Terms and Conditions
Last Update: Jan 23, 2020
IMPORTANT - PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS BEFORE ACCESSING, USING, OR PLACING AN ORDER OVER www.trycellulitemd.com. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (see Sections 4, 11 and 12). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
The use of www.trycellulitemd.com (hereafter "Website"), which is owned and maintained by Advanced Nutraceuticals, LLC ("ADV," "we," "our," "us"), is governed by the terms and conditions set forth below. We offer the Website, including all information and products available, to you, the user, conditioned upon your acceptance of all terms and conditions stated here. By accessing, using, or placing an order over the Website, you agree to the terms set forth herein. If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Website in any manner or form whatsoever.
THIS IS A BINDING AGREEMENT. THESE TERMS AND CONDITIONS ("TERMS") TOGETHER WITH OUR PRIVACY POLICY AND GUARANTEE FORM A LEGALLY BINDING AGREEMENT ("AGREEMENT") BETWEEN YOU ("YOU") AND ADV. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE PRODUCTS AND SERVICES PROVIDED BY ADV, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 13 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 13 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
ADV reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference by posting updates and/or changes to our Website. It is your responsibility to check this page periodically for changes. You can find the most recent version of these Terms at www.trycellulitemd.com/terms.html Use of the Website after such changes constitutes acceptance of such changes. Any new features or tools which are added to the current Website shall also be subject to the Terms.
Please note that all orders are a one-time order. We do not enroll customers in any type of autoship programs or automatic rebills.
Table of Contents:
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Using the Website
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Your Content, Testimonials, Pics, and Videos
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Accuracy of Website Information
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HEALTH AND FOOD ALLERGY DISCLAIMER
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The Guarantee
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Our Privacy Policy and Your Personal Information
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Order Placement and Acceptance; Method of Payment; Sales Tax
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Accuracy of Billing and Account Information; Fraud
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Shipping Fees
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Our Intellectual Property
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DISCLAIMERS OF WARRANTIES
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LIMITATIONS OF LIABILITIES
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DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
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Third-Party Websites
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Indemnification
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DMCA Notice and Takedown Procedures; Copyright Agent
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Electronic Communications
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Severability
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Termination
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Domestic Use and Export Restriction
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Modification of Terms and Conditions
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Our Entire Agreement
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Additional Terms
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Contacting Us
1. Using the Website.
(a) Eligibility. Except as expressly provided below, the Website may only be used by individuals who can form legally binding contracts under applicable law. Without limitation, minors are prohibited from using the Website or making a purchase over it.
(b) Compliance. You must comply with all of the Terms, the policies referred to below, and all applicable laws, regulations, and rules when you use the Website.
(c) License and Restrictions. Subject to your continued compliance with the Terms, you are hereby granted a limited, non-exclusive, non-transferrable, non-sublicensable right to use the content and materials on the Website. You may not use any third-party intellectual property without the express written permission of the applicable third party, except as permitted by law. The Website retains ownership in and of its intellectual property rights, and you shall not obtain any ownership rights therein by virtue of the Terms or otherwise. You have no right to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit, or sublicense materials or content available on the Website, except as expressly set forth in the Terms. You may not attempt to reverse engineer any of the technology used to provide the Website.
(d) Prohibited Conduct. In your use of the Website, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity, or other right of any individual or entity, including, but not limited to, ADV; (ii) defame, abuse, harass, or stalk any individual, or disrupt or interfere with the security or use of the Website, or any websites linked to the Website; (iii) interfere with or damage the Website or any of the equipment that makes up the Website, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology; (iv) attempt to use another user's account, impersonate another person or entity, misrepresent your affiliation with a person or entity, including, without limitation, the Website, or create or use a false identity; (v) attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access; (vi) engage, directly or indirectly, in transmission of "spam," chain letters, junk mail, or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Website; (viii) use any meta tags or any other "hidden text" utilizing the product names or trademarks, of products listed on this Website; (ix) advertise, offer to sell, or sell any goods or services; (x) engage in any activity that interferes with any third party's ability to use or enjoy the Website; or (xi) assist any third party in engaging in any activity prohibited by the Terms. You also may not deep link to portions of the Website, or frame, inline link, or similarly display any of our property, including, without limitation, the Website. You may not use any of our logos or other trademarks as part of a link without express written permission.
(e) Other Users. If you become aware of any conduct that violates the Terms, we encourage you to contact Customer Service. We reserve the right, but will have no obligation, to respond to such communications.
2. Your Content, Testimonials, Pics, and Videos.
We are pleased to hear from our customers and welcome their comments regarding our products. Please note that we may use, in any way we choose, any comment, testimonial, review, or any pictures or videos (collectively, "Your Content") about us or our products that are submitted or posted by you in any media or forum, including social media, together with your first name and city and state of residence. By posting, storing, or transmitting Your Content on or to the Website or in any electronic media, including, but not limited to, social media, you hereby grant ADV a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, sub-licensable right and license to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit, and sublicense Your Content in any form, in all media now known or hereinafter created, anywhere in the world, and you irrevocably waive any claim based on moral rights. You should not submit or post any Content, testimonials, pictures, or videos if you do not wish to grant us such rights. Please also note that you alone are responsible for ensuring that Your Content is accurate and lawful, and you agree and represent that Your Content will not violate any right of any third-party. We take no responsibility and assume no liability for any content, testimonials, pictures, videos, or comments posted by you or any third-party. We are and will be under no obligation to: (i) maintain any of Your Content in confidence; (ii) pay to you or any third party any compensation for any of Your Content; or (iii) respond to any of Your Content.
We do not have the ability to control the nature of the user-generated content offered through the Website. You are solely responsible for your interactions with other users of the Website and any Content that you post. We will not be liable for any damage or harm resulting from any user's content, nor from your interactions with other users of the Website. We reserve the right, but have no obligation, to monitor interactions between you and other users of the Website and take any other action to restrict access to, or the availability of, any material that we or another user of the Website may consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable (including, without limitation, because it violates the Terms).
3. Accuracy of Website Information.
We attempt to ensure that the information on the Website is complete and accurate; however, the information on the Website may contain typographical errors, pricing errors, and other errors or inaccuracies. We assume no responsibility for such errors and omissions, and reserve the right to: (i) revoke any offer stated on the Website at any time; (ii) correct any errors, inaccuracies, or omissions; and (iii) make changes to prices, content, promotions, product descriptions or specifications, or other information on the Website at any time. ADV reserves the right to discontinue any products or services at any time. When ordering products, please note that ADV does not warrant that product descriptions are accurate, complete, current, or error-free, or that packaging will match the actual product that you receive. If any item described on the Website is not as described when you receive it, or the packaging on the Website does not match what you receive, your sole remedy is provided in our Guarantee. All sales are deemed final except as provided in the Guarantee.
4. HEALTH AND FOOD ALLERGY DISCLAIMER.
The material on the Website is provided as general information only. The statements made on this Website, as well as any materials or supplements distributed or sold on the Website, have not been evaluated by the Food and Drug Administration. Products featured on the Website are not intended to diagnose, treat, cure, or prevent any disease. If you are pregnant, nursing, taking medication, or have a history of heart or any other medical or physical conditions, we suggest consulting with a healthcare professional before using any of our products. Our products are not intended for use by persons under 18 years of age, as the dietary needs of minor children are different from those of healthy adults. The results achieved with all products are not typical, and not everyone will experience these results. The product disclaimers described above are inapplicable where prohibited by law.
ADV makes every attempt to provide accurate nutrition and ingredient information for every product on our Website. We take product safety very seriously. However, there is always a risk of cross-contamination. There is also a possibility that product formulations could change at any time, without notice. Please be aware that our facility may handle nuts and foods that may contain nuts or nut oils. Customers concerned with food allergies need to be aware of these risks and understand that the consumption of products provided by ADV is at their own risk.
5. The Guarantee.
Return Policy for Standard Deliveries (including Single Bottle, Bundle Shipment, and additional offers)
trycellulitemd.com offers a 90 day satisfaction guarantee on all standard shipments. If you, the buyer, are unhappy with the product for any reason - even if you've used a full 90 day supply of the supplement - you can return the empty bottle(s), plus any additional unopened bottles, for a full refund of the purchase price, minus shipping and processing (if applicable). Please note that only 90 days' worth of product can be empty. The remaining units must be completely sealed, unused and returned.
To request a refund, please call us at 1-800-000-0000 or Email. You will be given a Return Merchandise Authorization (RMA) number. To receive your refund, your return must be received at our shipping facility within 45 of purchase. Be sure to clearly write the RMA number on the outside of the box. Our shipping department is NOT allowed to accept any packages without an RMA number. You will pay for return shipping, and we recommend that you use a shipping service which provides you with a tracking number and proof of shipment.
Upon receipt of your returned product with a valid RMA number, a refund will be issued to your credit card. After the shipping department receives your return, it generally takes 3-5 business days or less to process your refund. Once a return is processed, it can take up to one billing cycle for this return to be posted to your account, depending on your credit card company or financial institution.
We will not accept or issue a refund for any refused packages or packages marked "return to sender" or "refused" that do not include a valid RMA number.
Note that ADV reserves the right to deny/cancel any future shipments or returns to and from any individual or shipping address found to be abusing our policies or breaching our terms.
6. Our Privacy Policy and Your Personal Information.
We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website and online store is governed by our Privacy Policy. Our privacy policy may be viewed at www.trycellulitemd.com/privacy.html. ADV reserves the right to modify its Privacy Policy in its reasonable discretion from time-to-time. Our privacy policy is incorporated into this Agreement by reference.
7. Order Placement and Acceptance; Method of Payment; Sales Tax.
If you are ordering a product, payment must be received by ADV before your order is accepted. We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us at 1-800-000-0000 or by Email immediately in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions.
Once we receive your authorized order and a verified form of payment has been received, we will promptly place your order in line for shipment or delivery. All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product. If the availability of any product is delayed and you do not wish to substitute the product, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order.
We do not accept orders from dealers, wholesalers, or customers who are resellers or who intend to resell items offered on the Website. We reserve the right to limit the sales of our products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.
All advertised prices are in, and all payments shall be in, U.S. Dollars. If you purchase any products available on the Website, you will be responsible for paying any applicable sales tax indicated on the Website.
ADV will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of nature or other causes beyond our reasonable control.
8. Accuracy of Billing and Account Information; Fraud.
You agree to provide current, complete, and accurate purchase and account information for all purchases made on our Website. You agree to promptly update your account and other information, including your email address and credit and other payment card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
We reserve the right, but undertake no obligation, to actively report and prosecute actual and suspected credit card fraud. We may, in our discretion, require further authorization, such as a telephone confirmation of your order and other information, from you. We reserve the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud is suspected. We capture certain information during the order process, including time, date, IP address, and other information that will be used to locate and identify individuals committing fraud. If any Website order is suspected to be fraudulent, we reserve the right, but undertake no obligation, to submit all records, with or without a subpoena, to all law enforcement agencies, the credit card company, and any relevant financial institutions for fraud investigation. We reserve the right to cooperate with authorities to prosecute offenders to the fullest extent of the law.
9. Shipping Fees.
Unless otherwise stated on the Website at the time of purchase, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery. If your order will be delayed, we will contact you at the e-mail address you provided when placing your order. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier. We reserve the right to reject orders where the stated delivery address is within a geographic region that we do not service.
10. Our Intellectual Property.
(a) Copyright. All materials on the Website, including, without limitation, the logos, design, text, graphics, other files, and the selection and arrangement thereof are either owned by us or are the property of our suppliers, licensors, or other companies. You may not use such materials without express written permission.
(b) Trademarks. All brand names listed on this Website are protected by domestic and international trademark law. We own the related design marks, and other trademarks on the Website. Page headers, custom graphics, button icons, and scripts are trademarks or trade dress we own. You may not use any of these trademarks, trade dress, or trade names without our express written permission.
11. DISCLAIMERS OF WARRANTIES.
(a) DISCLAIMERS OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE WEBSITE AND/OR PRODUCTS IS AT YOUR SOLE RISK. WE PROVIDE THE WEBSITE, THE PRODUCTS, AND ANY SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS, THE WEBSITE, THE SERVICES, THEIR USE, AND ANY INFORMATION ON OR CONTAINED THEREIN: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OF OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR CAUSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
(b) DISCLAIMER OF FORWARD-LOOKING STATEMENTS. THIS WEBSITE MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT OUR CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE OUR CONTROL.
(c) HEALTH-RELATED INFORMATION. WE PROVIDE INFORMATION ON THE WEBSITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR THE ADVICE OF A DOCTOR OR OTHER HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING A MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INSTRUCTIONS PRIOR TO USE. YOU AGREE THAT YOU WILL CEASE IMMEDIATELY FROM USING OUR PRODUCTS IF YOU EXPERIENCE ANY ILL EFFECTS OR UNINTENDED SIDE EFFECTS OF ANY PRODUCT.
(d) PRODUCTS. ALL PRODUCTS ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS, IF ANY, PROVIDED IN THE PRODUCT PACKAGING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR CAUSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NONCOMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
12. LIMITATIONS OF LIABILITY.
(a) EXCLUSION OF DAMAGES. EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL ADV, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEBSITE OR PRODUCTS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
(b) LIMITATION OF LIABILITY. IF, NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH ABOVE, ADV IS FOUND LIABLE UNDER ANY THEORY, ADV'S AGGREGATE LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE LESSER OF USD $500 OR THE TOTAL AMOUNT OF MONEY THAT YOU PAID FOR THE PRODUCT(S) DURING THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM(S). THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF WHETHER ADV WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
13. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AND CONDITIONS AS A COURT WOULD.
Except as provided in subsection "i" below and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to the Agreement or a breach thereof, the Privacy Policy, the Guarantee, our relationship, or your use or attempted use of the Website or any product or service, shall be submitted to and finally resolved by individual, confidential arbitration under the rules of the American Arbitration Association then in effect. The following terms shall apply. You, ADV, or any involved third party may pursue a claim. ADV agrees to final and binding confidential arbitration should it have any claims against you. Likewise, you agree to final and binding confidential arbitration should you have any claims against ADV. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any claims to final and binding confidential arbitration. This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the "FAA"), 9 U.S.C. && 1-16, as amended.
a. Required Pre-Dispute Procedures
Before initiating any arbitration claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by Email. ADV will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with ADV or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, ADV will have the right to seek injunctive or other equitable relief in state or federal court located in Fort Lauderdale, Florida to enforce these Terms or prevent an infringement of a third party's rights or our intellectual property rights, as stated in subsection "i" below. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions.
b. Commencing Arbitration
You and ADV agree to commence any arbitration proceeding within 1 year after the claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
c. Arbitration Location
If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in Fort Lauderdale, Florida unless ADV otherwise agrees to arbitrate in another forum requested by you.
d. Organization, Rules, and the Arbitrator
We each agree that any and all claims other than those exempted under subsection "i" below shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association ("AAA"). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection "b" above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with the Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA's Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA's Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, the Guarantee, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or ADV.
e. Fees
We will pay all of the filing costs, including arbitrator fees, which shall be reimbursed to us by you in the event that the arbitrator determines that the claim is frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
f. Governing Law and Award
The arbitrator shall follow the substantive law of the State of Florida without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
g. Enforceability
This provision survives termination of your account or relationship with ADV, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
h. Miscellaneous
Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except all claims must be brought within the 1 year limitation period set forth above. This Section 13 is the entire arbitration agreement between you and ADV and shall not be modified except in writing by ADV.
i. Exceptions
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and ADV both retain the right to pursue, in small claims court, any claim that is within that court's jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court's jurisdiction. ADV will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court on an individual basis. The following claims shall not be subject to final and binding arbitration and must be adjudicated only on an individual, non-class, non-representative basis in the state or federal courts located in Fort Lauderdale, Florida: (i) any dispute, controversy, or claim, including a claim for injunctive relief and damages, relating to the infringement or validity of our or a third-party's proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents; or (ii) an action by ADV for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of the Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection "i" in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed only on an individual basis in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection "i," the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Fort Lauderdale, Florida, and forever waive any challenge to said courts' jurisdiction and venue. The law of the State of Florida, exclusive of its conflicts of laws principles, shall exclusively apply to any such matter.
j. Amendments
ADV reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of any product or services on or through the Website, or use or attempted use of a ADV product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, ADV will provide you notice and an opportunity to opt-out. Your failure to opt out of material changes to this arbitration provision is affirmation of your consent to such material changes.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT OR SERVICE PURCHASED (WHICHEVER COMES FIRST) BY WRITING TO US VIA Email USING OUR CONTACT FORM. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED, OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED, OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $5,000.00.
14. Third-Party Websites.
ADV may contain links to other websites on the Internet that are owned and operated by third parties. We do not control the information, products, or services available on these third party websites. The inclusion of any link does not imply our endorsement of the applicable website or any association with the website's operators. Because we have no control over such websites and resources, you agree that we are not responsible or liable for the availability or the operation of such external websites, for any material located on or available from any such websites, or for the protection of your data privacy by third parties. Any dealings with, or participation in promotions offered by, advertisers on the Website, including the payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between you and the applicable advertiser or other third party. You further agree that we shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such website, or any such dealings or promotions.
15. Indemnification.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold ADV and its subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders, or other partners, employees, and advertising partners harmless from any liabilities, losses, actions, damages, claims, or demands, including reasonable attorneys' fees, costs, and expenses, made by any third party directly or indirectly relating to or arising out of: (a) Your Content; (b) your use of the Website; (c) your connection to the Website; (d) your violation of the Agreement; (e) your violation of any rights of another; or (f) your failure to perform your obligations hereunder. If you are obligated to provide indemnification pursuant to this provision, we may, in our sole and absolute discretion, control the disposition of any claim at your sole cost and expense. Without limitation of the foregoing, you may not settle, compromise, or in any other manner dispose of any claim without our consent.
16. DMCA Notice and Takedown Procedures; Copyright Agent.
If you believe that materials or content available on the Website infringes any copyright you own, you or your agent may send ADV a notice requesting that ADV remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send ADV a counter-notice. Notices and counter-notices should be sent to Advanced Nutraceuticals, LLC, 398 E. Dania Beach Blvd #400 Dania Beach, FL 33004 or by Email.
17. Electronic Communications.
You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. If you would like a hard copy of any such document, please send your request via Email. You hereby waive any right you may have to automatically receive a hard copy of any such document from ADV.
18. Severability.
Except as specifically provided in Section 13(g) above, in the event that any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms. Such determination shall not affect the validity and enforceability of any other remaining provisions.
19. Termination.
We maintain the right to terminate your access to the Website if we reasonably believe you have breached any of the Terms or the Agreement. Following termination, you will not be permitted to use the Website and we may, in our sole discretion, cancel any outstanding product orders. If your access to the Website is terminated, we reserve the right to exercise whatever means we deem necessary to prevent unauthorized access to the Website, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider. In the event that we terminate the Agreement for your material breach, Sections 4, 11 through 15, 17 through 18, 20, and 22 through 23 of these Terms, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of the Agreement and/or your account or relationship with ADV.
20. Domestic Use and Export Restriction.
We control the Website from our offices within the United States of America. We make no representation that the Website or its content (including, without limitation, any products or services available on or through the Website) are appropriate or available for use in other locations. Users who access the Website from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded in violation of United States law.
21. Modification of Terms and Conditions.
You can review the most current version of the Terms at any time at www.trycellulitemd.com/terms.html We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Policy and Guarantee, by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes.
22. Our Entire Agreement.
These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and ADV, and supersedes and replaces any prior or contemporaneous agreements. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.
23. Additional Terms.
These Terms, and all of your rights and obligations under them, may not be assigned or transferred by you without our prior written consent. No failure or delay by a party in exercising any right, power, or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof, or the exercise of any other right, power, or privilege under these Terms.
24. Contacting Us.
We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by calling us at 1-800-000-0000 or by Email.
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