Last Updated: May 4, 2023
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE OR THE FRESH TRI APPLICATION AND/OR PLATFORM (herinafter the “Fresh Tri Software”) OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.
THIS AGREEMENT ALSO CONTAINS HEALTH NOTICES WHICH YOU SHOULD READ BEFORE REGISTERING FOR AN ACCOUNT, OR USING ANY OF THE TRAININGS OR OPINIONS EXPRESSED IN THE SITES, INCLUDING MOBILE APPS.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
YOUR CONTINUED USE OF THIS SITE OR THE FRESH TRI SOFTWARE AND PARTICIPATION IN ANY PROMOTION IS SUBJECT TO YOUR CONTINUED COMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THIS SITE OR PARTICIPATE IN OUR PROMOTIONS.
CONTINUED ACCESS AND USE OF ANY SITE, THE FRESH TRI SOFTWARE OR PARTICIPATION IN ANY PROMOTION AFTER CHANGES HAVE BEEN MADE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT THEN IN EFFECT. YOU AGREE THAT YOU WILL REVIEW THIS AGREEMENT PERIODICALLY AND THAT YOU SHALL BE BOUND BY THIS AGREEMENT AND ANY MODIFICATIONS TO IT.
What’s Contained in This Agreement
Click on the links below to navigate to that section of the Agreement.
This Terms and Conditions Agreement (the “Agreement”) is a legal agreement exclusively between you and us governing your use of our websites, the Fresh Tri Software and other online or mobile services, properties, software, Promotions, Mobile Apps, or other applications that link to this Agreement (each a “Site,” and collectively “Sites”). By continuing to use our Sites, you agree that such use is legally sufficient consideration under this Agreement.
This Highlights section is intended to provide you with a basic overview of the contents of this Agreement. However, please read this entire Agreement for a complete understanding of the terms you are agreeing to. The meaning of capitalized words can be found in the complete Agreement. If there is a conflict between the terms of this “Highlights” section and the terms of the complete Agreement, the terms of the complete Agreement shall control.
(b) Our Rights
(d) Your Content
(e) Important Things to Know
Terms Applicable to All FreshTri Promotions
Our Sites may offer programs where visitors or Users receive benefits in connection with certain actions taken in connection to the Sites (each, a “Promotion”). If you elect to participate and opt-in to any Promotion, the terms of this “Promotional Contests, Sweepstakes, and Giveaways” section apply to you, as do any terms in the section corresponding to the applicable Promotion.
Eligibility and Suspension: Promotions are only open to legal residents of the fifty (50) United States (and the District of Columbia), who are at least eighteen (18) years of age at the time of entry. Our employees as well as the immediate family (spouse, parents, siblings and children) and household members of each such employee are not eligible to participate in Promotions. Promotions are void where prohibited. Corporations or other entities or organizations of any kind are not eligible to participate in Promotions. You may only participate in a Promotion using one Account. We reserve the right to suspend, modify, or discontinue the eligibility of any person who uses or is suspected of using or participating in a Promotion in a manner inconsistent with this Agreement or any federal or state laws, statutes or ordinances. Note that this suspension or discontinuance may apply to multiple Promotions. Similarly, such action by you may result in you losing benefits of the Promotion. In addition to suspension or discontinuance of eligibility, we have the right to take appropriate administrative and/or legal action against such persons. It is your responsibility to ensure any rewards or benefits you earn under a Promotion are accrued correctly.
Termination of Promotions: Promotions continue until we terminate the applicable Promotion, which we may do at any time, with or without notice to you. Upon discontinuation of the Promotion you may lose all benefits under that Promotion, including those yet to be redeemed. We also reserve the right to suspend or modify any Promotion, at our discretion, at any time. By continuing to participate in the Promotion, you accept our modifications. We will make reasonable efforts to provide you notice of changes prior to implementation.
Rewards: Some Promotions require contact information from you to facilitate your participation, such as for sending you something you earned in connection with the Promotion. In most cases, this information is pulled from your Account. It is your responsibility to make sure the information in your Account is accurate. In connection with a Promotion, you may earn a physical item. Physical items cannot be shipped to P.O. Boxes. If you fail to provide your home mailing address within five (5) days of the date when you are notified, you will forfeit the physical item. You may be responsible for shipping and handling of physical items received through the Promotion, and we are not responsible for lost or stolen physical items. You are responsible for the payment of all taxes which may result from participation in a Promotion.
Disputes and Disclaimer: All questions or disputes regarding eligibility for a Promotion, your compliance with this Agreement, accrual of rewards or benefits, or anything else related to a Promotion, will be resolved by us in accordance with the Disputes, Arbitration, and Class Action Waiver section of this Agreement. By participating, you agree that all decisions we make regarding a Promotion are final. All Promotions are subject to all applicable laws and regulations. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH ANY PROMOTION, WHICH ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS.
All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Sites (the “Content”) are protected intellectual property of, or used with permission or under license by, our Company. Such Content may be protected by copyright, trademark, patent or other proprietary rights and laws. This includes the entire Content of each Site, copyrighted and protected as a collective work. All intellectual property rights associated with the Sites, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title or interest in any Content by accessing or using the Sites. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any Content available on a Site is strictly prohibited.
Subject to your compliance with this Agreement, we grant you a limited license to access and use the Sites and their Content for personal, informational purposes. No Content from the Sites may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of the rights’ owner, except that you may download or print one copy of specific Content or software made available for your downloading or printing for your personal, non-commercial home use, subject to your compliance with this Agreement and retain the same solely for as long as you continue to be permitted to access the Sites. To use Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such Content pursuant to any licenses associated with such Content, (3) not copy or post such Content on any networked computer or broadcast it in any media, (4) make no modifications to any such Content, and (5) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of a Site or the Content.
While using a Site, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You may not use a Site for any fraudulent or unlawful purpose, and you may not take any action to interfere with a Site or any other party’s use of a Site. In addition, we expect users of the Sites to respect the rights and dignity of others. For example, you may not do any of the following without our consent:
Linking: You are granted a limited, non-exclusive right to create text hyperlinks to the Sites for informational purposes, provided such links do not portray us in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking Site does not contain any material that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, exclusionary of other people or beliefs, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising. Additionally, notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in a Site’s root directory, we grant to the operators of public search engines permission to use spiders to copy Content from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such Content, but not caches or archives of such Content. We may revoke these permissions at any time.
Sites may allow you to download certain Content, applications, software, and other information or materials. The Company makes no representation that such download will be error or malware free or fit for a particular purpose. Certain downloads may be subject to a separate agreement either with the Company or a third party, for example an agreement with a mobile application store.
Some of our Sites may be mobile or other applications that you can download to your phone, tablet, or other mobile device (“Mobile App”) via a third-party service such as an application store. Your use of the third-party service may be subject to additional terms related to that service from the service provider (“App Store Provider”). WE ARE NOT LIABLE IN ANY WAY FOR, AND MAKE NO REPRESENTATIONS OR WARRANTIES RELATING TO, ANY SUCH THIRD PARTY SERVICE OR ANY CLAIM OR DAMAGE RESULTING FROM YOUR USE OF SUCH THIRD PARTY SERVICE.
You acknowledge that this Agreement and your use of a Mobile App is between you and us only, and not with any App Store Provider or its affiliates or subsidiaries. As between us and an App Store Provider, we are solely responsible for the Mobile App and its Content. If anything in this Agreement conflicts with any usage rules for the Mobile App from an App Store Provider, such terms from the App Store Provider control (only so far as those terms conflict with this Agreement, and then exclusively for your use of the Mobile App). All rights you have to use the Mobile App are for use only on appropriate mobile devices (which may require branding from the App Store Provider or other entities) and are non-transferable, except that the Mobile App may be accessed and used by other accounts associated with you via features like Apple’s Family Sharing (or similar features from other App Store Providers) or volume purchasing. We are solely responsible for providing any maintenance and support services for the Mobile App, as specified in this Agreement or as required under applicable law. No App Store Provider has any obligation whatsoever to furnish any maintenance and support services for the Mobile App, nor any warranties for the same.
WE DISCLAIM ALL WARRANTIES RELATED TO ANY MOBILE APP. However, in the event that the Mobile App fails to conform to any applicable warranty that we cannot disclaim according to applicable law, you may have the right to notify the App Store Provider, and the App Store Provider may refund the purchase price for the Mobile App. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO APP STORE PROVIDER WILL HAVE ANY OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MOBILE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IS OUR RESPONSIBILITY.
We, not the App Store Provider, are responsible for addressing any claims relating to the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (iv) claims that the Mobile App infringes a third party’s intellectual property rights as well as the investigation, defense, settlement and discharge of any such intellectual property infringement claim. By using the Mobile App, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that the App Store Provider, and its subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement and your use of the Mobile App, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
You are responsible for any information, text, reviews, posts, images, videos or other materials or content that you post on a Site, upload to us, or transmit through our Sites (“User Content”). You agree, represent and warrant that any User Content you post on a Site or transmit through our Sites is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such User Content. You shall not upload, post or otherwise make available on or through a Site any User Content protected by copyright, trademark, or other proprietary right of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content.
PLEASE DO NOT POST OR SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. UNLESS SPECIFICALLY REQUESTED BY US ALONG WITH OUR COMMITMENT TO TREAT CONFIDENTIALLY, PLEASE DO NOT POST OR SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY. By sending any ideas, concepts, know-how, proposals, techniques, suggestions, or other User Content to us, you agree that, except as otherwise explicitly communicated by us: (i) we are free to use such User Content for any purpose, (ii) such User Content will be deemed not to be confidential or proprietary (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us. Be aware that we have no obligation to keep User Content confidential unless explicitly stated.
We may host message boards, user-generated content, Promotions, reviews, blogs, games, and other interactive features or services through which users can post or upload User Content or otherwise interact with our Sites or something on them (each, a “Forum”). We do not endorse User Content posted in Forums, cannot guarantee the accuracy or authenticity of such User Content, and are acting only as a passive conduit for such User Content. User Content may include suggestions for uses of our products that have not been evaluated or approved by us; we do not recommend such uses. You should never use our products in any manner other than as is described on the Sites. WE RESERVE THE RIGHT TO REMOVE ANY FORUM CONTENT, OF ANY VARIETY, AT ANY TIME FOR ANY REASON.
Forums are Public: You acknowledge and agree that Forums are public spaces and that your participation in such Forums creates no expectation of privacy. Further, you acknowledge that any User Content you communicate in Forums may be seen and used by others. You understand that our staff, outside contributors, or other users connected with us may participate in Forums or other aspects of the Sites and may employ anonymous usernames when doing so. Any User failing to comply with this Agreement may be expelled from and refused continued access to Forums in the future. However, we are not responsible for User Content that you or others choose to communicate in Forums, or for your actions or the actions of other users. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON OR THROUGH THE SITES, YOU DO SO AT YOUR OWN RISK.
Our Rights: You acknowledge and agree that we reserve the right (but have no obligation) to do one or all of the following, at our sole discretion: (a) evaluate User Content before allowing it to be posted on a Site or any Forum; (b) monitor User Content and Forums; (c) alter, remove, reject, or refuse to post or allow to be posted, without notice to you, any User Content, for any reason or for no reason whatsoever; provided, however, that we shall have no obligation or liability to you for failure to do so or for doing so in any particular manner; and/or (d) disclose any User Content, and the circumstances surrounding its transmission, to any third party in order to operate a Site, to protect us, our Site visitors or others, to comply with legal obligations or governmental requests, to enforce this Agreement, or for any other reason or purpose we deem appropriate. If you see User Content on our Sites that you believe violates this Agreement, please contact us.
Sharing Site Content: Our Sites may also allow you to make recommendations or send Content to others, for example through an “email this” feature that will send content to the email address you provide. Only provide contact information for individuals who have told you they want to receive the Content. By providing someone’s contact information, you represent and warrant that they have confirmed to you that they want to receive the Content.
BY PARTICIPATING IN A TEXT MESSAGING YOU ARE AGREEING TO THE DISPUTES, ARBITRATION, AND CLASS ACTION WAIVER OF THIS AGREEMENT AS WELL AS THE REST OF THE TERMS HEREIN, INCLUDING THE LIMITATION OF LIABILITY.
Some of our Sites allow you to register for accounts specific to you in order to access and use certain Content, products, services, Promotions, and other purposes (“Account”).
In general, you are not obligated to register for an Account in order to access our website. However, certain sections and features of some of the Sites, including Mobile Apps, are available only to users who have registered for an Account (“Registered Users”). We may reject, and you may not use, a user ID (or e-mail address) for any reason at our sole discretion. For example, we may reject a user ID (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that violates the intellectual property or other rights of any person; or that is offensive. You may only have one active Registered User Account on each Site at any given time and you may not allow other people to use your Account to access a Site or participate in a Promotion.
If you are a Registered User, we expect you to accurately maintain and update any information about yourself that you have provided to us. You agree that you are responsible for all activities that occur under your Account, and for maintaining the confidentiality of your login credentials and restricting access to your computer or mobile device so others may not access a Site in violation of this Agreement. In addition, you agree to sign out from your Account at the end of each session if you are using a device that is shared with other people.
You agree to notify us of any unauthorized use of your Registered User username, login ID, other login credentials, or any other breach of security that you become aware of involving or relating to a Site by contacting us as soon as possible with the contact information provided below. We reserve the right to take any and all actions we deem necessary or reasonable to maintain the security of our Sites and your Account, including without limitation, terminating your Account, or changing your password or other login information. WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
Sites may contain expert opinions. Information on Sites identified as expert opinion, such as but not limited to, Live Sessions, On Demand Sessions, and Iterative Sessions, or other expert opinion accessed from a Site by hyperlink, represents the opinions of these respective experts, which are not necessarily those of the Company. Those statements should not be taken as medical advice or statements about a training effectiveness or suitability for treatment of a medical condition. You should always consult a qualified physician for matters related to your health.
Sites may allow you to leave reviews, opinions, comments, or testimonials, all of which is User Content. If you leave such review, opinion, comment, or testimonial on another site, we may (but are not required to) reach out with a separate agreement to further define our rights in such User Content.
Descriptions and graphic representations of product features or functionality on Sites are for informational purposes only and may not completely reflect the current products or their appearances. We reserve the right to change product descriptions and graphic representations at any time, and we are not responsible for variations between a product description or representation, and the actual product. Technological issues, such as your device settings, may alter how a product feature or functionality appears on a Site.
WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON ANY SITE TO THE MAXIMUM EXTENT ALLOWED BY LAW. CLAIMS CONTAINED IN TESTIMONIALS, BLOGS, DESCRIPTIONS, OR OPINIONS HAVE NOT BEEN SUBSTANTIATED SCIENTIFICALLY OR BY THE FOOD AND DRUG ADMINISTRATION. YOU UNDERSTAND THAT NONE OF OUR SITES PROVIDE MEDICAL ADVICE, MAKE CLAIMS ABOUT TRAINING EFFECTIVENESS, OR DETAIL TREATMENTS FOR SPECIFIC ILLNESSES OR AILMENTS.
Please view the Disclaimer of Medical Advice for more information.
Any information, statements, opinions or other information provided by third parties and made available on our Sites are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, product, service, offer, statement, or other third-party Content on our Sites.
We may provide on the Sites, solely as a convenience to users, links to websites, social media pages, mobile applications, or other services operated by other entities. If you click these links, you will leave our Sites. If you decide to visit any external link, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked website is authorized to use any of our trademarks, logos or copyright symbols.
Use of the features and services on our Sites may allow or require you to use tools or applications provided by other entities, such as messaging services. These third party tools or applications may be subject to other terms and conditions and/or privacy policies and you should be aware of such other terms, conditions and policies before using such features or services.
YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEBSITES AND RESOURCES
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA“). This section describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material. If we receive proper notification of claimed copyright infringement, our response to these notices may include removing or disabling access to the allegedly infringing material and/or terminating or suspending users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the provider of the allegedly infringing content so that they may make a counter notification pursuant to the DMCA. It is our policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect their copyrighted works that we determine are reasonable under the circumstances.
If you believe that any Content on a Site infringes upon any copyright which you own or control, you may send a written notification to our designated copyright agent (the “Designated Agent”), identified below, with the following information:
Designated Agent: Joshua Leichter
Address: P.O. Box 1217, Felton, CA 95018
Phone: (781) 710 – 4712
To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material.
We may terminate users who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer. If you receive an infringement notification from us, you may file a counter notification pursuant with our Designated Agent pursuant to the DMCA. To file a counter notification, please provide our Designated Agent with the following information:
Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Further, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of your counter notice, unless Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Site.
We may revise or otherwise change or update this Agreement, or any of our policies or practices to which this Agreement applies, from time to time. We will use reasonable efforts to notify you of such changes. However, please check the “Last Updated” legend at the top of this page to see when this Agreement was last revised. When changes are made to this Agreement they will become immediately effective when published on this page unless otherwise noted. We encourage you to periodically review this Agreement―there may have been changes to our policies that may affect you. If you do not agree to the Agreement as modified, then you must immediately discontinue your use of our Sites. Your continued use of a Site will signify your continued agreement to this Agreement as revised. We will make reasonable efforts to notify you of material changes to this Agreement. Such efforts might include posting notice on the Site, an email to the address we have on file, or a message in your Account.
We may assign this Agreement at any time with or without notice to you. You may not assign or sublicense this Agreement or any of your rights or obligations under this Agreement without our prior written consent.
This Agreement applies exclusively to your access to, and use of, the Sites, features and services on the Sites and Promotions and does not alter in any way the terms or conditions of any other agreement you may have with us for products, services, programs or otherwise. Additional policies and terms may apply to use of specific portions, features and services of a Site, or use of the Sites by businesses or institutions, are included as part of this Agreement whether they reference this Agreement or not.
Other policies and agreements are typically found by navigating a Site, by checking Site headers and footers, and by reviewing hyperlinked terms in relevant Site pages, or in a Mobile App’s profile settings.
Any sweepstakes, contests, or other Promotions made available through a Site may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms set forth herein and which, in addition to describing such Promotion, may have eligibility requirements, such as certain age or geographic restrictions. It is your responsibility to read the applicable rules to determine whether your participation, registration, submission and/or entry are valid and eligible; you agree to read and abide by the applicable rules.
Should we employ you, none of the materials provided on a Site constitute or should be considered part or of an employment contract or an offer for employment.
The Sites and this Agreement are in effect until terminated by you or us. We may terminate this Agreement by notifying you using any contact information we have about you or by posting such termination on a Site, including in your Account. You may terminate this Agreement by providing written notice of termination to us, including your detailed contact information and any Account information or other Site credentials, using the information in the Contact Us section below. In addition to any right or remedy that may be available to us under applicable law, we may suspend, limit, or terminate all or a portion of your access to a Site or any of its features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. We may be protected for liability from these actions under the Communications Decency Act, 47 U.S.C. § 230.
The provisions of this Agreement concerning protection of intellectual property rights, authorized use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.
Upon any such termination, (i) you must destroy all Content obtained from the Sites and all copies thereof; (ii) you will immediately cease all use of and access to the Sites; (iii) we may delete or disable access to any of your User Content at any time; (iv) and we may delete your Registered User Account at any time. Termination of this Agreement will end your participation in any Promotion or features or services on a Site and forfeit any benefits to you attributable to such Promotion, feature or service. You agree that if your use of a Site is terminated pursuant to this Agreement, you will not attempt to use that Site under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefore. Your use of a Site after termination will be a violation of this Section, which survives any termination.
Even after the termination of this Agreement or of your Account or access to a Site, any User Content you have posted or submitted may remain on a Site indefinitely.
Our Sites are not designed to appeal to minors, and we do not knowingly attempt to solicit or receive any information from children under eighteen (18) years of age. YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE TO ACCESS AND USE OUR SITES. If you are under the age of majority in your home state, which is eighteen (18) years in most states, you may not establish a registered Account with us, and you should use our Sites only with the supervision of a parent or guardian who agrees to be bound by this Agreement by so supervising you. Additionally, certain Sites or sections of our Sites, as well as Promotions, programs and commerce we may offer on a Site, may be explicitly limited to people over the age of majority. If you are not old enough to access our Sites or certain sections or features of our Sites, you should not attempt to do so.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at OnGuard Online. Please note that we do not endorse any of the products or services listed at such Sites.
IN THE EVENT OF A MEDICAL EMERGENCY, CONTACT EMERGENCY SERVICES IMMEDIATELY.
FRESH TRI® IS NOT A MEDICAL ORGANIZATION AND WE CANNOT OFFER YOU MEDICAL ADVICE. YOU SHOULD CONSULT WITH YOUR PRIMARY HEALTH CARE PROVIDER BEFORE STARTING ANY PLAN OR PRACTICE THAT COULD RESULT IN CHANGES TO YOUR HEALTH, WHETHER NEGATIVE OR POSITIVE, EVEN IF CHANGE TO YOUR HEALTH IS NOT YOUR REASON FOR USING OUR SITES OR SERVICES.
IF YOU HAVE ANY MEDICAL CONDITION, DIAGNOSED OR UNDIAGNOSED, YOU SHOULD NOT USE THE SERVICES OFFERED ON THE SITES WITHOUT CONSULTING WITH YOUR HEALTHCARE PROVIDER AND RECEIVING THEIR PERMISSION TO DO SO.
THE CONTENT CONTAINED ON SOME OF OUR SITES MAY CONTAIN INFORMATION ABOUT TRAININGS, BEHAVIORAL MODIFICATION PROCESSES, AND/OR THERAPIES THAT ARE NOT EVALUATED OR REGULATED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION. INFORMATION ON OUR SITES IS INTENDED AS AN EDUCATIONAL AID ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT. IT IS NOT A SUBSTITUTE FOR A PROFESSIONAL MEDICAL DIAGNOSIS, NOR DOES IT REPLACE THE NEED FOR SERVICES PROVIDED BY MEDICAL PROFESSIONALS.
ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN, PHARMACIST OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION OR TREATMENT OR A CHANGE IN YOUR PERSONAL CARE OR HEALTH CARE REGIME. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON A SITE. WE ARE NOT RESPONSIBLE FOR THE RESULTS OF YOUR USE OF THE CONTENT, INCLUDING, BUT NOT LIMITED TO, YOU CHOOSING TO SEEK OR NOT TO SEEK PROFESSIONAL MEDICAL CARE, OR YOU CHOOSING, OR NOT CHOOSING, SPECIFIC TREATMENT BASED ON THE CONTENT.
THE FRESH TRI WEIGHT LOSS FEATURES ARE NOT SUITABLE FOR PREGNANT INDIVIDUALS. WEIGHT LOSS DURING PREGNANCY MAY RESULT IN TERMINATION OF THE PREGNANCY. PLEASE CONSULT YOUR PRIMARY HEALTH CARE PROVIDER BEFORE MAKING ANY CHANGES TO YOUR PERSONAL CARE OR HEALTH CARE PRACTICES.
WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF THE CONTENT AVAILABLE ON A SITE OR ANY OTHER WEBSITES LINKED TO OR FROM A SITE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF ANY PROMOTION. DOWNLOADING OR OTHERWISE OBTAINING ANY CONTENT THROUGH A SITE IS DONE AT YOUR OWN RISK. THE CONTENT OF A SITE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT.
WE AND OUR AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, SHAREHOLDERS, SUCCESSORS, ASSIGNS, CONTRACTORS AND OTHER SERVICE PROVIDERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR THE INABILITY TO USE A SITE OR PROMOTION, A SITE’S CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.
RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA OR PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.
You agree to indemnify, defend, and hold us and the Releasees harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) your breach of any provision of this Agreement; (ii) your activities in connection with a Site; or (iii) the Content or other information you provide to us through a Site. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) Disclaimer of Warranty; (b) Limitation of Liability; (c) Indemnity; and (d) under Disputes, the Arbitration and Class Action Waiver and the governing law provisions (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of this Agreement are found to violate an established legal right.
If any provision of this Agreement is held to be invalid or unenforceable, it shall be replaced in interpretation by a valid and enforceable term that most closely aligns with the intent of the original provision. If that is not possible, the provision shall be removed, and the rest of the Agreement will be enforceable.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
No Class Actions: EXCEPT FOR COORDINATED CLAIMS (AS DEFINED BELOW), YOU AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND WE ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. Further, except for Coordinated Claims (defined below), unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your or our claims respectively, and may not otherwise preside over any form of a representative or class proceeding.
If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, and shall be severed from the remainder of this Agreement.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Seeking Arbitration: If you believe you have a dispute with us, prior to initiating arbitration or filing a claim in small claims court, you must first call our customer service representatives and present your claim or dispute to allow us the opportunity to resolve the claim or dispute. Similarly, if we believe we have a dispute with you, our customer service representatives will first contact you in an attempt to resolve the dispute. If the dispute cannot be resolved by customer service and either you or we intend to seek arbitration, the party wishing to initiate arbitration must send to the other party, a written notice of the claim (“Notice”). Your Notice to us must be delivered by certified mail and addressed to: Fresh Tri, Inc. P.O. Box 1217, Felton, CA 95018. If we initiate arbitration, we will send a written Notice to an email address or other contact information you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com. Except in the event of a Coordinated Claim (as defined below), if you are required to pay a filing fee, after we receive Notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000 or the arbitrator determines the claims are frivolous, in which event you will be responsible for filing fees.
Hearing: If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.
Award: In the event arbitration awards you damages of an amount at least $100 greater than our last documented settlement offer, we will pay your awarded damages or $2,500, whichever is greater.
Coordinated Proceedings: If twenty-five (25) or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims“), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for Fresh Tri shall each select five (5) cases to proceed first in arbitration in a bellwether proceeding (“Test Cases“). The remaining cases shall not be filed in arbitration until the first ten (10) have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five (5) cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against Fresh Tri. Individuals bringing Coordinated Claims shall be responsible for up to US$250 of their filing fees or the maximum permissible under the applicable arbitration rules.
Injunctive Relief: Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Confidentiality: The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Governing Law and Rules: This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
Our Sites and the services, product features and functionality are expressly limited to the United States, unless otherwise disclosed. WE MAKE NO REPRESENTATION THAT THE INFORMATION AND MATERIALS ON ANY SITE, INCLUDING WITHOUT LIMITATION THE INFORMATION AND OTHER MATERIALS PROMOTING THE PRODUCTS IDENTIFIED ON THAT SITE, ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS OTHER THAN THE LOCATION FOR WHICH THE SITE IS DIRECTED. WE DO NOT REPRESENT OR WARRANT THAT A SITE OR PROMOTION OR ANY PART THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES.
If you have questions about this Agreement, or if you have technical questions about the operation of a Site, please contact us through the Support page in our Mobile App, or by writing to us at email@example.com. For business inquiries, please contact us at firstname.lastname@example.org. If you have any questions or comments about our Company or our products or have other customer service needs, please click here for information on contacting our customer service representatives.
Additionally, under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.