Terms and Conditions

Terms and Conditions

 

Last Updated: October 2020.

 

Welcome to www.naturalhealthsherpa.comwww.metabolicrenewal.comwww.metabolicfactor.comwww.metabolicaftershock.com
www.metabolicprime.com and www.metabolicliving.com (each a “Site”), an online website owned and operated by Natural Health Sherpa, LLC, d/b/a Metabolic Living, a Delaware limited liability company (“NHS”, “we”, “our”, or “us”). The Site enables visitors (“Users” or “you”) who are at least eighteen (18) years of age to access general information, make purchases, and participate in programs promoting the Natural Health Sherpa philosophy and practice. These Terms & Conditions (the “Agreement”) set forth the terms and conditions (“Terms”) which govern your use of the Site and apply to information we collect on this Site.

 

Please read this Agreement carefully before accessing the Site.  By accessing the Site, Users agree to be bound by the terms and conditions set forth in this Agreement.  If Users do not wish to be bound by this Agreement and our Privacy Policy, they are not authorized to use this Site. You may not access this Site or order or obtain products or services from this Site if you (a) do not agree to these terms, (b) are not the older of (i) at least 18 years of age or (ii) legal age to form a binding contract with us, or (c) are prohibited from accessing or using this Site or any of this Site’s contents, goods or services by applicable law.  By using this Site, you represent and warrant that you meet all of the foregoing eligibility requirements.  If you do not, you must not access or use the Site.

 

NHS reserves the right to modify this Agreement at any time, which changes shall be effective immediately and apply to all access to and use of the Site thereafter.  You agree to review the Agreement periodically to be aware of such modifications. Your continued use of the Site shall be deemed to be your conclusive acceptance of any modified Agreement. You should review this Agreement before purchasing any products or services that are available through this Site. We reserve the right to withdraw or amend this Site and any product, service, or material we provide in our sole discretion without notice. From time to time we may restrict access to some parts or all of the Site to Users. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.  THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.  BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS SITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.  

 

This Site is owned and operated by Natural Health Sherpa, LLC. Any feedback, comments, or requests for technical support should be directed to: [email protected].

 

Medical Disclaimer

 

Information on this Site is provided for educational purposes only and is not intended as a substitute for the advice provided by your physician or other healthcare professional. You should not use or rely upon the information on this Site for diagnosing or treating a health problem or disease, or prescribing any medication or other treatment. You should always speak with your physician or other healthcare professional before taking any medication or nutritional, herbal or homeopathic supplement, or adopting any treatment for a health problem. If you purchase any products or services through a link on this Site, you should read carefully such providers’ terms of use, our Privacy Policy and all product packaging, service descriptions and instructions. There may be risks associated with use of the products and services mentioned on this Site. You understand and acknowledge that you use these products and services of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. If you have or suspect that you have a medical problem, promptly contact your healthcare provider. Never disregard professional medical advice or delay in seeking professional advice because of something you have read on this Site. 

 

Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. Testimonials, case studies, and examples found on this Site are not intended to represent or guarantee that anyone will achieve the same or similar results. Results from using our products and services may vary from person to person. The entire contents of this Site are based solely upon the opinions and thoughts of the authors unless otherwise noted.

 

Never disregard professional medical advice or delay in seeking professional advice because of something you have read on this Site. Information provided on this Site and the use of any products or services purchased by you through a link on the Site DOES NOT create a doctor-patient relationship between you and any of the physicians affiliated with the Site

 

You understand that participation in any programs available on the Site, including exercise programs, involve inherent risks and dangers of serious personal injury and death. These may result not only from your own actions, inactions, or negligence, but also from the actions, inactions, or negligence of others. Further, there may be other risks not known to you or reasonably foreseeable at this time. By participating in these programs, you acknowledge that you understand and have considered the risks involved, and you voluntarily and freely choose to assume these risks.  You consent to receive medical treatment which may be deemed necessary in the event of any illness, accident or injury or medical emergency resulting from or in connection with your participation in programs available on the Site and understand that you are solely responsible for all costs related to such medical treatment and/or medical transportation.  You are in good health, in proper physical condition, and you have consulted with a physician or otherwise ensured that there are no known medical or other conditions that would impair your ability to participate in such programs. If at any time you believe conditions to be unsafe or that you are no longer in proper physical condition to participate in the programs, you will immediately discontinue further participation in such programs.

 

Recipes and other food-related content available on the Site may not have been formally tested by us or for us and we do not provide any assurances nor accept any responsibility or liability with regard to their originality, quality, nutritional value, or safety. Unless otherwise stated, the recipes featured on the Site are not endorsed by us and we in no way provide any warranty, express or implied, towards the content of recipes on the Site. You may not achieve desired results due to variations in elements such as ingredients, cooking temperatures, typos, errors, omissions, or individual cooking ability. Use your best judgment when cooking with raw ingredients such as eggs, chicken, beef, or seafood and seek expert advice before beginning if you are unsure. To ensure the safety of yourself and others, be aware of heated cooking surfaces while cooking and take caution when using sharp knives or other cooking implements. Review all ingredients prior to beginning a recipe in order to be fully aware of the presence of substances which might cause an adverse reaction in some consumers. Consult your medical professional before using any recipe if you have concerns about how you may individually react to the use of any particular recipe or ingredient. By voluntarily creating and using any recipe provided here, you assume the risk of any potential injury that may result.

YOU ACKNOWLEDGE AND AGREE THAT THE SITE, INCLUDING BUT NOT LIMITED TO ALL TEXT, DATA, IMAGES, GRAPHICS, PHOTOGRAPHS, AUDIO, VIDEO, SOFTWARE, INFORMATION, PROGRAMS, TELESEMINARS, ARTICLES, COMMENTS, STORIES, MESSAGES, POSTINGS, INFORMATION, NHS MATERIALS (AS HEREINAFTER DEFINED), USER CONTENT (AS HEREINAFTER DEFINED) AND ALL OTHER CONTENT (COLLECTIVELY, “CONTENT”) PROVIDED IN CONNECTION WITH THE SITE BY NHS OR THIRD PARTIES ON BEHALF OF NHS, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONSTITUTE OR SUBSTITUTE FOR (I) MEDICAL ADVICE OR COUNSELING, (II) THE PRACTICE OF MEDICINE INCLUDING BUT NOT LIMITED TO PSYCHIATRY, PSYCHOLOGY OR PSYCHOTHERAPY, (III) THE PROVISION OF HEALTHCARE DIAGNOSIS OR TREATMENT, OR (IV) THE CREATION OF A PHYSICIAN-PATIENT OR CLINICAL RELATIONSHIP BY NHS OR ANY OF NHS’ AGENTS, AFFILIATES, EMPLOYEES, CONSULTANTS. 

 

YOU ACKNOWLEDGE AND AGREE THAT CONTENT SHOULD BE USED ONLY IN CONJUNCTION WITH THE GUIDANCE AND CARE OF YOUR PHYSICIAN. IF YOU HAVE ANY QUESTIONS OR WISH TO SEEK ADVICE REGARDING A MEDICAL CONDITION, YOUR DIET, NUTRITIONAL SUPPLEMENTS, AN EXERCISE REGIMEN OR ANY OTHER MATTER RELATED TO YOUR HEALTH OR GENERAL WELL-BEING, YOU AGREE THAT YOU WILL CONSULT WITH YOUR PHYSICIAN BEFORE UTILIZING ANY CONTENT APPEARING ON THE SITE. 

 

NHS cannot and does not assess, verify or guarantee the adequacy, accuracy or completeness of any material or the suitability or safety of any Content or products provided on this Site. NHS expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, statement or other information posted on the Site by Users. You bear sole responsibility for Your own health and diet research and decisions.

 

Use of the Site

 

You may use the Site only for lawful purposes and in accordance with this Agreement. You agree not to use the Site:

 

  1. In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  2. In any way that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any party.
  3. To harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent.
  4. To attempt to gain unauthorized access to the Site, other computer systems or networks connected to or used together with our products and services, through password mining or other means.
  5. For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  6. To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards described below. 
  7. To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  8. To impersonate or attempt to impersonate us, one of our employees, another User, or any other person or entity.
  9. To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm us or Users, or expose them to liability.
  10. Introduce software or automated agents or scripts to the website so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
  11. To engage, directly or indirectly, in transmitting any type of unsolicited solicitation.
  12. To advertise, offer to sell, or sell any goods or services, unless you receive our prior written consent.

 

Additionally, you agree not to:

 

  1. Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site.
  2. Use any manual process to monitor or copy any of the material on the Site, or for any other purpose not expressly authorized in this Agreement, without our prior written consent.
  3. Use any device, software, or routine that interferes with the proper working of the Site.
  4. Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  5. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
  6. Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
  7. Access (or attempt to access) any of our products or services by any other means other than through the means we provide. 
  8. Assist any third party in engaging in any activity prohibited by this Agreement.
  9. Otherwise attempt to interfere with the proper working of the Website.

 

While general access to and use of the Site is currently free of charge, you acknowledge that we may, in our sole discretion, decide at any time to charge for such access and services.

 

International Access to Site

 

We control the Site from our offices within the United States of America. We make no representation that the Site or its Content (including, without limitation, any products or services available on or through the Site) are appropriate or available for use in other locations. Users who access the Site 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 Site may be downloaded in violation of United States law.

 

Commercial Transactions and Terms of Sale

 

Purchases

Products and/or services are offered for sale through the Site. In the event you wish to purchase any of these products or services, you will be asked by NHS or an authorized third party on NHS’ behalf to supply certain personal information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide NHS or such third party with accurate, complete and current information at all times, and to comply with the terms and conditions of any agreement that you may enter into which governs your purchase of such product or service. You shall be responsible for all charges incurred through your account as well as any shipping and applicable taxes.

 

We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Site is void where prohibited by law or this Agreement.

 

Payment

Your right to use any service or product that is available for purchase through the Site is conditional on our receipt of payment for such service or product. If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to either suspend or terminate your account, thereby terminating this Agreement and all obligations hereunder.

 

Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, MasterCard, Discover and American Express credit cards and check cards from Visa and MasterCard. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.  If we experience difficulties in authorizing your credit card, we may notify you by e-mail or telephone and/or attempt to process the payment again.  

 

Order Acceptance and Cancellation 

You agree that any order you submit through this Site is an offer to buy, under these terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between NHS and you will not take place unless and until you have received your order confirmation e-mail.  You have the option to cancel your order at any time before we have sent your order confirmation e-mail by calling our customer service department at 800-316-8556. 

 

We reserve the right, but undertake no obligation, to monitor for, report, and prosecute actual and suspected fraud on the Site. We may, in our discretion, require further authorization from you such as a telephone confirmation of your order or request additional information, to process your order. We reserve the right to cancel, delay, refuse to ship, or recall from the transit carrier any order if fraud is suspected. We also reserve the right, but undertake no obligation, to submit all records to law enforcement agencies and to third parties, including payment card companies and banks, for investigation into suspected fraud. We reserve the right to cooperate with authorities and third parties to prosecute offenders to the fullest extent of the law.

 

Prices

All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such errors. The inclusion of any products or services on this Site at a particular time does not imply or warrant that these products or services will be available at any time.

 

We may offer from time to time promotions on the Site that may affect pricing and that are governed by terms and conditions separate from this Agreement.  If there is a conflict between the terms for a promotion and this Agreement, the promotion terms will govern. To the extent you participate in any promotional programs or features we may choose to offer, the specific applicable terms and conditions of such program shall apply. These additional terms and conditions program will be posted on the Site or another entry form. These additional terms and conditions may include age restrictions, entry deadlines, return policies, or restrictions on use.

 

Shipments; Delivery; Title and Risk of Loss

We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options.  You will pay all shipping and handling charges specified during the ordering process.  Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.  Please also note that the shipping rates for many items we sell are weight-based.  To reflect the policies of the shipping companies we use, all weights will be rounded up to the next full dollar.   Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed.  We are not liable for any delays in shipments. If item is backordered and we provide an estimated date of delivery, the date provided is only an estimate and cannot be guaranteed.

 

If you choose to purchase our products that are provided through a subscription basis, the delivery schedule options are outlined on the product page. Deliveries will be made according to your order selection. To cancel or modify your subscription, please contact our representative at [email protected] or 800-316-8556. 

 

Returns and Refunds

Unless we notify you otherwise, you may return any product purchased on our Sites within ninety (90) days of purchase for a full refund. In the event a longer return period for certain products is provided in the written documentation for certain products, we will honor the longer period for those products.  To initiate your return, you must contact our representative by email at [email protected] or by telephone at 800-316-8556.   Our representative will give you instructions on how to complete your return.

 

We are unable to grant refunds for digital subscription programs. However, if you cancel your subscription, we will cancel any scheduled future payments. To cancel your digital subscription program, you must contact our representative by email at [email protected] or by telephone at 800-316-8856. Other services we offer, such as Metabolic Optimization Coaching, may have specific terms and conditions. If these specific terms and conditions have a different refund or cancellation policy that policy will apply. 

 

In the event you have purchased a physical product, we will process the refund once we have received and processed the returned product. In both cases we will notify you via e-mail of your refund.  We will strive to issue a refund in the same form of payment originally used for the purchase within five (5) business days of our receiving your return. The time it takes for the credit to be posted to your account may vary.  If you have not received a refund within twenty-five (25) business days from the day you sent us your return, please e-mail us for further assistance. 

 

You are responsible for all shipping and handling charges on returned items.  You bear the risk of loss during shipment.  We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. 

 

Use of the Products

It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regards to the possession, use and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. All DVDs, videos and similar products sold are for private, home use (where no admission fee is charged), and non-public performance and may not be duplicated.

 

Goods Not for Resale or Export

You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying products or services from the Site for your own personal or household use only, and not for resale or export. Products and services purchased from the Site may be controlled for export purposes by Export Regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”).

 

No Third Party Reselling

You are not permitted under any circumstances to engage in third party reselling (Amazon, eBay, etc.) of NHS products or services. We will send you a cease and desist letter after we learn of your noncompliance. If you fail to comply with the cease and desist letter, legal action may be taken. Reselling of any NHS products or services will also result in a ban from NHS products and services. 

 

Registration

 

Capacity

Each User who wishes to make use of certain features offered through www.MetabolicLiving.com, as described herein, must register with the Site by creating an account (each a “Registrant”, collectively the “Registrants”) (Registrants, along with the Users “you” or “your”).  By checking the box to accept these Terms each Registrant acknowledges that such Registrant is at least eighteen (18) years of age and has read, agrees with and accepts to be bound by the terms and conditions set forth in this Agreement. Failure to check the “Accept” box will prevent an individual from becoming a Registrant. 

 

Accurate Information 

Registrants agree to provide us with accurate, complete and current information during registration, and to update information provided to us if and when such information should change.

 

Registrant Profile; Password

Registrants will receive a username and password (“Registrant Profile”). Registrants agree not to allow any third party to use their Registrant Profile to access the Site and to safeguard the information that would allow another person or entity to access the Site by using their Registrant Profile to keep all such information confidential. Registrants agree to be fully responsible for their failure to safeguard such information and/or to allow any other person or entity to access or use the Site by using their Registrant Profile. No part of a Registrant Profile may be transferred or sold to another party. Registrants agree to notify NHS immediately of any unauthorized use of their Registrant Profile or the Site. Registrants and Users agree that NHS shall not be liable for any loss that results from the unauthorized use of a Registrant’s Registrant Profile, either with or without such Registrant’s knowledge. 

 

Revocation of Registration

Registrant agrees that NHS has the right to cancel their registration for any reason at any time, in our sole discretion. The revocation of a Registrant’s registration shall result in the disabling of any username, password or other identifier if, in our opinion, you have violated any provision of this Agreement. Registrants agree that NHS shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, to protect our interests.

 

User Content

 

User Content

NHS may offer Registrants and other Users, together (“Users”) the opportunity to participate in various interactive resources. NHS may also provide  Users with the opportunity to publish, display, or otherwise transmit directly or indirectly (“Post”) certain text, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips to the Site (“User Content”).

 

Any User Content shall be considered non-confidential and non-proprietary. No User Content posted shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on NHS’ part and NHS shall not be liable for any use or disclosure of any such User Content.

 

User Content may be subject to size and usage limitations. Registrants are responsible for adhering to such limitations.

 

Posting

In connection with any and all User Content, such content-providing User warrants and represents that (i) such User either owns all rights title and interest in and to such User Content, or (ii) such User has obtained prior written authorization from the owner(s) of all rights title and interest in and to such User Content and (iii) that all User Content does and will comply with this Agreement and applicable law. By Posting User Content to the Site, User also warrants and represents that such User Content does not and will not infringe or violate any party’s proprietary, publicity, privacy, or other rights and that such User Content is and will not be defamatory or libelous.

 

Grant of License. By Posting User Content to the Site or by otherwise submitting User Content to us, Users automatically grant, and represent and warrant that they have the right to grant to NHS, a non-exclusive, perpetual, irrevocable, sublicensable (through multiple tiers), assignable, fully-paid, royalty-free, worldwide license to use, copy, modify, adapt, publish, make, sell, create derivative works of or incorporate into other works such User Content, derive revenue or other remuneration from, communicate to the public, distribute (through multiple tiers), perform or display such User Content (in whole or in part) and/or to incorporate such User Content in other works in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing through multiple tiers of sublicensees, including the right to exercise the copyright, publicity, and any other rights over any of the materials contained in such User Content for any purpose, including for purposes of advertising and publicity on the Site and elsewhere. NHS shall not be limited in any way in its use, commercial or otherwise, of any User Content appearing on the Site. Users hereby waive any moral rights in, or approval rights to, such User Content. Further, we have the explicit right to incorporate any User Content into any further work, in any medium, without prior consent or review, and without payment of any royalty or fee whatsoever.

 

Content Restrictions

User agrees not to Post any User Content that:

 

  1. is fraudulent;
  2. is designed to interrupt, or destroys or limits the functionality of, any computer software or hardware or telecommunications equipment;
  3. interferes with or disrupts the Site, services connected to the Site, or otherwise interferes with operations or services of this Site in any way;
  4. infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party; including the promoting of an illegal or unauthorized copy of another person’s copyrighted work;
  5. is patently offensive to the Site users, such as any Content that promotes racism, bigotry, hatred, discrimination or physical harm of any kind against any group or individual;
  6. constitutes or attempts to offer medical advice or counseling;
  7. harasses or harms, or advocates the harassment or harming of another person;
  8. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
  9. promotes information that is false or misleading, or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
  10. contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
  11. displays pornographic, obscene or sexually explicit material of any kind;
  12. provides material that exploits people in a sexual or violent manner, is exploitative of a minor or solicits personal information from anyone under the age of 18;
  13. provides instructional information about illegal activities;
  14. solicits passwords or personal information for commercial or unlawful purposes from other Users;
  15. causes us to lose (in whole or part) the services of our ISPs or other suppliers;
  16. links to materials or other Content, directly or indirectly, to which such Registrant does not have a right to link;
  17. encourages others to violate this Agreement; 
  18. impersonate any person, or misrepresent User’s identity or affiliation with any person or organization;
  19. involves commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising not operated by us;
  20. suggests that User Content emanates from or is endorsed by us or any other person or entity, if this is not the case; or
  21. violates any applicable local, state, national, or international law.

 

All of the foregoing (a)-(u) shall be collectively known as “Content Restrictions.”

 

Quality of User Content; Review of User Content; DISCLAIMER

NHS has no obligation to and does not, in its ordinary course of business, review User Content, and therefore we assume no liability for and do not guarantee the accuracy, integrity, advisability or quality of such User Content and we cannot assure that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable User Content will not appear on the Site.  Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party.  NHS has the absolute right to monitor all User Content in our sole discretion. In addition, we reserve the right to alter, edit, refuse to Post or remove any User Content, in whole or in part, for any reason or for no reason, and to disclose such materials, your identity and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our Registrants, Users, and service providers. NHS has no obligation to use or respond to any of submissions of User Content. In the event that you object to any Content appearing on the Site, you shall promptly notify NHS in writing.

 

NHS EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND ENDORSEMENT AND MAKES NO REPRESENTATION AS TO THE VALIDITY OF ANY USER CONTENT POSTED ON THE SITE. NHS EXPRESSLY DISCLAIMS ALL RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN ANY USER CONTENT, FOR LINKS EMBEDDED THEREIN, OR GENERALLY FOR THE ACCURACY, RELIABILITY, ADVISABILITY OR QUALITY OF ANY USER CONTENT. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL NHS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USER CONTENT. THE OPINIONS EXPRESSED BY USER CONTENT ARE SOLELY THE OPINIONS OF THE USERS WHO HAVE POSTED SUCH CONTENT, AND DO NOT REFLECT THE OPINIONS OR RECOMMENDATIONS OF NHS. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

 

Unsolicited Ideas

If you wish to submit your ideas for product or service development within the NHS brand portfolio, please submit your ideas to [email protected]com. We will not sign any non-disclosure agreements to review any submissions. You agree that any submission of ideas, materials, or comments to us will not be confidential and will not constitute a fiduciary relationship of any kind. We do not promise that we will review your ideas or provide any compensation or consideration. 

 

Intellectual Property

 

The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design selection and arrangement thereof) are owned by NHS, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

 

Trademarks 

Unless otherwise indicated, all names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, trade dress, and service names included in the Site are trademarks of NHS or its licensors or suppliers, whether federally registered or not, (collectively, the “Trademarks”) and are protected by the trademark laws of the United States and other jurisdictions. You may not use, copy, reproduce, republish, distribute, modify or Post any Trademarks in any way, including in advertising or publicity pertaining to or distribution of materials on the Site, without our prior written consent. The Trademarks may not be used in any manner that is likely to cause confusion, or in any manner that disparages or discredits NHS, its licensors or suppliers.

 

All NHS trademarks on the Site are subject to the protection of law and this Agreement. The following is a non-exclusive list of primary NHS Trademarks: “METABOLICLIVING,” “METABOLIC OPTIMIZATION COACHING,” “METABOLIC OPTIMIZATION COACH,” “METABOLICALLY OPTIMIZED,” “METABOLIC SUPER FUEL,” “METABOLIC SUPER OMEGAS,” “METABOLIC SUPERFOOD,” “METABOLIC RENEWAL,” “METABOLIC DOSE,” “METABOLIC PRIME,” “METABOLIC MASTERY CLUB,” “THE METABOLIC FACTOR,” “METABOLIC FIRE,” and “METABOLIC AFTERSHOCK.”

 

Copyright 

Except for User Content, any content contained in the Site and any newsletters, emails, or other materials created and distributed through the Site by NHS (“NHS Materials”), its licensors or suppliers are the property of NHS or its licensors or suppliers, as applicable, and are protected under the copyright laws of the United States and other countries. You must abide by all copyright notices or restrictions contained on the Site. You agree not to use, display, reproduce, retransmit, modify, distribute, disseminate, sell, publish, broadcast, circulate, display or in any way exploit any NHS Materials and User Content (including any copyrighted material, trademarks, or other proprietary information), in whole or in part, whether by e-mail or by any other means, for any purpose other than for your personal, non-commercial use.

 

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is our policy to terminate the accounts of repeat infringers. If you believe that your User Content has been copied and Posted on the Site in a way that constitutes copyright infringement, please provide our copyright agent with the following information:  an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Site; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon NHS actual knowledge of facts or circumstances from which infringing material or acts are evident. NHS’ copyright agent for notice of claims of copyright infringement can be reached as follows:

 

Name: Tom Lyon
 Address: 3605 Glenwood Avenue, Suite 500

Raleigh, NC 27619
Telephone: 910-510-9289
 Email:  
[email protected]

 

We suggest that you consult your legal advisor before filing a notice with NHS’ copyright agent. Be advised that pursuant to this Agreement you are granting certain licenses to use your User Content. You should note that there can be penalties for false claims under the DMCA.

 

License and Restrictions on Use

 

Use

You may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works of, transmit, sell, or in any way exploit any portion of the Site, except that you may download User Content and NHS Materials from the Site as machine readable copies and/or print copies of any web page, provided that such copies will be used for your own personal (non-commercial) use and not for the purposes of competing in any manner with the Site or NHS. If your rights to use the Site ceases for any reason, you must, at our option, return or destroy any copies of the User Content and NHS Materials you may have made.

 

Grant of License to NHS Materials 

As part of your use of the Site, NHS grants to you a revocable, non-exclusive, non-transferable and limited license, without the right to sublicense, for the sole purpose of downloading and viewing NHS Materials on your personal computer for your own personal, non-commercial use only. The grant of this limited license is in no way intended, and shall not be interpreted, to grant to you any rights or license permitting you (i) to translate, alter, copy, revise, modify, change, or create derivate works based on NHS Materials in whole or in part; (ii) to publish, display, distribute, sell, rent or otherwise make NHS Materials, in whole or in part, available to any third party; or (iii) to print or otherwise reproduce NHS Materials, in whole or in part. You acknowledge and agree that you shall not infringe or otherwise violate the copyright or other proprietary rights of any NHS Materials.

 

Links

 

NHS and/or third parties may provide links on or through our Site or through other electronic communications to you, such as email, to other websites of possible interest to you. Because we have no control over such websites, you acknowledge and agree that we are not responsible for the availability of such websites, we do not sponsor or endorse such websites, and we are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites and your access and use of such websites shall be at your own risk. You also acknowledge and agree that NHS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, services, products, or other materials on or available from such websites. All such websites shall be subject to the policies and procedures of the owner of such websites, including the website’s privacy policy on the use of personal information.

 

You may link to the Site homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express consent. You may include on your website a link to the Site, provided that your website does not violate any Content Restrictions. Further, your link, and any other content on your website, shall not mislead or suggest that your website is sponsored by or affiliated with the Site. NHS reserves the right to revoke, at any time, this limited authorization to link to the Site.

 

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

 

Social Media

 

This Site may provide certain social media features that enable you to:

 

  • Link from your own or certain third-party websites to certain content on this Site.
  • Send emails or other electronic communications with certain content, or links to certain content, on this Site.
  • Cause limited portions of content on this Site to be displayed or appear to be displayed on your own or certain third-party websites.
  • Communicate with our accounts on social media through public posts or private messaging.

 

You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with.  We may disable all or any social media features and any links at any time without notice in our discretion.

 

Any information or other content (including text, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips) you post when (i) using the Site or (ii) using any social media website in which you interact with our accounts, including but not limited to Facebook, Twitter, Instagram, YouTube, Snap Chat, Pinterest, YouTube, Tik-Tok and LinkedIn (including any use of our  hashtags, tags, and posts, tagging us, mentioning us, or posting pictures of our products), (such content hereinafter referred to as “User Social Media Content”), becomes public information, depending upon your privacy settings, and is subject to redistribution by NHS and other third parties.  By using the Site you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, create derivative works from, distribute, publicly display and perform, publish, transmit, remove, retain, repurpose, and commercialize User Social Media Content in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any User Social Media Content that you do not wish to license to us, including any photographs, videos, confidential information, or ideas. There is no expectation of privacy when posting User Social Media Content or otherwise participating in such interactive forums and we have no control over how other users may use the information you make public.  Therefore, you should exercise caution and discretion when disclosing your personal information in a public submission or posting User Social Media Content.  

Privacy

 

NHS views the protection of your privacy as a very important responsibility.  Our Privacy Policy located here at governs the processing of all personal data collected from you in connection with your use of the Site, including any User Content and any purchase of products or services through the Site. By accepting these Terms and Conditions, you also agree to the Privacy Policy. 

 

If you provide us personal information on the Site, whether through forms, orders, responses to promotional offers, or any other means, you are consenting to us using that personal information for the purposes outlined in our Privacy Policy.  However, you may request to opt out of our communications with you at any time by contacting [email protected].

 

Use of Your Telephone Number

 

Texting Program

If you provide a telephone number on the Site and join our texting program, you consent to us using that telephone number to contact you with via text messages (SMS). You agree to recurring automated promotional and personalized marketing text messages (e.g. cart reminders) (“SMS Service”) as well as telephone calls. You are not required to grant consent as a condition of purchasing any good or services. Standard message and data rates may apply. Through the SMS Service, we may collect your telephone number, your service carrier’s name, and other information that you choose to provide. We will use this information for all purpose compatible with our Privacy Policy, including promotional purposes and to deliver goods and services you request from us. 

 

Canceling the SMS Service 

You can cancel the SMS Service at any time by texting "STOP" to 31996. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. To unsubscribe from a particular textword, text "STOP" and the textword to 31996. We will send you an SMS message to confirm that you have been unsubscribed from that list. Text "STOP ALL" to 31996 to remove your number from any and all text messages and/or MMS messages coming from 31996. If you want to join again, just sign up as you did the first time and we will resume SMS messages to you.

 

If at any time you forget what keywords are supported, just text "HELP" to 31996. After you send the SMS message "HELP" to us, we will respond with instructions on how to use our service as well as how to unsubscribe.

 

You may request to opt out of our communications with you at any time by contacting [email protected].

 

Compatible Carriers list (as of September 2020) 

The following carriers are supported by our SMS Service.

 

Major American CarriersAT&T, Verizon Wireless, Sprint, T-Mobile, Alltel, Boost Mobile, and Virgin Mobile.

Minor American CarriersAdvantage Cellular (DTC Wireless), Aio Wireless, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Carolina West Wireless, CellCom, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley Cellular, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), Cross, C-Spire (CellSouth), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), MetroPCS, Mosaic (Consolidated or CTC Telecom), MTA Communications , MTPCS (Cellular One Nation), Nex-Tech Wireless, NTelos, Panhandle Communications, Peoples Wireless, Pine Cellular, Pioneer, Plateau (Texas RSA 3 Ltd), RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, Simmetry (TMP Corporation), SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United Wireless, U.S. Cellular, Viaero Wireless, and West Central (WCC or 5 Star Wireless).

Canadian CarriersBell (including NorthernTel, Solo Mobile, and Telebec), Fido, MTS, Rogers, SaskTel, Telus (including Koodo Mobile and Public Mobile), Videotron, Virgin Mobile, and Wind.

MMS American Carrier SupportAT&T, Verizon Wireless, Sprint, and T-Mobile.

 

Telephone Calls

By using the Site and by providing your telephone number to us, whether through forms, orders, responses to promotional offers, or any other means, you agree that we may use your telephone number to contact you regarding your account, all present and future orders, and any other purpose that is consistent with our Privacy Policy, including marketing and promotional purposes. You agree that we may make these calls to a mobile telephone number. You may request to opt out of our communications with you at any time by contacting [email protected].

 

Limited Warranty and Disclaimers of Other Warranties 

 

THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. IN CERTAIN STATES AND JURISDICTIONS, INCLUDING FOR RESIDENTS OF THE STATE OF NEW JERSEY, THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS ARE NOT PERMITTED AND SO THE LIMITATIONS DO NOT APPLY TO YOU.  TO THE EXTENT THAT NHS AND ITS AFFILIATES MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTIES OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.  

 

WE WARRANT THAT DURING THE WARRANTY PERIOD (AS DEFINED BELOW), THE PRODUCTS AND SERVICES PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.  WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THIS LIMITED WARRANTY.  OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REFUND AS SET FORTH IN THIS AGREEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.

 

This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in products and services purchased from the Site. This limited warranty extends only to the original purchaser of products and services from the Site. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of the service. 

 

The “Warranty Period” for this limited warranty starts on the date of the shipment of your order and lasts for ninety (90) days for all products and services. The Warranty Period is not extended if we refund a warranted product or service. In the event the written documentation for certain products includes a return period greater than ninety (90) days, the Warranty Period will be extended to include the entire return period. We may change the availability of the limited warranty in this section at our discretion, but any changes will not be retroactive.

 

This limited warranty does not cover any damages due to transportation; storage; improper use; failure to follow the product instructions; modifications; combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by NHS; or external causes such as accidents, abuse, or other actions or events beyond our reasonable control.

 

With respect to any defective products or services during the Warranty Period, we will, in our sole discretion, refund the purchase price of such products or services subject to the refund procedures described in this Agreement. To obtain warranty service, you must comply with the return procedures described in this Agreement. 

 

The informal dispute resolution procedure detailed below is available to you if you believe that we have not performed our obligations under this limited warranty or this Agreement.

 

LIMITATION OF LIABILITY  

THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY.  IN NO EVENT SHALL NHS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS, BE LIABLE FOR ANY LOSS OF PROFITS, PRODUCTION, GOODWILL, USE, WORK, DATA, REPUTATION OR COSTS OF REPLACEMENT GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ANY GOODS AND/OR SERVICES ACQUIRED THROUGH THE SITE, WHETHER OR NOT NHS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF NHS TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE VALUE PAID BY YOU FOR THE GOODS AND/OR SERVICES WHICH GIVE RISE TO YOUR CLAIM.

 

DISCLAIMER OF WARRANTIES

REGISTRANTS AND USERS ACKNOWLEDGE AND AGREE THAT THEIR USE OF THE SITE IS AT THEIR SOLE RISK. NHS EXPRESSLY DISCLAIMS AND HAS NO RESPONSIBILITY FOR HOW YOU USE THE INFORMATION PROVIDED THROUGH THE SITE, AND MAKES NO PROMISES, GUARANTEES, PREDICTIONS OF SUCCESS OR ANY CLAIMS TO SPECIAL EXPERIENCE, INSIGHT, OR EXPERTISE IN PROVIDING THE SITE. NO INFORMATION OBTAINED FROM NHS, WHETHER PROVIDED ORALLY OR IN WRITING, SHALL CREATE ANY EXPRESS OR IMPLIED WARRANTY, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, NHS SHALL HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED DIRECTLY OR INDIRECTLY AS A CONSEQUENCE OF USING THE SITE. SPECIFICALLY, EXCEPT AS PROVIDED IN THIS SECTION, NHS DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE REGARDING THE SITE.

 

NHS MAKES NO GUARANTY OF THE ACCURACY, CORRECTNESS OR COMPLETENESS OF ANY CONTENT (INCLUDING USER CONTENT) APPEARING ON THE SITE AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS ARISING FROM THE USE OF ANY CONTENT (INCLUDING USER CONTENT) THEREOF, ANY FAILURES, DELAYS OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT (INCLUDING USER CONTENT) CONTAINED THEREIN, LOSSES OR DAMAGES ARISING FROM THE USE OF THE CONTENT (INCLUDING USER CONTENT) APPEARING ON THE SITE, ANY CONDUCT BY REGISTRANTS OR USERS, OR ANY PRODUCTS OR SERVICES PROVIDED THROUGH OR IN CONJUNCTION WITH THE SITE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, ANY SUCH PRODUCTS OR SERVICES PROVIDED AS PART OF THE SITE ARE ACQUIRED BY YOU “AS IS” AND “AS AVAILABLE”. NHS NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY AND/OR THE RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE ON THE SITE. THE CONTENT IS NOT NECESSARILY COMPLETE OR UP TO DATE. ANY CONTENT MAY BE OUT-OF-DATE AT ANY TIME AND WE ARE UNDER NO OBLIGATION TO UPDATE IT.

 

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERIVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITED LINKED TO IT. OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF THE CONTROL OF NHS.  NHS MAKES NO GUARANTY OF CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE.

 

Indemnity

 

You shall indemnify and hold harmless NHS, its affiliates or their licensors, service providers, employees, agents, officers or directors from and against any and all claims, damages, liabilities, injuries, losses or expenses, including attorneys’ fees and expenses of counsel and the collection thereof, that may be incurred by or asserted or awarded against NHS, arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with, any use or misuse of User Content Posted to or transmitted through our Site, your use of our Site, your connection to our Site, your breach of this Agreement, your use of any information obtained from the Site, your use of any products or services obtained from the Site except as authorized in this Agreement, or your violation of any law or the rights of a third party.

 

Limitation of Liability

 

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL NHS, ITS AFFILIATES, OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

 

Dispute Resolution and Binding Arbitration

 

YOU AND NHS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.  ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO (A) YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE OR (B) YOUR USE OF THIS SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

 

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. 

 

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement are void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.  We will be responsible for paying any individual consumer’s arbitration/arbitrator fees. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.  

 

You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within sixty (60) days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

 

You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR NHS WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.  If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

 

Notices

 

To You

We may provide any notice to you under this Agreement: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.

 

To Us

To give us notice under this Agreement, you must contact us as follows: (i) by email to [email protected]; or (ii) by personal delivery, overnight courier or registered or certified mail to 800-316-8556 at 1121C Military Cutoff Rd #360, Wilmington, NC 28405.  We may update the addresses for notices to us by posting a notice on the Site.  Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

 

Electronic Communications

You agree that all communications including but not limited to agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Miscellaneous

 

We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina. 

 

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING THE SITE OR THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.  The failure by us to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision.  The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of NHS.  This Agreement does not and is not intended to confer any rights or remedies upon any person other than you. 

 

If any provision of this Agreement is invalid, illegal, void or unenforceable, then that provision will be deemed severed from this Agreement and will not affect the validity or enforceability of the remaining provisions of this Agreement.  

 

We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

Our order confirmation, this Agreement, and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in this Agreement. 

 

California

 

If you are a California resident and our customer, Cal. Civ. Code 1798.83 permits you to request certain information about our disclosure of personal information to third parties for their direct marketing purposes. To request this information, please send an e-mail to [email protected], call us at (855) 912-0473 or write us at the following address: 1121C Military Cutoff Road, #360, Wilmington, NC 28405.

Likewise, if you are a California resident, you have certain rights under the California Consumer Privacy Act. To learn about your rights and how to exercise them, please visit our Privacy Policy.

                                  

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