementthat the information in the notification is accurate and, under penalty of perjury, that You areauthorized to act on behalf of the owner; and (5) Your electronic or physical signature. You acknowledgethat 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 thatthe 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 suchmisrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Trademarks.
“Upbeet Brands,” and any other Upbeet Brands trademarks, service marks, advertising and marketingmaterials, designs, names, logos or slogans that may appear on the Offerings are trademarks owned byUpbeet Brands and its respective Suppliers 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“Upbeet Brands” or any other name, trademark or Product or service name of Upbeet Brands withoutour prior written permission. In addition, the look and feel of the Offerings, including, without limitation,all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark ortrade dress of Upbeet Brands and our Suppliers and may not be copied, imitated or used, in whole or inpart, 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 respectiveowners and may not be copied, imitated or used, in whole or in part, without the permission of theapplicable trademark holder.
9. Hyperlinks.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites fornoncommercial purposes, provided that such link does not portray Upbeet Brands or any of ourProducts in a false, misleading, derogatory or otherwise defamatory manner, and provided further thatthe linking site does not contain any illegal, pornographic offensive, harassing, or otherwiseobjectionable material. We may revoke this right at any time in our sole discretion. You may not use anyUpbeet Brands logo or other proprietary graphic of Upbeet Brands to link to the Sites without our priorexpress written permission. Further, you may not use, frame, or utilize framing techniques to encloseany Upbeet Brands trademark, logo or other proprietary information, including the images found on theSites, Content, or Products, the content of any text or the layout or design of any page, or formcontained on a page, on the Sites without our express written consent.Upbeet Brands makes no claim or representation regarding, and accepts no responsibility for, thequality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or ofwebsites linking to the Sites. Such sites are not under our control and we are not responsible for thecontents of any linked site, any link contained in a linked site, or any review, changes or updates to suchsites. We provide these links to you only as a convenience, and the inclusion of any link does not implyour affiliation, endorsement or adoption of any site or any information contained therein. When youleave the Sites, you should be aware that our terms and policies no longer govern. You should reviewthe applicable terms and policies, including privacy and data gathering practices, of any site to whichyou navigate from the Sites.
10. Third Party Content.We may display content, advertisements and promotions from third parties through the Sites or inshipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt anyThird Party Content, and we make no representations or warranties of any kind regarding such ThirdParty Content, including, without limitation, regarding its accuracy or completeness. You acknowledgeand agree that your interactions with third parties providing Third Party Content are solely between youand such third parties, and that Upbeet Brands is not responsible or liable in any manner for suchinteractions or Third Party Content.
11. User Content & Your Content.
11.1. User Content.
The Sites may include interactive features and areas that allow users to create, post, share or storecontent, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics,code, items or other materials (collectively, “User Content”). We are not responsible or liable for anyUser Content or for screening, editing or monitoring User Content prior to it being posted. Although wehave no obligation to screen, edit or monitor User Content, we reserve the right, and have absolutediscretion, to remove, screen, or edit any User Content, including Your Content, posted or stored on theSites at any time and for any reason, and you are solely responsible for creating backup copies of andreplacing Your Content should you choose to post or store it on the Sites, at your sole cost and expense.
11.2 Your Content.
You are solely responsible for all recipes, reviews, photos, videos, music, sound, text, graphics, code,information, data, and other content that you may provide through the Sites or to Upbeet Brands orgenerate through the use of the Offerings (collectively, “Your Content”). In the event you decide toshare Your Content with others through the Sites or third-party platforms, you understand that YourContent will be viewable by others in accordance with the privacy settings you establish. Upbeet Brandsis not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store orback-up any of Your Content.
11.3 Rights in Your Content.
As between you and Upbeet Brands, you retain ownership of Your Content. However, in addition to anyother rights granted to Upbeet Brands under these Terms, by providing Your Content through theOfferings or to our pages or feeds on third party social media platforms (e.g., Upbeet Brands website,Facebook page, Instagram page or Twitter feed), you grant Upbeet Brands a perpetual, irrevocable,nonexclusive, royalty-free, transferrable, sublicensable right and license to use, copy, store, reproduce,modify, display, adapt, publish, translate, create derivative works from, distribute, perform, and displayYour Content, in whole or in part, and your name, likeness, voice and persona in any manner or mediaand for any purpose whatsoever at our sole discretion, including, without limitation, for publicity,promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercialpurposes.By uploading, posting or submitting Your Content to Upbeet Brands through the Sites or through ourpages or feeds on third party social media platforms, you represent and warrant that (a) Your Content isnon-confidential, (b) you own and control all of the rights to Your Content or you otherwise have allnecessary rights to post Your Content, and (c) you authorize Upbeet Brands to use Your Content for thepurposes described in these Terms. Upbeet Brands uses reasonable means to protect the security of theSites, but you acknowledge that perfect security on the internet is impossible and that, as a result, YourContent may be exposed in the event of a breach.
11.4 Submissions.
In addition to Your Content, you may submit questions, comments, suggestions, ideas, original orcreative materials or other information about Upbeet Brands, the Offerings, or any suggestedimprovements thereto (collectively, “Submissions”). You agree that any Submissions you provide us willbe the exclusive property of Upbeet Brands. To the extent you own any rights in any Submissions, youagree to assign and hereby do assign to us all right, title and interest in and to the Submissions. Youagree to perform all acts reasonably requested by us to perfect and enforce such rights. We willreimburse you for direct out of pocket costs incurred in complying with our requests.
11.5. Indemnification.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmlessUpbeet Brands, its affiliates, and its and their respective past, present and future employees, officers,directors, contractors, consultants, equity holders, Suppliers, vendors, service providers, agents,representatives, predecessors, successors and assigns (individually and collectively, the “Upbeet BrandsParties”), from and against all actual or alleged Upbeet Brands Party or third party claims, damages,awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without
limitation, reasonable expert fees and attorneys’ fees and expenses) and costs (including, withoutlimitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), ofevery kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured orunmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise(collectively, “Claims”), arising out of or that are related to (a) your use or misuse of any Offerings,(b) Your Content, (c) any Submissions you provide, (d) your violation of these Terms, (e) your violation ofthe rights of another, including the infringement or misappropriation of any Intellectual Property Rights,and (f) any third party’s use or misuse of the Offerings through your Account. You agree to promptlynotify Upbeet Brands of any third-party Claims and cooperate with the Upbeet Brands Parties indefending such Claims. You further agree that the Upbeet Brands Parties shall have control of thedefense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, anyother indemnities or remedies Upbeet Brands may have available to it through other agreements or byoperation of law.
12. Disclaimers.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION,STORAGE, COOKING, USE, AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE ANDVERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING, ORCONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION, AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES AND ON PRODUCT PACKAGING, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION, OR ANY CONTENT ON THE SITES, AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, INAN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER 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. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY. UPBEET BRANDS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE OFFERINGS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UPBEET BRANDS, ITS EMPLOYEES, PROVIDERS, AGENTS, OR THE OFFERINGS, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES.Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some orall of the disclaimers in this Section 12 may not apply to you.
13. Limitation of Liability; Release.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UPBEET BRANDS OR ANY OF THE OTHER UPBEET BRANDS 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 OFFERINGS, INCLUDING 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 CONTENT OR INFORMATION OBTAINED FROM UPBEET BRANDS, 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), 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 MAXIMUMAGGREGATE LIABILITY OF UPBEET BRANDS AND THE OTHER UPBEET BRANDS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OR THE OFFERINGS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID TO UPBEET BRANDS FOR THE OFFERINGS IN THE PRECEDING THREE (3) MONTHS OR (B) TWO HUNDRED FIFTY DOLLARS ($250). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE UPBEET BRANDS AND THE OTHER UPBEET BRANDS 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.Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion ofliability for incidental or consequential damages. Accordingly, some of the above limitations anddisclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaimany implied warranty or limit liabilities, the scope and duration of such warranty and the extent of ourliability will be the minimum permitted under such applicable law.Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, sothe above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers orlimitations of liability for personal injury from consumer products, so this limitation may not apply topersonal injury claims.
14. Modifications to the Sites and Products.
We reserve the right in our sole discretion to modify, suspend, discontinue, or stop providing access to,temporarily or permanently, any Offerings (or any features or parts thereof) at any time and withoutobligation or liability to you. Any modifications will be effective upon posting to the Sites or noticepursuant to these Terms. You may cease using the Offerings at any time if you do not agree to anymodification. However, you will be deemed to have agreed to any and all modifications through yourcontinued use of the Offerings following such notice or posting to the Sites.
15. Dispute Resolution; Arbitration.15.1. Covered Dispute Matters.
You and Upbeet Brands agree that any dispute that has arisen or may arise between us relating in anyway to your use of or access to the Offerings, any validity, interpretation, breach, enforcement, ortermination of these Terms, or otherwise relating to Upbeet Brands or the Upbeet Brands Parties in anyway (collectively, “Covered Dispute Matters”) will be resolved in accordance with the provisions setforth in this Section 15.
15.2 Applicable Law.
You and we agree that United States federal law including the Federal Arbitration Act, and (to the extentnot inconsistent with or pre-empted by federal law) the laws of the State of California, without regard toconflict of laws principles, will govern all Covered Dispute Matters. Such body of law will applyregardless of your residence or the location of where you use the Offerings.
15.3 OUR ARBITRATION AGREEMENT.
You and we agree that any dispute between us regarding this Agreement or the Offerings shall besubmitted to binding arbitration administered by the American Arbitration Association (“AAA”) inaccordance with its Supplementary Procedures for Consumer-Related Disputes (including utilizing desk,phone or video conference proceedings where appropriate and permitted to mitigate costs of travel).The arbitration shall take place in Los Angeles County, California unless you and we agree to anotherlocation. You and we agree that the arbitrator shall not conduct any form of class or collectivearbitration nor join or consolidate claims by or for individuals. You and we agree that the arbitrator, andnot any federal, international, state, or local court or agency, shall have exclusive authority to resolveany dispute relating to the interpretation, applicability, enforceability or formation of these Terms,including any claim that all or any part of these Terms are void or voidable or a particular claim is subjectto arbitration. You and we agree that judgment on the award rendered by the arbitrator may be enteredin any court of competent jurisdiction. The arbitrator’s decision will include a reasoned opinion settingforth the essential findings and conclusions upon which the arbitrator based the award. The arbitratorwill decide the substance of all claims in accordance with applicable law, including recognized principlesof equity, and will honor all claims of privilege recognized by law. You and we agree that the arbitrator’saward shall be final and binding, and judgment on the award rendered by the arbitrator may be enteredin any court having jurisdiction thereof. Nothing in this provision, however, shall bar or restrict eitherparty from seeking injunctive or equitable relief in a court of competent jurisdiction.
15.4 WAIVER OF CLASS ACTION, COURT HEARING AND JURY
BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE (a) TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE), (b) TO SERVE AS REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES, AND (c) TO A TRIAL BY JURY EVEN IF ANY ARBITRATION IS NOT REQUIRED UNDER THESE TERMS.
15.5 LIMITATIONS PERIOD FOR YOUR CLAIMS.
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE OFFERINGS OR THESE TERMS MUST BE FILED WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED
16. Termination
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our solediscretion, to suspend or terminate your right to access or use the Sites and to order, receive and usethe Products, at any time and for any or no reason, and you acknowledge and agree that we shall haveno liability or obligation to you in such event and that you will not be entitled to a refund of anyamounts that you have already paid to us, to the fullest extent permitted by applicable law.
17. International Users.The Sites and Offerings are intended for visitors located within the United States. We make no representation that the Sites or Offerings are appropriate or available for use outside of the UnitedStates. Access to the Sites and Offerings from countries or territories or by individuals where such access is illegal is strictly prohibited.
18. Survival.The following sections will survive the expiration or termination of these Terms and the termination of your Upbeet Brands account: all defined terms and Sections 1, 3, 4, 6, 8, 9 (second paragraph only), and 10 through 24.
19. Severability.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause orprovision will be severable from these Terms and will not affect the validity or enforceability of anyremaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
20. Export Compliance.
The Offerings may be subject to export laws and regulations of the United States and other jurisdictions.You represent that you are not named on any U.S. government denied-party list. You shall not use theOfferings in violation of any U.S. export law or regulation.
21. Force Majeure.
Neither party shall be liable under these Terms by reason of any failure or delay in the performance ofits obligations here under on account of strikes, shortages, riots, insurrection, fires, flood, storm,explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, pandemic, or any other cause beyond the reasonable control of such Party; provided, that: (i) the partyaffected by such force majeure event, as soon as reasonably practicable after obtaining knowledge ofthe occurrence of such event, gives the other prompt notice describing the event; (ii) the suspension ofor extension of time for performance is of no greater scope and of no longer duration than is requiredby the force majeure event; and (iii) the party affected by such force majeure event uses all reasonableefforts to mitigate or remedy its inability to perform as soon as reasonably possible
22. Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact theComplaint Assistance Unit of the Division of Consumer Services of the California Department ofConsumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or bytelephone at (800) 952-5210 in order to resolve a complaint regarding the Offerings or to receive furtherinformation regarding use of the Offerings.
23. Assignment.
You may not assign your rights and obligations under this Agreement to any person or entity withoutour prior written consent. Upbeet Brands may assign, sublicense or subcontract its rights andobligations under this Agreement at any time for any purpose. We may perform any of our obligationsor exercise any of our rights under these Terms through one or more of our corporate affiliates(including any entity that directly or indirectly controls, is controlled by or is under common control withus). If Upbeet Brands, its equity or its assets are acquired by another entity, that entity will assume ourrights and obligations as described in these Terms.
24. Miscellaneous.
These Terms and our Privacy Statement constitute the entire agreement between you and UpbeetBrands relating to your access to and use of the Offerings, including your order, receipt and use ofProducts. No terms or conditions in you purchase order, or other online or clickthrough terms providedby you, or any other order documentation provided by you will be incorporated into or form any part ofthese Terms, and all such terms or conditions will be null and void. Except as set forth herein, theseTerms may only be amended, changed or modified in a written record sufficiently acknowledged andsigned by the authorized representatives of both parties. No waiver of any provision of these Terms willconstitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and UpbeetBrands’ failure to assert any right or provision under these Terms shall not constitute a waiver of suchright or provision. Except as otherwise provided herein, these Terms are intended solely for the benefitof the parties and are not intended to confer third party beneficiary rights upon any other person orentity. The words “include,” “includes” and “including” means “include,” “includes” or “including,” ineach case, “without limitation.” The parties hereto are independent parties, not agents, employees oremployers of the other or joint ventures, and neither acquires hereunder any right or ability to bind orenter into any obligation on behalf of the other.
