TERMS OF SERVICE
Last updated: Jan 8, 2020
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THESE WEBSITES.
These Terms and Conditions (the “Terms”) are a legal contract between you and Promix Nutrition, Inc. (“Promix”, “we”, “us” or “our”). By using the websites at Promixnutrition.com, Promixlabs.com, blog.Promixnutrition.com and Promixkids.com (collectively, the “websites”), including purchasing products from these websites, or by clicking a box that states that you accept or agree to these Terms, you signify your agreement to these Terms. If you do not agree to these Terms, you may not use these websites.
You agree that by using these websites, you are at least 18 years of age, or visiting under the supervision of a parent or guardian, and legally able to enter into a contract. If you are viewing and using the website on behalf of your employer or Promix, you represent and warrant that you are authorized to bind your employer and Promix to these Terms.
It is your responsibility to review these Terms periodically. We reserve the right to revise these Terms at any time without notice to you. If you use these websites after the revisions are made, you agree to such revisions. If you do not agree to these revised Terms, please do not use these websites.
We grant you a limited license to access and use these websites for your personal use, and to copy, distribute, and transmit the content of these websites only to the extent that such copying, distribution, and transmission is automatically done through your browser software incidentally to using these websites for your personal use or for the purpose of purchasing Promix products for resale if you are an authorized reseller of such products (“Authorized Reseller”) (see Section 24 below). This license does not include any resale or commercial use of these websites or its contents; any collection and use of any product listings, or descriptions; any derivative use of these websites or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or data gathering and extraction tools.
Except as permitted above, these websites or any portion of these websites may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Promix. You may not use any meta tags or any other "hidden text" utilizing Promix’s name or trademarks without the express written consent of Promix. Any unauthorized use terminates the permission or license granted by Promix.
We reserve the right to change any information, features and functions of these websites without prior notice. We reserve the right to stop supplying Promix® products at any time at our absolute discretion. We may refuse service, terminate accounts and/or deny access to any or all parts of these websites if you engage in any conduct or activities that we determine, in our sole discretion, violate these Terms, our rights or the rights of any third party. Use of these websites for any illegal or unauthorized purpose is strictly prohibited.
2. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of these websites, you warrant to us that you will not use these websites for any purpose that is unlawful or prohibited by these Terms. You may not use these websites in any manner, which could damage, disable, overburden, or impair these websites or interfere with any other party's use and enjoyment of these websites. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through these websites.
3. NO MEDICAL ADVICE
The information contained on these websites, or provided at your request, is provided for informational purposes only and is not intended to be medical or health care advice. While we may offer some products on these websites that are classified as food, beverage, or dietary supplements products regulated by the Food and Drug Administration, we do not market or sell such products for the purposes of diagnosing, treating, curing or preventing any disease. We do not recommend any particular form of medical treatment or that persons manage their own health problems without the advice of a licensed health care practitioner. Information found or received through these websites should not be used in place of a visit with, call to, consultation or advice from a health care provider. If you suspect you have a medical problem, or should you have any health care related questions, please promptly call or see your health care practitioner. Before using any products offered on these websites, carefully read all labels and heed all directions and cautions that accompany the products.
4. PRODUCTS AND SERVICES
The products and services made available on these websites are intended for personal use only or if you are an Authorized Reseller then solely for the purpose of purchasing Promix products for resale under Section 24 below . Except in the case of Authorized Resellers (see Section 24 below), you may not assign, transfer, re-market, resell or otherwise dispose of, such products and services without obtaining Promix’s prior written consent. Promix and its suppliers may cancel or modify purchases on these websites if it appears that they are the result of fraudulent or inappropriate activity, including those listed directly above in this section, or under other circumstances where it appears that the purchase contains or has resulted from a mistake or error. Other terms and conditions included on these websites, including return and shipping policies, may apply to your purchase and are incorporated by reference herein. We may revise and discontinue products at any time. We reserve the right to limit order quantity at any time without notice. Prices and promotions are subject to change without notice.
5. BILLING AND PAYMENT
Terms of payment are within our sole discretion, and unless otherwise agreed to by us, payment must be received by us prior to our acceptance of an order. Payment for the products ordered through the websites may be made through a valid credit card, debit card or other payment method offered through the websites.. Orders are not binding upon us, until accepted by us. We reserve the right to refuse and refund any order or part of any order placed on these websites. Additional payment terms for Authorized Resellers set forth in Section 24 below.
6. SHIPPING AND TAXES
Product is shipped FOB Shipping Point/FOB Origin. That is, you are the buyer or Authorized Reseller pay shipping costs and take responsibility for products when they leave the Promix warehouse. Separate charges for shipping and handling will be shown on the checkout page. Unless you provide us with a valid and correct tax exemption certificate applicable to the product ship-to location prior to our acceptance of the order, you are responsible for sales and all other taxes associated with your order, however designated, except for our franchise taxes and taxes on our net income. If applicable, a separate charge for taxes will be shown on the checkout page.
7. TITLE; RISK OF LOSS
Title to products passes from us to you on shipment from our facility. Loss or damage that occurs during shipping is your responsibility. Title to any software will remain with the applicable licensor(s).
8. RETURN POLICIES
Except for Authorized Resellers, products that are purchased directly from these websites may be returned by you within thirty (30) days of the date of purchase for a full refund. Only one opened package of any like product is eligible for return. All others of the same product must be in a factory sealed container to be eligible to be returned for a refund. The return policy for Authorized Resellers is set forth in Section 24 below.
Some services on these websites permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You are responsible for maintaining the confidentiality and security of that username and password, and are responsible for all activity on your account whether or not authorized. You also agree to promptly notify us at email@example.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to these websites.
We may suspend or terminate your account and your ability to use these websites or portion thereof for failure to comply with these Terms or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.
10. ELECTRONIC COMMUNICATIONS
When you use the websites, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the websites. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
11. FORUMS / BLOG / SOCIAL MEDIA
“Forum” means an area, site or feature offered as part of these websites that offers the opportunity for users to post content for viewing by one or more website users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, e-mail function (including electronic greeting cards and send-a-friend e-mails). Additionally, “Forum” includes any other website page created by Promix, on one or more social media pages, including, but not limited to Facebook, Twitter, Instagram and Pinterest.
You acknowledge that Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any content posted to a public Forum. We cannot guarantee the security of any information you disclose through any of these Forums; you make such disclosures at your own risk. You agree to use the Forums only to post, send and receive messages and material that are proper and related to a particular Forum. By way of example, and not as a limitation, you agree that when using a Forum, you will not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish or make any claims about any product or services that are false or misleading or post any testimonial about products or services that you have not used.
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
- Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
- Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
- Advertise or offer to sell or buy any goods or services for any business purpose, unless such Forum specifically allows such messages.
- Conduct or forward surveys, contests, pyramid schemes or chain letters.
- Download any file posted by another user of a Forum that you know, or reasonably should know, cannot be legally distributed in such manner.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
- Restrict or inhibit any other user from using and enjoying a Forum.
- Violate any code of conduct or other guidelines which may be applicable for any particular Forum.
- Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
- Violate any applicable laws or regulations.
You are and shall remain solely responsible for the content you post on or through these websites under your username or otherwise by you in any Forum and for the consequences of submitting and posting same. We have no duty to monitor any Forum, although we reserve the right to review material posted to a Forum and to remove any materials in our sole discretion. Promix, markets and sells various food, beverage and dietary supplement products. These products are not intended to diagnose, treat, cure, or prevent any disease. Promix, and the administrators of these websites and any Forum on these websites reserve the right to remove, edit, move or close any content item for any reason, including, but not limited to, comments that are in violation of the laws and regulations issued pursuant to the Federal Food, Drug and Cosmetic Act.
We reserve the right to terminate your access to any or all Forums at any time without notice for any reason whatsoever. We owe you no obligation, and therefore may refuse to post, deliver, remove, modify or otherwise use or take any action with respect to content you post on these websites.
Also, you should be skeptical about information provided by others, and you acknowledge that the use of any content posted on any Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Forum and we specifically disclaim any and all liability in connection therewith.
12. INTELLECTUAL PROPERTY INFRINGEMENT
Promix respects the intellectual property rights of others, and we ask you to do the same. Promix may, in appropriate circumstances and at our discretion, terminate service and/or access to these websites for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on these websites, please provide Promix’s designated agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at these websites, and information reasonably sufficient to permit Promix to locate the material.
- Information reasonably sufficient to permit Promix to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Promix’s agent for notice of claims of copyright or trademark infringement on these websites can be reached as follows: Promix Copyright Agent, 414 Broadway, FL 6, New York, NY 10013,; Fax: 224-365-6324; Email: firstname.lastname@example.org.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Promix designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Promix may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
Promix reserves the right, in its sole discretion, to terminate the account or access of any user of these websites who is the subject of repeated DMCA or other infringement notifications.
13. DISCLAIMERS AND LIMITATION OF LIABILITY
YOU ASSUME ALL RISK OF USING THESE WEBSITES AND THE PRODUCTS AND SERVICES OFFERED ON THESE WEBSITES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THESE WEBSITES AND THE PRODUCTS AND SERVICES OFFERED ON THESE WEBSITES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, UNLESS SPECIFICALLY SET FORTH OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROMIX AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROMIX DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THESE WEBSITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THESE WEBSITES OR THE SERVER THAT MAKES THESE WEBSITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PROMIX DOES NOT MAKE ANY WARRANTEES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THESE WEBSITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW LIMITATIONS OR EXCLUSIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
PROMIX AND ITS THIRD PARTY SUPPLIERS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THESE WEBSITES OR MATERIALS ON THE SITE, EVEN IF PROMIX OR ITS THIRD PARTY SUPPLIER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The technology underlying, and the entire contents of these websites, including but not limited to text, graphics, images, audio clips, digital downloads, data compilation or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of Promix, and is protected by copyright and other intellectual property or proprietary rights. The collective work includes works that are licensed to Promix. Copyright 2017 Promix Nutrition, Inc. All rights reserved.
15. PROMIX TRADEMARK GUIDELINES
Promix® and other Promix names and logos used on these websites are owned by Promix Nutrition, Inc. (“Promix Trademarks”). The Promix Trademarks are valuable assets of Promix and any unauthorized use of the Promix Trademarks is strictly prohibited. These Promix Trademark Guidelines contain detailed information about how to refer to Promix’s trademarks in different scenarios. These Trademark Guidelines are designed to ensure proper legal use of the Promix Trademarks and to prevent customer confusion that can result from improper or illegal usage.
- Permissible Uses
- Proper use of the Promix Trademarks is important. You may use the Promix trademarks to accurately describe or refer to Promix’s goods and services, provided you follow these Guidelines. For example, an authorized seller of Promix® Protein™ products may use the Promix Trademarks to indicate that it is selling Promix® Protein™ products.
- The font size of the phrases using the Promix Trademarks should not be larger than the surrounding font, and should not appear more prominently than the name/logo of your own product or business.
- You may not use the Promix Trademarks to direct your visitors to the Promix homepage and products page without our written permission.
- Prohibited Uses
- Do not use the Promix Trademarks in a way that would mislead consumers that you or your products or services are somehow related to, endorsed by, or affiliated with Albert Matheny or Promix.
- Never use a Promix trademark as a possessive or in a plural form. Correct example: The Promix® protein is wonderful.
Incorrect example: Promix’s protein is wonderful.
- Promix, Product, Service. You may not place your name, trademarks, service marks, or product names next to (or combine them with) the Promix Trademarks.
- You may not use the Promix logos, artwork, trade dress, designs or any combination of these, or any trademark including these (together, the “Logos”), for any purpose without prior written consent from Promix.
- Domain Names, Meta tags, Hidden Text. You may not incorporate the Promix Trademarks in any domain name, meta tag, or other hidden text in a web page without prior written authorization from Promix.
- Internet Advertising Keywords. You may not use or incorporate the Promix Trademarks in any internet advertising keyword, Ad Word, hashtag, or other term used to trigger advertising or search engine results without prior written permission from Promix.
- Merchandise Items. You may not manufacture, sell, or give away merchandise items bearing any of the Promix Trademarks without first obtaining a written license from Promix.
- Required Notices
- For federally registered trademarks owned by Promix, the ® symbol must accompany these trademarks (e.g., Promix®) and Promix should be properly identified as the owner of these federally registered marks in a footnote that reads, for example, “Promix® is a registered trademark owned by Promix Nutrition, Inc.”
- For pending applications or common law trademarks owned by Promix, the TM or SM symbol must accompany these trademarks and Promix should be properly identified as the owner of these trademarks in a footnote.
- Social Media Guidelines
- Do not use Promix Trademarks as any part of your social media account name, user name, page name, or as a community name.
- General Use Guidelines
- Use capitalization consistently.
- Spell the Promix Trademarks correctly and do not abbreviate them, or combine or hyphenate the respective words in the Promix Trademarks. Do not split the marks onto separate lines of copy.
- Use the Promix Trademarks only as adjectives modifying the generic term for the product or service and never use the Promix Trademarks as nouns or as verbs. Correct example: Promix® Protein is a great way to get your day started.
Incorrect examples: Adding Promix protein to my smoothies gives me energy for the whole day.
- All uses and goodwill associated with the Promix Trademarks will inure to the benefit of Promix.
- Reservation of Rights. Unless otherwise agreed to in writing, Promix reserves the right to terminate permission to copy, reproduce, or display the Promix Trademarks and to demand that the Promix Trademarks cease to be used at any time, in its sole discretion. Promix reserves the right to object to unfair uses or misuses of its Promix Trademarks and other violations of law, as well as uses that Promix in its sole discretion deems unlawful or improper, even if such use is not expressly prohibited by these Guidelines. Promix reserves the right to revise these Trademark Guidelines at any time, without notice.
- Contact Information
- For any questions regarding the proper usage of the Promix Trademarks, the proper notices, or to seek permission to use the Promix Trademarks please contact Promix at email@example.com.
You agree to indemnify, defend, and hold harmless the Promix Parties (as defined below), and each of their officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages, and costs, including reasonable attorneys' fees, resulting from any violation of these terms and conditions, or any activity related to use of these websites (including negligent or wrongful conduct) by you or any other person accessing these websites using your Internet account.
18. THIRD-PARTY LINKS
These websites may link to websites operated by third parties (“Third Party Sites”). Promix has no control over these Third Party Sites, all of which have separate privacy and data collection practices, independent of Promix. Promix is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Site, any website accessed from a Third Party Site or any changes or updates to such Third Party Sites. These Third Party Sites are only for your convenience and therefore you access them at your own risk. You acknowledge that you bear all risks associated with access to and use of content provided on a Third Party Site and agree that Promix is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third Party Site if you have any concerns regarding such links or the content located on any such Third Party Site.
19. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Dispute Resolution and Arbitration; Class Action Waiver provision (“Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and Promix Parties as defined below. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.
Please read this Provision carefully. It provides that all Disputes between you and Promix Parties shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Provision, “Promix Parties.” means Promix Nutrition, Inc. and its parent, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Promix Parties. regarding any aspect of your relationship with Promix Parties. whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Promix Parties’ licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give the Promix Parties an opportunity to resolve the Dispute. You must commence this process by emailing written notification to email@example.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If any of the Promix Parties does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the relevant Promix Parties may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because these websites and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Promix Parties may initiate arbitration in either New York, New York or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, any of the Promix Parties may transfer the arbitration to New York New York in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – The relevant Promix Parties will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Promix as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator.
Class Action Waiver
The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and all of the relevant Promix Parties specifically agree to do so following initiation of the arbitration.
You understand and agree that by entering into this Agreement you and Promix Parties are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Promix Parties might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your account or other relationship with the Promix Parties. Notwithstanding any provision in this Agreement to the contrary, we agree that if Promix makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Promix Parties to adhere to the language in this Provision if a Dispute between you and the Promix Parties arises.
20. LOCAL LAWS; EXPORT CONTROL
Promix controls and operates these websites from its headquarters in the United States of America and the products and material offered on these websites may not be appropriate or available for use in other locations. If you use these websites or the products outside the United States of America, you are responsible for compliance with applicable local laws.
21. APPLICABLE LAW
Your use of these websites shall be governed in all respects by the laws of the state of New York, U.S.A., without regard to its choice of law provisions.
22. TYPOGRAPHICAL ERRORS
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, Promix shall have the right to refuse or cancel any orders placed for product listed at the incorrect price, whether or not the order has been confirmed and your credit card or debit card charged. If your credit card or debit card has already been charged for the purchase and your order is canceled, Promix shall promptly issue a credit to your credit card or debit card account in the amount of the charge.
The provisions relating to Intellectual Property Infringement, Copyrights, Promix Trademark Guidelines, Disclaimers and Limitation of Liability, Indemnification, Dispute Resolution and Arbitration; Class Action Waiver, Local Laws; Export Control, Applicable Law, and Typographical Errors shall in all events survive any termination of your account or any termination of these Terms.
24. PROMIX AUTHORIZED RESELLER PROVISIONS
Promix Nutrition, Inc. (“Promix”) has implemented these Promix Nutrition, Inc. Authorized Reseller Purchase Terms and Conditions (the “Terms”), which apply to Resellers of Promix products in the United States of America. By purchasing Products (as hereinafter defined) from Promix for retail sale, you (hereinafter “Reseller,” “you,” or “your”) agree to adhere to the Terms. Please read these terms carefully. Unless and until such status is otherwise revoked by Promix, Reseller shall be considered an “Authorized Reseller” hereunder.
You may be permitted to purchase Promix products as a Reseller. To become a Reseller, you must complete the application at https://promixnutrition.com/pages/wholesale and provide applicable business license and resale tax certificate. Promix reserves the right in its sole discretion to approve or disapprove any application for Reseller status and to terminate any person’s status as a Reseller at any time for any reason or for convenience, and with or without notice. Upon termination, Reseller shall immediately cease any further purchase, resale or use of the Promix products.
- Reseller is granted the non-exclusive, non-transferable right to purchase Products from Promix for resale to consumers. The “Products” include only those Promix products which are available for wholesale purchase from Promix. Reseller is not authorized to resell any other products manufactured by or sold by Promix. Reseller is, and at all times shall be, an independent contractor in all matters relating to these Terms, and shall not be deemed an agent, employee, franchise or partner of Promix. Reseller and its personnel will not be entitled to any of the benefits that Promix may make available to its employees, including, but not limited to, group health or life insurance, profit sharing or retirement benefits.
II. Terms of Sale.
(a) Purchase Orders and Products.Orders for Products (“Purchase Orders”) made by a Reseller shall be handled pursuant to Promix’s then-current Product order processing procedures, which may be amended by Promix at any time in its sole and absolute discretion. Products shipped by Promix will have a minimum shelf life of ninety (90) days from the day of order. Promix reserves the right to reject any Purchase Order, in whole or in part, for any reason. Promix reserves the right, at any time in its sole and absolute discretion and without any obligation, liability, or advance notice to a Reseller, to discontinue the sale of or limit the production of any Product, to terminate or limit deliveries of any Product, to alter the design or composition of any Product, and to add new and additional products to or delete existing Products from its product lines.
(b) Product Shipment.Title to the Products passes from Promix to a Reseller on shipment from Promix’s facility. Loss (including theft) or damage that occurs during shipping is the responsibility of the Reseller.
(c)Payment Terms. Reseller shall pay for the Products and shipping in advance upon placement of the Purchase Order. Payment may be made via bank wire or ACH transfer, or using a valid credit card, debit card, or other payment method offered through Promixnutrition.com. A payment error, including, but not limited to, a failed charge or chargeback, may result in termination of Reseller's status as a Promix Authorized Reseller, as determined by Promix in its sole discretion.
(d) Product Returns
- (i) Reseller may contact Promix if not 100% satisfied with a purchase to request a return. Promix does not accept returns or provide refunds on food Products, Protein Puff Bars, Kids Protein Puff Bars, Tigey Bars, Chocolate Bars, and Liquid Protein Shakes. Promix will not accept returns or issue credits for items returned to Reseller by the Reseller’s customers. Other Products may be returned up to 30 days from the date Promix received Reseller’s Purchase Order. Such returns are subject to a restock fee of $1.70 per unit and will only be accepted if the Products are new and unused, in their original unopened packaging. Reseller is responsible for shipping the Product to Promix’s warehouse. Promix will not be responsible for tracking return shipments. After the returned Products are received at Promix’s warehouse and confirmed by Promix to be in new condition, Reseller will be refunded in the original form of payment. Return shipping costs will not be refunded. Shipping charges associated with your Purchase Order will not be refunded. Refunds may take 30 days to process.
- (ii) If Reseller’s order is Returned to Sender, Promix will refund Reseller in the original form of payment after the Products are received at Promix's warehouse. Such returns are subject to a restock fee of $1.70 per unit. Promix will not be responsible for tracking shipments. Shipping costs will not be refunded. Refunds may take 30 days to process.
- (iii) In the event a Reseller receives damaged or expired Products upon delivery, Promix requires the Reseller to submit photographs detailing the damage or expiration date of the affected product. After Promix confirms that the Products shipped were damaged or expired, Promix will provide detailed instructions on when and how to proceed with destroying the defective product. Promix will refund the Reseller in the original form of payment. Refunds may take 7-12 business days to process. Resellers shall not return the Products to Promix but shall instead destroy the damaged or expired Products and shall submit proof of destruction to Promix. Resellers shall not offer damaged or expired Products for sale.
III. Manner of Sale.
- Reseller shall sell the Products only as set forth herein. Otherwise, the Products may not be eligible for certain services and benefits, including, wherever permitted by law, coverage under any Product guarantees.
(a) Authorized Customers.Reseller shall sell Products solely to end users of the Products. Reseller shall not sell to anyone a quantity of the Products greater than that generally purchased by an individual for personal use. Reseller shall not sell or transfer any of the Products to any person or entity for re-sale without the prior written consent of Promix. This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other Resellers, or any other person a Reseller knows or has reason to know intends to re-sell the Products. Reseller shall not engage in drop-shipping or similar selling practices.
(b) Geographic Location of Sales.Reseller shall not market, sell, ship, or invoice Products to customers outside of the United States of America or to anyone a Reseller knows or has reason to know intends to ship the Products outside of the United States of America without the prior written consent of Promix.
(c)Online Sales. Reseller shall not market or offer for sale the Products on or through any publicly accessible website, including, without limitation, any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of Promix.
(d) Sales Practices and Inventory.Reseller will be solely responsible for all aspects of its operation, including human resources, information technology, insurance and legal compliance. Reseller shall support Promix’s sales programs and use best efforts to advertise, promote, market, and sell the Products to its authorized customers and, as applicable, meet or exceed minimum sales commitments. Reseller is prohibited from, either directly or indirectly through third parties, selling or distributing the Products through multi-level marketing, pyramid selling, network marketing, referral marketing, or similar selling practices. Reseller shall conduct its business in a reasonable, lawful, and ethical manner at all times, whether engaged in the sale of Promix Products or other products, shall not engage in any deceptive, misleading, or unethical practices or advertising at any time nor make any warranties or representations concerning the Products except as expressed or authorized by Promix. Reseller shall do nothing to bring the reputation of Promix into disrepute. Reseller shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Products. Further, Reseller shall carry an inventory of the Products adequate to meet the needs of, and to furnish prompt and efficient delivery of Products to, its customers.
(e) Product and Packaging Alterations Prohibited.Reseller shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled products or the bundling of products, whether with Promix products or other brands of similar products), and other alterations to Products or their packaging are not permitted. Tampering with, defacing, or otherwise altering any serial number, UPC code, batch or lot code, or other identifying information on Products or their packaging is prohibited. Reseller shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products, or place any trademarks, logos or designs on the Products that are not approved in writing by Promix. Reseller shall not advertise, market, display, or demonstrate non-Promix products together with the Products in a manner that would create the impression that the non-Promix products are made by, endorsed by, or associated with Promix.
(f) Customer Service.Reseller shall exercise best efforts to achieve a high level of customer satisfaction. Reseller and Reseller’s sales personnel shall familiarize themselves with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise end-user customers on the selection and safe use of the Products, as well as any applicable return policy. Reseller must make itself available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly. Reseller and Reseller’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Promix. Reseller agrees to cooperate fully with Promix in any investigation or evaluation of such matters.
IV. Product Care and Quality Controls.
- Reseller shall care for the Products as set forth herein.
(a) Product Storage and Handling.Reseller shall exercise due care in storing and handling the Products, store the Products in a cool, dry place, on lower racks, away from direct sunlight, extreme heat, and dampness, and adhere to any additional storage guidelines specified by Promix from time to time.
(b) Product Inspection.Within three (3) days of receiving the Products, Reseller shall inspect the Products for damage, defect, broken seals, or other nonconformance (collectively, “Defects”). Reseller shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from its inventory. Reseller shall not sell any Products that are expired. If any Defects are identified, Reseller must not offer the Product for sale, and must promptly report the Defects to Promix at firstname.lastname@example.org.
(c)Recalls and Consumer Safety. To ensure the safety and well-being of the end users of the Products, Reseller shall cooperate with Promix with respect to any Product recall or other consumer safety information dissemination effort.
V. Warranty Disclaimer.
- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, ALL PROMIX PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROMIX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE, OR OTHERWISE.
VI. Intellectual Property.
- Reseller acknowledges and agrees that Promix owns all proprietary rights in and to the Promix brands, including, without limitation, Promix Diet and Promix Upgraded, names, logos, trademarks, service marks, trade dress, copyrights, and other intellectual property related to the Products (the “Promix IP”). Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Promix IP solely for purposes of marketing and selling the Products as set forth herein. Reseller’s use of the Promix IP shall be in conformance with any guidelines specified by Promix, including those contained within the Promix Terms of Service, located at www.promixnutrition.com/pages/terms-and-conditions This license will cease upon termination of Reseller’s status as a Reseller. Promix reserves the right to review and approve, in its sole discretion, Reseller’s use or intended use of the Promix IP at any time, without limitation. All goodwill arising from Reseller’s use of the Promix IP shall inure solely to the benefit of Promix.
- Promix reserves the right to terminate Reseller’s status as a Reseller at any time for any reason or for convenience, and with or without notice. Upon termination, Reseller shall immediately cease (i) purchasing and selling the Products; (ii) acting in any manner that may reasonably give the impression that Reseller is a Reseller of Promix Products or has any affiliation whatsoever with Promix; and (iii) using all Promix IP.
- Reseller shall, and hereby does, indemnify, defend and hold Promix harmless from any claims or damages (inclusive of Promix’s attorneys’ fees) made against Promix as a result of (a) any negligence, misrepresentation, error or omission on the part of Reseller or its representatives, (b) any claims, warranties or representations made by Reseller or Reseller’s employees or agents which differ from those made by Promix on its products, (c) any claim by a customer relating to any support or services provided by Reseller or any contractor of Reseller relating to the Products, or (d) any breach of these Terms by Reseller.
IX. Limitation of Liability.
- PROMIX SHALL NOT BE LIABLE TO RESELLER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS. PROMIX’S AGGREGATE LIABILITY FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY IT ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE AGGREGATE AMOUNT PAYABLE BY RESELLER TO PROMIX DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSATION OF ANY DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
X. Availability of Injunctive Relief.
- Notwithstanding anything to the contrary herein, if there is a breach or threatened breach of Sections 3 (Manner of Sale), 4 (Product Care and Quality Controls), 6 (Intellectual Property), or 7 (Termination), it is agreed and understood that Promix will have no adequate remedy in money or other damages at law. Accordingly, Promix shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Terms of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by Promix to exercise any right(s) herein or to insist upon full compliance by Reseller with Reseller’s obligations herein shall constitute a waiver of any provision herein or otherwise limit Promix’s right to fully enforce any or all provisions and parts thereof.
- Promix reserves the right to audit and/or monitor Reseller’s activities for compliance with the Terms, including, but not limited to, inspection of Reseller’s facilities and records concerning the Products.
(a) Promix reserves the right to update, amend, or modify the Terms upon written or electronic notice to Reseller. Unless otherwise provided, such amendments will take effect immediately and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the Promix IP, or use of any other information or materials provided by Promix to Reseller under the Terms following notice will be deemed Reseller’s acceptance of the amendments.
(b) No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.
(c)Reseller Contact Information. Reseller agrees to maintain accurate and up-to-date company information and to promptly notify Promix of any change to its telephone number, mailing address, or email address.
(d) Force Majeure.Promix shall not be deemed to be in breach hereof or liable to Reseller in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond Promix’s control, including without limitation, fire, flood, terrorist threats or acts, riot or other civil unrest, war, invasion, hostilities, strikes or other labor disputes, embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices from regular sources or on account of shortages thereof, delays or failures of any of Promix’s suppliers to deliver, acts of God or of a public enemy, the effect of any existing or future laws, acts or regulation of any applicable federal, state or local government, or any other commercial impracticability.
(e) If any provision of the Terms is held contrary to law, the remaining provisions shall remain valid.
(f) The following provisions shall survive the termination of the Terms: Section 6 (Intellectual Property); Section 8 (Indemnification); Section 12(f) (Survival); Section 12(g) (Governing Law and Venue); Section 12(h) (Waiver of Jury Trial).
(g) Governing Law and Venue.The Terms and any dispute arising under them shall be governed by, construed, and enforced in accordance with the laws of the State of New York, without regard to its choice of law rules. In the event of a dispute over the terms or performance under the Terms, Reseller expressly submits to personal jurisdiction and venue in the federal or state courts in New York County, New York.
(h)Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES’ ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.
XIII. International Resellers - Additional Terms.
- National and international regulations may restrict or prohibit the shipment or importation of certain products into your country, or may impose duties, tariffs or other charges on such shipments or imports. We are not responsible for determining whether products that you order may lawfully be imported into your country. Each Reseller is solely responsible for ensuring that its resale of Promix products complies with all applicable laws, rules, regulations and orders in any jurisdiction or territory in which the Reseller operates or resells the products. Reseller shall be solely responsible for complying with any and all import and export control laws and regulations of the United States and any other country or jurisdiction into which it has been permitted to distribute the Promix products.
- Reseller shall be responsible for all taxes of any nature which become due with regard to resale of Promix products, including, but not limited to, all sales, use, VAT, GST and other taxes, but excluding taxes on Promix's income. In addition, Reseller shall pay all import and export duties, government permit fees, license fees, customs fees and similar fees levied as a result of the existence or operation of these Terms and any penalties, interest, collection costs and withholding costs associated with any of the foregoing. You must be aware that we have no control over any such additional costs, and cannot predict in advance whether there will be any and, if so, how much they will be. We recommend that you contact your local customs office to thoroughly inquire about import regulations and applicable duties, tariffs or other charges, and to obtain all necessary import permits, licenses or authorizations, before you place your order.
- Due to customs and export or import restrictions some Promix products may not be allowed for importation into certain countries, and some countries prohibit the sale of products containing certain ingredients. As a result, we may not be able to fulfill an order for such products if you live in one of those countries. However, you remain solely responsible for determining if products that you order can be lawfully imported into and sold in your country.
- Resellers are responsible for the products once their order has shipped including products that may be rejected, confiscated or destroyed by customs officials. We do not accept returns due to problems relating to not following customs regulations or any export rule, law, regulation or order. We will not provide any refunds for any orders that are seized by customs officials, refused or held for delivery, abandoned by the intended recipient, that cannot be delivered due to an address error, or that contain products that cannot be sold in your country.
- Promix reserves the right to approve all online marketing and sales materials, including websites, blogs, and online stores pertaining to the Promix products prior to publication.