Mobile Website Terms and Conditions
Each end-user visitor to the Site (“user,” “you” or “your”) agrees to the terms of the Agreement, in their entirety, when she/he: (a) accesses and/or uses the Site; (b) accesses and/or downloads any of the: (i) text, audio, video, photographs, graphics, artwork and/or other content featured on the Site (collectively, “Informational Content”); and/or (ii) links to third party websites, products and/or services (“Third-Party Links,” and together with the Informational Content, the “Content”); (c) enters one of the sweepstakes, contests and promotions offered on the Site from time-to-time (collectively, the “Promotions”); and/or (d) utilizes the various contact forms and/or contact information made available on the Site as a means to contact directly, or request to be contacted by, Company (collectively, the “Contact Services,” and together with the Site, Content and Promotions, the “Site Offerings”).
PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE SITE OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST COMPANY, AS WELL AS ITS PARENT, SUBSIDIARIES, RELATED PARTIES, THIRD-PARTY SERVICE PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
1. Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between users and Company with respect to users’ use of the Site Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Site Offerings. By your continued use of the Site Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).
2. Requirements; Termination of Access to the Site Offerings; Necessary Equipment. The Site Offerings are available only to individuals who: (a) are over twenty-one (21) years of age; and (b) can enter into legally binding contracts under applicable law (collectively, “Usage Requirements”). The Site Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under twenty-one (21) years of age and/or individuals who cannot enter into legally binding contracts under applicable law. If a user does not satisfy the Usage Requirements in their entirety, that user does not have permission to access or use the Site Offerings.
To the extent permitted by applicable law, Company may terminate your right to access the Site Offerings at any time where you: (i) are in any way in breach of the Agreement; (ii) are engaged in any improper conduct in connection with the Site Offerings; and/or (iii) are, at any time, conducting any unauthorized commercial activity by or through your use of the Site Offerings.
You are responsible, at all times, for ensuring that you have an Internet connection, computer/mobile device, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the Site Offerings. Company does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. Company does not guarantee that the Site Offerings can be accessed: (A) on all mobile devices; (B) through all wireless service plans; (C) in connection with all Internet browsers; or (D) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the Site Offerings through your wireless device. You are fully responsible for all such charges and Company has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
3. Registration Forms. In order to enter a Promotion and/or utilize certain Site Offerings, including the Contact Services, you may be required to submit one or more registration forms (each, a “Form”). The information that you must supply on a Form may include, without limitation: (a) your full name; (b) your mailing address/state of residence; (c) your e-mail address; (d) your telephone number; (e) your date of birth; and/or (f) any other information requested by us on the applicable registration Form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion.
4. Promotions. From time-to-time, Company offers Promotions by and through the Site Offerings. By providing true and accurate information in connection with the applicable Promotion Form(s) and agreeing to the Contest Rules applicable to each Promotion, users can obtain, or attempt to obtain, a chance to win the prizes and other awards offered through each Promotion. Each user understands and agrees that Company shall not be liable to such user or any third-party for any claim in connection with that user’s participation in any of the Promotions.
5. Content. The Site contains Content which includes, but is not limited to, product reviews, text, audio, video, photographs, graphics, artwork, testimonials and other information about Company and/or the Site Offerings. The Content is compiled, distributed and displayed by Company, as well as third-party content providers (collectively, “Third-Party Providers”). Company does not control the Content provided by Third-Party Providers that is made available by and through the Site Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness and/or usefulness of such Content. The Content should not necessarily be relied upon. Reliance on any Content or other information made available to you by and through the Site Offerings is solely at your own risk. Company does not represent or warrant that the Content and other information posted by and through the Site Offerings is accurate, complete, up-to-date or appropriate. You understand and agree that Company will not be responsible for, and Company undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. You agree that Company shall have no obligation and incur no liability to you in connection with any Content. You may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
6. Representations and Warranties. Each user hereby represents and warrants to Company as follows: (a) the Agreement constitutes the legal, valid and binding obligation of user, which is fully enforceable against such user in accordance with its terms; (b) user understands and agrees that user has independently evaluated the desirability of utilizing the Site Offerings and that user has not relied on any representation and/or warranty other than those set forth in the Agreement; and (c) the execution, delivery and performance of the Agreement by user will not conflict with or violate: (i) any applicable law; (ii) any order, judgment or decree applicable to user; and/or (iii) any agreement or other instrument applicable to user.
7. Indemnification. Each user agrees to indemnify, defend and hold Company, its officers, directors, employees, agents and attorneys, as well as the Covered Parties, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and/or expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from and/or related to: (a) any dispute between that user and any third party(ies); (b) that user’s breach of the Agreement and/or any representation or warranty contained herein; and/or (c) that user’s unauthorized and/or improper use of the Site Offerings. The provisions of this Section 7 are for the benefit of Company, its parent, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against users on its own behalf.
8. License Grant. Each user is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site Offerings. Company may terminate this license at any time for any reason. Unless otherwise expressly authorized by Company, users may only use the Site Offerings for their own personal, non-commercial use. No part of the Site Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No user or other third party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the Site Offerings except as expressly permitted by Company. No user or other third party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site Offerings, or any portion thereof. No user or other third party may create any “derivative works” by altering any aspect of the Site Offerings. No user or other third party may use the Site Offerings in conjunction with any other third-party content. No user or other third party may exploit any aspect of the Site Offerings for any commercial purposes not expressly permitted by Company. Each user further agrees to indemnify and hold Company harmless for that user’s failure to comply with this Section 8. Company reserves any rights not explicitly granted in the Agreement.
9. Proprietary Rights. The Site Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any user or other third party of any part of the Site Offerings is strictly prohibited. No user or other third party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through the Site Offerings. The posting of information or material by and through the Site Offerings does not constitute a waiver of any right in or to such information and/or materials. The “Sopexa USA” name and logo, and all associated graphics, icons and service names, are trademarks of Sopexa Food and Wine from France. The use of any trademark without the applicable trademark owner's express written consent is strictly prohibited.
10. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site Offerings is a violation of criminal and civil law and Company will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
11. Disclaimer of Warranties. THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMPANY MAKES NO WARRANTY THAT THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME: (A) WILL, AS APPLICABLE, MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; OR (D) WILL BE ACCURATE OR RELIABLE. THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM COMPANY OR OTHERWISE THROUGH OR FROM THE SITE OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
12. Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND THE OTHER PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE SITE OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY REGISTRATION DATA; AND/OR (E) ANY OTHER MATTER RELATING TO THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF COMPANY TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME, MAY BE BROUGHT BY ANY USER OR COMPANY MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND COMPANY. ACCESS TO THE SITE OFFERINGS WOULD NOT BE PROVIDED TO USERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF COMPANY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Third Party Websites. The Site Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Third-Party Links. Company does not control the information, products or services made available on, by or through these third-party websites. The inclusion of any link does not imply endorsement by Company of the applicable website or any association with the website’s operators. Because Company has no control over such websites and/or resources, each user agrees that Company is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any user’s data privacy by third parties. Each user further agrees that Company shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on, by or through any such site.
14. Editing, Deleting and Modification. Company reserves the right, in its sole discretion, to edit and/or delete any documents, information or Content appearing on the Site.
The following mobile carries are not liable for delayed or undelivered messages:
AT&T, Alltel, T Mobile, Verizon Wireless, U.S. Cellular, Sprint, Boost, Metro PCS, Cellcom, Cellular One, Cellular South, Cincinnati Bell, nTelos, Virgin Mobile, ACS Wireless, Bluegrass, Centennial, Cox Communications, ECIT - Cellular One of East Central Illinois, EKN - Appalachian Wireless, GCI Communications, Immix - PC Management, Inland Cellular, IVC - Illinois Valley Cellular, Nex-Tech Wireless, RCC/Unicel, Revol, RINA/All West Wireless, RINA/CTC Telecom-Cambridge, RINA/FMTC-Farmers Mutual Telephone Co., RINA/Nucla-Naturita Telephone Co., RINA/Silverstar, RINA/Snake River PCS, RINA/South Central, RINA/Syringa Wireless, RINA/UBET, and West Central Wireless.
16. Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in New York, NY and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). The parties hereby agree to arbitrate all claims that may arise under the Agreement. Without limiting the foregoing, should a dispute arise between the parties (including the Covered Parties) including, without limitation, any matter concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in New York, NY, in accordance with the then current Commercial Arbitration rules of the AAA; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in your county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys' fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although we may have a right to an award of attorneys' fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against the Covered Parties and/or their respective employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
17. Miscellaneous. To the extent that anything in or associated with the Site Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence; provided, however, that with respect to any Promotions, to the extent that anything in these Terms and Conditions is inconsistent with the applicable Contest Rules, those Contest Rules shall take precedence. Company’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Company may assign its rights and obligations under the Agreement, in whole or in part, to any party at any time without notice to you. The Agreement may not, however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
18. Contact Us. If you have any questions about the Agreement, Site Offerings or the practices of Company, you may utilize the contact method applicable to the subject matter of your inquiry, as set forth on the “Contact Us” page of the Site, or you can e-mail us at: email@example.com call us at: 1(800) 931-7451; or send us U.S. Mail to: SOPEXA USA, 250 Hudson St. Suite 703, New York, NY 10013.