Terms of Service
Last Revised: 31st of July, 2014
The website located at www.kuranutrition.com (the “Site”) is a copyrighted work belonging to White Cloud Nutrition LLC (“White Cloud Nutrition,” “us,” and “we”).
THESE TERMS OF SERVICE (THE “TERMS”) SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES (AS DEFINED BELOW). BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THE TERMS. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS AND/OR USE THE SITE OR SERVICES.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Certain features of the Site or Services may be subject to additional terms which will be posted on the Site or Services in connection with such features. All such additional terms are incorporated by reference into these Terms; to the extent such terms conflict with these Terms, these Terms shall govern.
1) Services. White Cloud Nutrition provides an online site that, in part, provides users with information on food products and information associated with those products (the “Services”). Through the Services, users can get information on certain health food products, find out where to buy the products, and view and interact with community blog posts related to nutrition and healthy lifestyles. You can create a profile on the Site through a third party service provider that we use to provide you with that functionality. If you wish to provide comments or content on the Site or share content via email with your friends or contacts, you may do so as a guest or through the profile that you set up using the third party service provider. White Cloud Nutrition reserves the right in its sole discretion to remove information and content posted to the Site whether as a guest or through your profile at any time for any reason. You agree that White Cloud Nutrition will not be liable to you or to any third party for such removal.
2) Important Disclaimer and Release. YOU SHOULD CAREFULLY READ ALL INFORMATION PROVIDED IN THE ACTUAL PRODUCT PACKAGING AND LABELS, INCLUDING FOR FOOD ALLERGEN AND CONTACT INFORMATION, NUTRIENT CONTENT, QUALIFIED HEALTH CLAIMS, AND DISCLAIMERS REGARDING FOOD SUPPLEMENT STRUCTURE AND FUNCTION CLAIMS, BEFORE USING OR CONSUMING A PRODUCT. YOU ACKNOWLEDGE AND AGREE THAT THE SITE DOES NOT PROVIDE MEDICAL ADVICE, INFORMATION OR RECOMMENDATION OF ANY KIND AND WHITE CLOUD NUTRITION EXPRESSLY DISCLAIMS THAT IT IS PROVIDING ANY SUCH ADVICE, INFORMATION OR RECOMMENDATION. STATEMENTS CONTAINED ON THE SITE HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION. WHITE CLOUD NUTRITION’S PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. YOUR INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN YOU AND SUCH USER AND WHITE CLOUD NUTRITION SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER, WHITE CLOUD NUTRITION IS UNDER NO OBLIGATION TO BECOME INVOLVED, BUT RESERVES THE RIGHT TO DO SO. THE FOREGOING DISCLAIMERS SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS IN SECTION 9. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions with, or act or omission of, other users. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
3) The Site and Services.
a) License. The Site and Services are protected by copyright throughout the world. Subject to these Terms, White Cloud Nutrition grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal or internal business purposes.
b) Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Site or Services; (ii) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iii) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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; (iv) you shall not access the Site or Services in order to build or promote a similar or competitive website, application, or service; and (v) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the Terms. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. White Cloud Nutrition reserves the right in its sole discretion to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice at any time for any reason. You agree that White Cloud Nutrition will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that White Cloud Nutrition will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
c) Ownership. Except with respect to your User Content (as defined below), you agree that White Cloud Nutrition and its suppliers own all rights, title, and interest in and to the Site and Services. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such Site or Services. White Cloud Nutrition and its suppliers reserve all rights not granted in these Terms.
d) Updates. You understand that the Site and Services are evolving. As a result, we may require you to accept updates to the Site and Services that you have installed on your computer. You acknowledge and agree that we may update the Site and Services with or without notifying you. You may need to update third-party software from time to time in order to use the Site and Services.
e) Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us (“Feedback”) is at your own risk and that White Cloud Nutrition has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to White Cloud Nutrition a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
f) Third Party Materials. As a part of the Site and Services, you may have access to materials that are hosted by another party. You agree that it is impossible for White Cloud Nutrition to monitor such materials and that you access these materials at your own risk.
a) In General. If you wish to provide comments or content on the Site or share content via email with your friends or contacts, you may do so as a guest or through a profile that you set up using a third party service provider that we use to provide you and other members with that functionality. To create a profile, you must provide certain information about yourself as prompted by our third party service provider. Please review the terms of service of our service providers prior to providing any personal information, and please be careful when disclosing personal information about yourself. You agree not to create a profile or use the Site or Services if you have been previously removed by us, or if you have been previously banned from any of the Site or Services. White Cloud Nutrition reserves the right in its sole discretion to suspend or terminate your use of the Site or Services and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that White Cloud Nutrition will not be liable to you or to any third party for any suspension or termination of your use of the Site or Services or any refusal of any use of the Site or Services (or any portion thereof).
5) User Content.
a) Your User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (as defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by White Cloud Nutrition. Because you alone are responsible for your User Content (and not White Cloud Nutrition), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. White Cloud Nutrition is not obligated to remove any information contained in or relating to an introduction from the Site unless required by applicable law. White Cloud Nutrition is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. White Cloud Nutrition has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that White Cloud Nutrition has no obligation to pre-screen User Content, although White Cloud Nutrition reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason.
b) License to User Content. You hereby grant, and you represent and warrant that you have the right to grant, to White Cloud Nutrition an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services and operating and providing the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
c) Ownership. Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
d) User Content Provided by Other Users. The Site and Services may contain User Content provided by other users. We are not responsible for and do not control User Content. We have the right, but no obligation to review or monitor User Content. We do not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
6) Acceptable Use Policy. The following sets forth White Cloud Nutrition’s “Acceptable Use Policy”:
a) In General. As a condition of use, you agree not to use the Site or Services for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (i) take any action or (ii) make available any User Content on or through the Site or Services that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another’s privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (C) in violation of any laws, or obligations or restrictions imposed by any third party; (D) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (E) involves commercial activities and/or sales without White Cloud Nutrition’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (F) impersonates any person or entity, including any employee or representative of White Cloud Nutrition, or falsifies or misrepresents yourself or your affiliation with any person or entity; (G) interferes with or attempt to interfere with the proper functioning of the Site or Services or uses the Site or Services in any way not expressly permitted by the Terms; (H) harasses or interferes with another user’s use and enjoyment of the Site or Services; (I) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent; (J) displays, mirrors, or frames the Site (K) attempts to engage in or engage in, any potentially harmful acts that are directed against the Site or Services, including but not limited to violating or attempting to violate any security features of the Site or Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Site or Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means.
b) Community Guidelines. The Site may include bulletin boards, blogs, comments sections, and other community forums which allow you to post information, provide feedback and comments, and otherwise interact with other users, either through postings or by interacting in real-time. In connection with such community forums, you agree to abide by any rules that White Cloud Nutrition publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose. Although White Cloud Nutrition may from time to time review discussions, chats, comments, transmissions, bulletin boards, blogs, and other community forums available via the Site (the “Community Forums”), you acknowledge and agree that White Cloud Nutrition is under no obligation to monitor or control, and shall have no liability for, any information available via the Community Forums. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content. White Cloud Nutrition reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.
c) Users with Material Connection to White Cloud Nutrition. These guidelines apply to all White Cloud Nutrition employees and contractors or other affiliated parties who have a material connection with White Cloud Nutrition or a vested interest in our success (each a “Representative”) who create, participate in, or contribute to, the Community Forums. Notwithstanding anything herein to the contrary, you are always personally and legally responsible for anything you communicate via the Community Forums.
i. Identify yourself. When communicating via the Community Forums on behalf of White Cloud Nutrition or on topics related to our business or industry, you agree to identify yourself from the first encounter, write under your own name, include your role with the company, and provide a way for people to communicate with you. You agree to never pose as a consumer when communicating via the Community Forums on behalf of us.
ii. Submit Posts for Review. You shall submit to us for our approval all posts to the Community Forums prior to uploading the post. You shall not upload a post until you have received our written approval of such post.
iii. Disclose our involvement. You shall clearly disclose our involvement on all posts to the Community Forums produced by us or our agencies.
d) Investigations. White Cloud Nutrition reserve the right (but has no obligation) to monitor or review the Site and Services and User Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
7) Third-Party Websites & Ads. The Site and Services may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Site and Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of White Cloud Nutrition. White Cloud Nutrition is not responsible for any Third-Party Websites. We provide these Third-Party Websites only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Site, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8) Indemnification. You agree to indemnify and hold White Cloud Nutrition, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Site or Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; (e) your interaction with any other user; or (f) your violation of any applicable laws, rules or regulations. White Cloud Nutrition reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with White Cloud Nutrition in asserting any available defenses. You agree not to settle any matter without the prior written consent of White Cloud Nutrition. White Cloud Nutrition will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
9) Disclaimers. YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK, AND THE SITE, SERVICES AND ANY INFORMATION MADE AVAILAVLE VIA THE SITE ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND WITH ALL FAULTS. WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, ENDORSEMENTS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT WITH REGARD TO THE SITE, THE SERVICES, THE INFORMATION MADE AVAILABLE VIA THE SITE OR ANY PRODUCTS OFFERED VIA THE SITE OR LINKS TO THIRD PARTY WEBSITES. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) ANY ERRORS IN THE SITE OR SERVICES WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10) Limitation on Liability. YOU UNDERSTAND AND AGREE THAT IN IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, OR ANY OTHER MATTER RELATED TO THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WHITE CLOUD NUTRITION AND YOU.
11) Copyright Policy. White Cloud Nutrition respects the intellectual property of others and asks that users of our Site and Service do the same. In connection with our Site and Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: 1. Your physical or electronic signature; 2. identification of the copyrighted work(s) that you claim to have been infringed; 3. identification of the material on our services that you claim is infringing and that you request us to remove; 4. sufficient information to permit us to locate such material; 5. your address, telephone number, and e-mail address; 6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and 7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. White Cloud Nutrition’s Copyright Agent to receive DMCA takedown notices is Bridget Liddell, Director, White Cloud Nutrition LLC, 2355 Westwood Blvd., PMB 346, Los Angeles, CA 90064-2109, USA. For clarity, only DMCA takedown notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be direct to the applicable services links posted on the Site. You acknowledge that for us to be authorized to takedown any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
12) Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services or (b) terminate the Terms, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of these Terms. Upon termination of this Agreement, your right to access and use the Site and Services will terminate immediately. You understand that this may involve deletion of your User Content associated therewith from our live databases; however we reserve the right to continue to use your User Content. White Cloud Nutrition will not have any liability whatsoever to you for any termination of the Terms, including for termination of your use of the Site or Services or deletion of your User Content. If you want to terminate your use of the Services, you may do so by (i) notifying us at any time. Even after the Terms are terminated, the following provisions of the Terms will remain in effect: Sections 2, 3 (excluding 3(a)), 5 – 13.
a) Changes to the Terms. The Terms are subject change by White Cloud Nutrition in its sole discretion at any time. When changes are made, we will make a new copy of the Terms available at the Site and we will change the “Last Revised” date above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
b) DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION.
i. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and White Cloud Nutrition or White Cloud Nutrition’s employees, agents, successors, or assigns, shall be referred to and finally determined by binding and confidential arbitration, except that you or White Cloud Nutrition may take claims to small claims court if the dispute qualifies for hearing by such a court. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
ii. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
iii. You and White Cloud Nutrition must abide by these rules: (A) ANY CLAIMS BROUGHT BY YOU OR WHITE CLOUD NUTRITION MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (C) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, White Cloud Nutrition will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (D) White Cloud Nutrition also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (E) the arbitrator shall honor claims of privilege and privacy recognized at law; (F) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (G) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (H) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law. With the exception of (iii)(A) and (B) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (iii)(A) or (B) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor White Cloud Nutrition shall be entitled to arbitration.
iv. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 10 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
v. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief to protect its intellectual property rights and any claims regarding infringement or misappropriation of its intellectual property rights shall not be subject to this arbitration agreement. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California and you and White Cloud Nutrition consent to the exclusive jurisdiction of the courts in Los Angeles County, California.
c) Choice of Law. The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
d) Notice. Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to White Cloud Nutrition at the following address: White Cloud Nutrition LLC, 2355 Westwood Blvd., PMB 346, Los Angeles, CA 90064-2109, USA. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
e) Export Control. You may not use, export, import, or transfer the Site or Services (or any portion thereof) except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Site or Services (or any portion thereof), and any other applicable laws. You also will not use the Site or Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, services, or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer White Cloud Nutrition products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
f) Copyright/Trademark Information. Copyright © 2014, White Cloud Nutrition, LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
g) Electronic Communications. The communications between you and White Cloud Nutrition use electronic means, whether you visit the Site or Services or send White Cloud Nutrition e-mails, or whether White Cloud Nutrition posts notices on the Site and Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from White Cloud Nutrition in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that White Cloud Nutrition provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
h) Force Majeure. White Cloud Nutrition shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
i) Limitations Period. YOU AND WHITE CLOUD NUTRITION AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SITE OR THE SERVICES, OR USER CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
j) Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without White Cloud Nutrition’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
k) Contact Information. If you have any questions, complaints or claims with respect to the Site or Services, please contact us at the following:
White Cloud Nutrition, LLC
2355 Westwood Blvd.
Los Angeles, CA 90064-2109, USA