Terms and Conditions of Sale
Last Revised: April 22, 2020
These Terms and Conditions of Sale shall control the sale of NuttZo LLC (“NuttZo”, “we”, “our” or “us”) products, including snack products, butter spreads, Organic 2go products, and any other similar products produced by NuttZo (hereinafter collectively referred to as the “NuttZo Products”). “NuttZo” shall mean NuttZo LLC and/or its subsidiaries and affiliates. NuttZo’s acceptance of any order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth herein. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s failure to submit written objection, or from Buyer’s acceptance of all or any part of the goods or services ordered. No addition to or modification of these terms and conditions shall be binding upon NuttZo unless expressly agreed to in writing. If Buyer’s purchase order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any order by NuttZo shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by NuttZo of any of these terms and conditions. Unless alternate terms are contained in a contract or other writing signed by an authorized representative of NuttZo, these terms and conditions shall control. Any reference to Buyer’s purchase order by NuttZo shall not affect or limit the applicability of the terms and conditions contained herein.
- PRICE. Unless otherwise confirmed by NuttZo, (a) all prices, quotations, shipments and deliveries by NuttZo are F.O.B. NuttZo’s facility (“Shipping Point”); (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to NuttZo’s price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer (excluding shipments by Amazon), including any increase or decrease in such charges prior to shipment.
- TAXES. Any tax which NuttZo may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any goods or services described herein, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the price of such goods or services. Buyer shall promptly pay the amount thereof to NuttZo upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to NuttZo.
- CANCELLATION. Orders cannot be canceled or modified by Buyer after acceptance except with the express written consent of NuttZo. Orders are processed immediately and, once submitted, NuttZo is unable to cancel or make any modifications to an order. Customers are required to review all product, address, and payment information before submitting.
- DEDUCTIONS. In no event is Buyer authorized to deduct any amounts from the amounts owed NuttZo unless specifically authorized in writing by NuttZo.
- DEFAULT IN PAYMENT. If Buyer fails to make payments on any contract between Buyer and NuttZo in accordance with NuttZo’s terms, NuttZo, in addition to any other remedies available to it, may, at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are re-established; or (b) cancel the unshipped balance of any order. Past due payments shall be charged the maximum interest allowed by law.
- SHIPPING POINT. Unless otherwise specified by NuttZo, NuttZo reserves the right to produce and ship all or any part of the goods specified in any order from any of its facilities.
- INTERNATIONAL SHIPPING. NuttZo ships internationally. At this time, international orders are shipped via various carriers. Rates vary based on total weight and final destination. Pricing does not include duties, insurance costs, or value-added taxes, if any. If assessed, these charges are the responsibility of the package recipient, who will be billed by the local Customs office.
- SPECIFICATIONS. NuttZo shall have no obligation to ensure that any goods or services purchased from NuttZo meet Buyer’s unique specifications and/or other requirements unless such specifications and/or other requirements are set forth in Buyer’s purchase order and expressly accepted by NuttZo.
- TRANSPORTATION. NuttZo will use all reasonable efforts to comply with Buyer’s requests as to method of transportation, but NuttZo reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by NuttZo to be unavailable or would compromise product quality or safety. In any such case, NuttZo shall promptly notify Buyer of any such change.
- DAMAGED GOODS. If any goods arrive at Buyer’s destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to NuttZo. Any loss or shortage caused by damage in transit will be for account of Buyer.
- CLAIMS. Unless otherwise expressly agreed by NuttZo, claims respecting the condition of goods, compliance with specifications or any other matter affecting goods shipped to Buyer must be made promptly and in no event later than thirty (30) days after receipt of the goods by Buyer.
- LIMITED LIABILITY. NUTTZO SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY, TO THE EXTENT PERMITTED BY LAW, FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, DEGRADATION IN VALUE OF BRANDS OR OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EXCEPT AS PROVIDED IN A SEPARATE DOCUMENT RELATED TO THE PURCHASE OF THE PRODUCTS ENTERED INTO BY THE PARTIES, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NUTTZO HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
- TERMINATION. NuttZo may terminate any order or any part thereof as allowed by these terms. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits. Any claim for adjustment not asserted within ninety (90) days from the date of such termination shall be deemed to have been waived by Buyer.
- WAIVER. Waiver by NuttZo of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of NuttZo to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
- CHOICE OF LAW AND VENUE. All orders shall be governed by and interpreted in accordance with the laws of the State of California. Litigation of disputes arising under this order shall be brought only in the state or federal courts of the State of California, County of San Diego.
- GENERAL PROVISIONS.
- Assignment. Buyer shall not assign any order or any interest therein without the written consent of NuttZo. Any such actual or attempted assignment without NuttZo’s prior written consent shall entitle NuttZo to cancel such order upon written notice to Buyer.
- Severability. If any provision herein is found void or unenforceable, the remaining provisions shall remain valid and enforceable according to their terms. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability set forth in this Agreement shall remain in effect.
- No Independent Contractor or Other Relationships. Nothing herein contained shall be deemed to create any agency, joint venture, partnership, franchise, employment, or independent contractor relationship between NuttZo and any Buyer or other person or entity.
- Force Majeure. NuttZo shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes; acts of God, severe weather conditions, strikes, lockouts or labor disruption; lockdowns or quarantines; wars, riots, or embargo delays; raw material market conditions, the inability to procure supplies or raw materials; shortages of transportation equipment, fuel or labor; telecommunications, network, computer, server, storage device, hardware, software and/or Internet disruptions, failures or downtimes; unauthorized access to NuttZo’s websites and/or any telecommunications, network, computer, server, storage device, hardware, software and/or Internet systems operated by or on behalf of NuttZo; or any other circumstance or cause beyond the reasonable control of NuttZo. Additionally, manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order.
- Headings. The Section headings herein are for the purposes of reference only.
Last Revised: April 22, 2020
PLEASE READ THESE TERMS CAREFULLY BEFORE USING OUR WEBSITES. YOUR ACCESS AND/OR USE OF A WEBSITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT FULLY ACCEPT THESE TERMS, DO NOT USE OR ACCESS A WEBSITE. NuttZo may, in its sole discretion, change the Terms at any time. NuttZo will inform you of any material changes by posting notice on the Website. Your continued use of the Website after the change shall be considered your acknowledgement and acceptance of the changes, and the most-recent version of the Terms controls your use of the Website. If you do not agree to any modification of the Terms, you should stop using the Website. If you are a registered user, you may cancel your account by contacting us at [email protected] and you will not be bound by the new terms. Otherwise, the new terms will take effect thirty (30) days after our posting of the change. Our personnel do not have the right to modify these Terms verbally.
THESE TERMS CONTAIN (1) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF YOUR RIGHT TO BRING CLAIMS AS CLASS ACTIONS; (2) A LIMITATION ON YOUR RIGHT TO BRING CLAIMS AGAINST NUTTZO MORE THAN ONE (1) YEAR AFTER THE RELEVANT EVENTS OCCURRED; AND (3) THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS. SEE SECTION 21 OF THESE TERMS, BELOW, FOR DETAILS ON THESE PROVISIONS.
- Use of the Websites. The Websites are general purpose Websites and are not targeted towards children under the age of 13. You must be 13 years or older to access or use the Website. If you are under 13, then you may not use or access the Website under any circumstances. If you are 13 or older and younger than 18, then you may access and use the Website only if you have your parents’ or guardians’ prior permission. By accessing or using the Website, you represent that you are at least 18 or that you are at least 13 and have your parents’ prior permission to do so. If you are a parent or guardian providing permission for a child age 13 or older to access or use the Website, then you agree to accept full responsibility for that child’s use of and access to the Website under these Terms.
- License. Subject to your compliance with these Terms, we grant you a personal, non-exclusive, non-transferrable, limited right to access and use the Websites solely for your personal, non-commercial use. We may revoke your access and use of a Website at any time (including if you violate these Terms), and nothing herein constitutes a representation that the Websites will be available to you for your access or use.
- Additional Terms. We may post separate legal notices, rules or other terms on particular pages of a Website (the “Additional Terms”) that will govern your use thereof and supersede portions of these Terms, including any promotions or other similar features and the terms of any affiliate Website or event Website. If these Terms conflict with such Additional Terms, such Additional Terms shall govern and apply to your use of that portion of a Website.
- Restrictions on Use of the Website. You agree that you will access and use the Websites only in a lawful manner and only in accordance with these Terms. You further represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you are not listed on any U.S. Government list of prohibited or restricted parties. You further agree that you will not:
- Create or maintain any link from another website to any page on a Website without NuttZo’s prior written permission;
- Run or display a Website (or any material on a Website) in frames or through similar means on another site, application or location, without NuttZo’s prior written permission;
- Modify the information or materials located on a Website in any way or reproduce or publicly display, perform, or distribute or otherwise use any such materials for any public, non-personal or commercial purpose;
- Collect any data or information regarding users and/or devices, including user names, personal information, preferences, email addresses or accounts for the purpose of sending unsolicited communications;
- Use any device, software, method or routine to interfere or attempt to interfere with or burden the proper function of a Website or bypass or circumvent any electronic protection measures on a Website;
- Transmit or upload to a Website any item containing any malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of a Website or adversely affect a user; or
- Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of a Website;
- Submit or post to a Website any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity.
- Account. You may be required to create an account to access or use certain areas of a Website or you may choose to create an account. If you choose to create an account, you are responsible for maintaining the confidentiality of your account (including your username and password information), and also for restricting access to such information, your account and your device. You agree to accept responsibility for all activities that occur under your account or password. Additionally, you agree to notify us immediately of any unauthorized access or use of your account or password, or any other breach of security. We reserve the right to terminate your account or registration at any time. We do not sell products or services to children and do not permit children to have accounts. We sell products and services to adults, who can purchase items with a credit card or other payment method. If you are under the age of 18, you may not have an account and you may use the Websites only with the permission and help of a parent or guardian. We may also terminate or modify your account in order to protect your account or NuttZo’s systems if we believe that your account information may be compromised as a result of your personal device being infected with a virus or other malicious code, or due to other theft of your device or account information. This may include proactively changing your password. Should this need arise, we will make reasonable efforts to inform you of any modifications made, via the email address listed for your account. You or NuttZo may suspend or terminate your account or NuttZo may suspend or terminate your use/access of a Website at any time, for any reason or for no reason. You are personally liable for any activity prior to such termination, including any orders that you place or charges that you incur prior to termination.
- Product and Service Purchases; Return Policy.
- You may be offered the opportunity to purchase products or services. In addition to these Terms, any purchase may be subject to any terms and conditions displayed in connection with such purchase.
- All information that you provide in connection with a purchase or other transaction through the Website will be accurate, complete and current. You authorize NuttZo (or an authorized third party service provider) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any transaction you make on the Website and will pay all charges incurred in connection with any such transaction.
- With respect to purchases of NuttZo-branded products purchased in a store, you may return products for a full refund (based on the same form of payment used at the time of purchase) up to thirty (30) days after purchase if you have an original sales receipt or packing slip. If you do not have a sales receipt, then you may return the unused products in exchange for a credit to purchase NuttZo products in the amount of the then-current selling price for the item returned. For online orders, we accept returns if you still have the jar of NuttZo, order #, and the product was found to be damaged in some way, or the wrong item was sent.
- Order Confirmation and Cancellation. We may confirm online orders via email, however, the receipt of an email order confirmation does not constitute our acceptance of an order nor our confirmation of an offer to sell a product or service. We reserve the right, without prior notice and at any time: (a) to limit the order quantity on any product or service and/or to refuse service or fulfillment of any order, in whole or in part, or to any customer; (b) to discontinue any product or service; (c) to bar any user from making or completing a transaction; and (d) to limit or impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion. For clarification, orders may be limited or cancelled at any time including after receipt of a confirmation or shipping email. For products purchased from our Websites using a credit card, an authorization may be placed on your credit card when you place an order. You will be charged for an item (and your purchase of such item will be complete) when the item in your order is shipped.
- Shipping Charges and Limitations. When a product order is placed, it will be shipped to the address designated by the purchaser, as long as such shipping address is compliant with the shipping restrictions contained on the Website. Risk of loss and title for products purchased from a Website pass to you upon delivery to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. Shipping charges may exceed actual shipping costs.
- Intellectual Property. All text, graphics, information, images, content, video, data, music, code, software, trademarks, trade names, service marks, logos, fonts, custom colors, and other material displayed on, available via, or that can be downloaded from a Website (excluding User Content (as defined below)) and the look and feel of the Website (collectively, “NuttZo IP”), are either the property of, or used with permission by, NuttZo or our service providers and licensors, and are protected by copyright, trade dress, trademark and other laws. Additionally, the design, arrangement, and collection of the NuttZo IP on the Websites is the exclusive property of NuttZo and is protected by applicable copyright laws. We expressly reserve all intellectual property rights in all NuttZo IP. Nothing contained on the Websites grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any NuttZo IP without the express written permission of NuttZo or such third party owner. You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Nuttzo IP without the prior written permission of NuttZo.
- Website Content. All features, content, availability, specifications, products and prices of products and services described on the Websites may change at any time without notice. Sizing/weight charts and similar descriptions are approximate and are provided for convenience purposes only. We attempt to ensure that information on the Websites is complete, accurate and up-to-date. Despite our efforts, the information on the Websites may occasionally be inaccurate, incomplete or out-of-date. We make no representation as to the completeness, accuracy or currency of any information on the Websites. For example, products or services included on a Website may be unavailable, may have different attributes than those listed, or may carry a different price than what is stated on the Website. In the event of a pricing error or discrepancy on a Website with respect to products or services, we reserve the right to cancel any orders (or partial orders) for such products or services.
- Content Posted by You.
- As a user of a Website, you may provide and/or post content, including reviews, comments, suggestions, profile information, photographs, videos, messages, communications and/or other materials (collectively, “User Content”) and/or share it with other users. Subject to any licenses and rights expressly granted herein, as between you and us, you own any User Content posted by you. User Content is and will be considered non-confidential and non-proprietary.
- You are solely responsible for any User Content you post, publish or display on a Website or transmit to others. You will post only User Content you believe in good faith to be true and accurate, and you will not post to a Website any User Content that is false, inaccurate, misleading, fraudulent, unlawful, defamatory, obscene, offensive, profane, or violates the rights of a third party. We may, but are not obligated to, monitor or review any User Content. NuttZo assumes no responsibility for any User Content, whether arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We shall have no obligations to use, return, review, remove, or respond to any User Content (unless required by law). We retain the right to remove any or all User Content for any or for no reason, including User Content that, in our sole discretion, violates these Terms and reserve the right to terminate your access to the Websites. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of users and/or devices using or accessing the Websites. Unless prohibited by law, we are not responsible for claims resulting from our cooperation with law enforcement or court orders.
- You represent and warrant to NuttZo that you own all right, title, and interest in and to any User Content that you provide or upload to the Website, or that you have sufficient rights, whether by implication, estoppel, or otherwise, to grant NuttZo the rights discussed in these Terms. By providing or uploading any User Content to the Website, unless otherwise stated in a separate agreement entered into and signed by you and us in connection with your upload of any User Content, you grant NuttZo and our service providers a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such User Content throughout the world in any form, media, software, or technology of any kind now known or hereafter devised. In addition, you waive all moral rights in the User Content or warrant that all moral rights applicable to such content have been waived. With your consent, you grant NuttZo the right to use your name and/or likeness in connection with the reproduction or distribution of such material.
- You understand and acknowledge that NuttZo may be working on the same or similar idea as any ideas, expression of ideas or other materials you submit within your User Content. NuttZo shall be free to use for any purpose any such ideas submitted to the Website or posted as User Content.
- User Content Posted by Others. Third parties may post information on our Websites. You acknowledge and agree that we have limited control over the User Content posted to the Websites, or any links to other Websites, including the content of any messages or posts and manner of posting, and that we do not guarantee the accuracy, integrity or quality of User Content. All User Content, including advice and opinions posted by users, comprises the views and responsibilities of those who post such User Content and does not necessarily represent our views. We are not obligated to review or remove User Content and you understand that, by using a Website, you may be exposed to User Content that is offensive, indecent or objectionable.
- Third Party Links. A Website may contain links to or functionality interacting with third party Websites that are not owned, operated or controlled by NuttZo. All such links and/or functionality are provided solely as a convenience and do not constitute an endorsement by NuttZo. If you use these links, you will leave the Website and we are not responsible for any content, materials or other information located on or accessible from any other site. We also do not guarantee that links or functionality provided by third parties will be available or error-free, uninterrupted, free from viruses and/or unauthorized access, or otherwise meet your requirements. IF YOU DECIDE TO ACCESS ANY OTHER SITE LINKED TO OR FROM THE WEBSITES, YOU DO SO ENTIRELY AT YOUR OWN RISK.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN CONNECTION WITH ANY APPLICABLE WRITTEN WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, YOU EXPRESSLY AGREE THAT THE WEBSITES, INFORMATION, MATERIALS, AND PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION WITH THE WEBSITES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. YOUR USE OF A WEBSITE AND OF ANY USER CONTENT IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUTTZO, AND ITS AFFILIATES, SERVICES PROVIDERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE WEBSITES, INFORMATION, MATERIALS, AND PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION WITH THE WEBSITES. NUTTZO MAKES NO WARRANTY THAT ANY WEBSITE’S SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.
- Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NUTTZO OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, SUPPLIERS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE WEBSITES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LOSS OF PROFIT, LOSS OF BUSINESS, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE WEBSITES, INFORMATION, MATERIALS, AND/OR PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION WITH THE WEBSITES, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR NONPERFORMANCE OF THESE TERMS, THE ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, A WEBSITE, ANY WEBSITE LINKED THERETO, THE INFORMATION OR MATERIALS CONTAINED IN ANY OR ALL SUCH WEBSITES, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH, WHETHER THE BASIS OF LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES OR OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING FROM ANY PROPERTY DAMAGE, BODILY OR PERSONAL INJURIES, OR DEATH. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NUTTZO’S MAXIMUM LIABILITY TO YOU SHALL NOT EXCEED $100 WITH REGARD TO ANY CLAIM FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITES, INFORMATION, MATERIALS, AND/OR PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION WITH THE WEBSITES, INCLUDING WITHOUT LIMITATION, YOUR ACCESS TO OR USE OF THE WEBSITES, OR PURCHASE OF ANY PRODUCTS OR OTHER SERVICES THROUGH A WEBSITE.
NUTTZO does not assume any responsibility, and TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW shall not be liable for any damages to, or viruses or other harmful or malicious code that may infect or affect, your computer, device, telecommunication equipment, or other property caused by or arising from OR IN CONNECTION WITH your access to, use of, or browsing of a Website, linking to a third party site, or your downloading of any materials or information from a Website and will not be liable for any loss or damage arising from the unlawful, malicious, negligent or wrongful conduct of third parties.
IN THE EVENT OF ANY PROBLEM WITH THE WEBSITES, OR ANY MATERIAL OR CONTENT ON THE WEBSITES, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE WEBSITES. THIS LIMITATION OF RELIEF IS A MATERIAL PART OF THE BARGAIN BETWEEN YOU AND NUTTZO. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH A WEBSITE, SUBJECT TO THE EXCLUSIONS BELOW, YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICE IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE APPLICABLE WEBSITE OR ACCOMPANYING YOUR PURCHASE.
- Indemnity. You will defend, indemnify and hold NuttZo and its respective affiliates, licensors, directors, officers, members, managers, employees, agents and representatives, harmless from and against any losses, costs, expenses or damages of any nature whatsoever, including attorneys’ fees and court costs, arising from any claim, cause of action, suit or demand of any third party due to, arising out of or relating to your breach (or alleged breach) of these Terms.
- Copyrights. If you believe any User Content or any other aspect of a Website infringes your copyright, you should send written notice of the alleged copyright infringement to the following address:
3525 Del Mar Heights Road #728
San Diego, CA 92130
or by email at [email protected]
Such notice must meet the requirements of the Digital Millennium Copyright Act by providing the following information:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the allegedly infringing material is located on the Website;
- Your name, address, daytime telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A statement by you, made under penalty of perjury, affirming that the above information in your notice is accurate, and that you are the owner of the copyright at issue or are authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.
- Counter-Notice. If you believe that your User Content was removed or disabled but is not infringing; or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law, to post and use the content in your User Content; you may send a counter-notice to us (at the physical or email address identified in Section 18 of these Terms, above) containing the following information:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the federal and state courts in San Diego County, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, NuttZo may send a copy of the counter-notice to the original complaining party informing that person that NuttZo may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at NuttZo’s sole discretion.
- Choice of Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of California (except that any conflict of law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded), including, without limitation, in connection with the arbitration of any dispute or claim arising out of or relating to these Terms pursuant to Section 21 of these Terms, below. These Terms will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your state of residence. Subject to Section 21 of these Terms, below, you also expressly consent and agree to submit to the exclusive jurisdiction and venue in the federal and state courts in San Diego County, California. NuttZo and you hereby irrevocably waive any objection, including any objection to personal jurisdiction, the laying of venue or based on the grounds of forum non conveniens, which either of NuttZo or you may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. By registering for an account or placing an order, you represent that the products or services ordered will be used only in a lawful manner and as intended. The Websites are not intended to subject NuttZo to the laws or jurisdiction of any state, country or territory other than that of the United States, and we do not represent or warrant that the Websites or any part thereof is appropriate or available for use in any jurisdiction besides the United States. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the possession, use and/or sale of any product or service purchased via a Website.
- Arbitration. The parties agree to arbitrate disputes and claims arising out of or relating to these Terms or any other subject matter under these Terms.
- The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and the arbitration shall be administered by the AAA; provided, however, that the arbitrator(s) shall be knowledgeable in industry standards and practices and the matters giving rise to the dispute, that the power of the arbitrator(s) shall be limited to interpreting these Terms as written and that the arbitrator(s) shall state in writing the reasons for the award and the legal and factual conclusions underlying the award. The place of arbitration shall be San Diego County, California. The AAA Rules and fee information are available at www.adr.org, by calling the AAA at 1-800-778-7879. THESE TERMS MEMORIALIZE A TRANSACTION IN INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS.
- YOU AGREE THAT, BY ENTERING INTO THESE TERMS, BOTH PARTIES WAIVE THE RIGHT TO A TRIAL BY JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION. BOTH PARTIES AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING. If this specific paragraph is found to be unenforceable, then the entirety of the arbitration provisions set forth in these Terms shall be null and void and rendered of no further effect with respect to the specific claim at issue.
- Any arbitration award over $75,000 may be appealed to a three-person panel appointed by the same arbitration institution that rendered the original award. Any such appeal must be filed within thirty (30) days and the appeal will be decided, based on that institution’s appeal rules, within one hundred twenty (120) days of filing. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act. The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator(s), via a telephonic hearing, or by an in-person hearing as established by AAA Rules. The parties agree that the arbitrator(s) must give effect to the provisions of these Terms.
- You may opt out of the arbitration provisions set forth in these Terms. If you do so, neither you nor NuttZo may require the other to participate in an arbitration proceeding. To opt out, you must notify NuttZo in writing at the address set forth below within thirty (30) days of the date that you first became subject to this arbitration provision.
- NuttZo, LLC
3525 Del Mar Heights Road #728
San Diego, CA 92130
Attn: Arbitration Opt-out
Your written notice must include your name and address, as well as a clear statement that you wish to opt out of the arbitration provisions set forth in these Terms.
- If the prohibition against class action and other claims brought on behalf of third parties contained in this Section 21 is found to be unenforceable, then all of this Section 21 will be null and void. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THE ARBITRATION PROVISIONS SET FORTH IN THESE TERMS ARE DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY. For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from these Terms, and rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein.
- Claims Limitation. YOU HAVE ONE (1) YEAR TO BRING A CLAIM AGAINST NUTTZO, UNLESS YOU OPT OUT. You must bring any claim against NuttZo within one (1) year after the date on which the claim arose, unless applicable law provides that the normal statute of limitations for that claim may not be shortened by agreement. If you do not bring a claim within this period, you waive, to the fullest extent permitted by law, all rights you have to such claim and NuttZo will have no liability with respect to such claim. You may opt out of this limitation, in which case the normal statute of limitations will apply. To opt out, you must notify NuttZo in writing at the address below within thirty (30) days of the date that you first became subject to this provision.
3525 Del Mar Heights Road #728
San Diego, CA 92130
Attn: Claims Limitation Opt-out
Your written notice must include your name and address, as well as a clear statement that you do not wish this Section to apply. This Section shall survive the termination of these Terms.
- Notwithstanding the mandatory arbitration provisions of these Terms, each of NuttZo and you reserve the right to seek and obtain injunctive or other equitable relief necessary to enforce their legal rights, including, without limitation, non-monetary claims associated with these Terms. NuttZo and you stipulate and agree that the proper forum for such injunctive or other equitable relief shall be as set forth in Section 20 of these Terms, above, which shall have exclusive jurisdiction over such claims.
- Force Majeure. NuttZo shall not be liable for any failure of performance or equipment of any kind (including the Website) due to causes beyond its control, including but not limited to: acts of God, fire, flood, or other catastrophes, any law, order, regulation, direction, action, or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over NuttZo, or of any department agency, commission, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments, or of any civil or military authority; national emergencies; insurrection; riots, wars; or strikes, lock-outs, work stoppages, or other labor difficulties.
- Third-Party Beneficiaries. NuttZo’s affiliates are intended third-party beneficiaries under these Terms with the right to enforce the provisions that directly concern products or services offered or provided by such affiliates or to which they have rights.
- Additional Assistance. If you do not understand any of the foregoing Terms or if you have any questions or comments, we invite you to contact us in the following manner:
3525 Del Mar Heights Road #728
San Diego, CA 92130