Effective Date: 24 April 2023

PLEASE READ THESE TERMS AND CONDITIONS OF USE (“TERMS OF USE”) CAREFULLY BECAUSE THEY CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND VITAMIN WELL LLC, INCLUDING ITS SUBSIDIARIES AND AFFILIATES (“COMPANY”). By accessing any area of this site, users (“users” or “you”) agree to be legally bound without limitation, qualification, or change and to abide by these Terms of Use, which will constitute our agreement (“Agreement”). THE TERMS OF USE INCLUDE PROVISIONS FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

THESE TERMS OF USE INCLUDE AN AGREEMENT TO MANDATORY INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THIS SITE, THE USE OF COMPANY’S SERVICES, PURCHASE OF PRODUCTS, OR THESE TERMS OF USE TO BINDING ARBITRATION RATHER THAN PROCEEDING IN COURT. YOU MAY OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT ONLY BY FOLLOWING THE PROCEDURES BELOW. THESE TERMS ALSO INCLUDE A JURY WAIVER.

Company urges you to carefully review these Terms and Conditions of Use (“Terms of Use“) as they contain the legal terms and conditions that govern your use of and access to the websites and online services that Company operates which include www.shop.nocco.com and other sites that link to these Terms of Use (“Site“).

By using the Site or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, acknowledge having read our Privacy Statement found here, and represent and warrant that you are at least 18 years old. If you do not want to agree to these Terms of Use, you must not access or use the Site. Your continued access or use of the Site following changes to these Terms of Use will constitute your acceptance of any changes to our Terms of Use.

1. ACCESSING AND USING OUR SITE. 

Company reserves the right to amend, update and withdraw the Site, and any service or content Company provide on the Site, in our sole discretion without notice. Company will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.

You may be provided with a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that any accounts you create are personal to you and agree not to provide any other person with access to this Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

Company have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

Our Site is intended for personal, non-commercial use and may not be exploited in connection with any business or commercial purpose without the prior express written permission of Company.

2. SITE CONTENT AND INTELLECTUAL PROPERTY RIGHTS

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 Company, 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. Subject to your compliance with these Terms of Use, you are granted a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Site. The licenses granted by Company terminate if you do not comply with these Terms of Use.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of the Terms of Use, you are prohibited from accessing the Site and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are retained by Company or its licensors or other rights holders. Any use of the Site not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. You must not use, reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Site unless authorized under these Terms of Use.

Company’s name, marks, logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company.

3. USER CONTENT  

Company may include features on the Site that allow you to share your communications, information, photos or other content (“User Content“) with us and with other users of the Site. You agree you will not send, upload or transmit any User Content of any type that infringes or violates any rights of any party or violates these Terms of Use. Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Site you grant Company a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such User Content anywhere in the world and through any media for any purpose.

You represent and warrant that:

• You own or control all rights in and to the User Content and have the right to grant the license granted above 
• All of your User Content do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

Company will not be responsible or liable to any third party for the content or accuracy of any User Content you post on the Site.

4. PROHIBITED USES

You may use the Site only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Site:

• 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).
• To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
• To impersonate or attempt to impersonate Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• 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 Company or users of the Site, or expose them to liability.
• To transmit, post, publish or send any unlawful, threatening, defamatory, obscene, scandalous, deceptive, fraudulent, tortious, obscene, pornographic, inflammatory, profane or infringing material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law.
• To express or imply that Company endorses any statement or posting you make, or any products or services you may offer.

Additionally, you agree not to:

• Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
• Use any device, software, or routine that interferes with the proper working of the Site.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• 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.
• Otherwise attempt to interfere with the proper working of the Site.
• Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.
• Remove any copyright, trademark or other proprietary rights notices from the Site or from materials originating from the Site.

5. ENFORCEMENT AND TERMINATION OF SITE USE

Company has the right to remove or refuse to post any User Content for any reason in its sole discretion, including if Company believes that such User Content violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for Company. In addition, Company has the right to:

• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
• Terminate or suspend your access to all or part of the Site for any reason including, without limitation, any violation of these Terms of Use.

Without limiting the foregoing, Company has the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. 

Company cannot review all material before it is posted on the Site, and cannot ensure prompt removal of objectionable material after it has been posted. As such, Company assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. 

6. RELIANCE ON SITE INFORMATION

Certain information presented on or through the Site, including general nutrition and wellness information, is made available solely for general information purposes. Company disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site or by anyone who may be informed of any of its contents.

The Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, aggregators, and/or reporting services. All statements expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Company, are solely the opinions and the responsibility of the person or entity providing those materials. Company is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Any general nutrition, fitness and wellness information is not intended to be construed as or be a substitute for professional medical advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of anything on or associated with the Site.

7.  ONLINE PURCHASES AND TERMS AND CONDITIONS

All purchases through the Site or other transactions for the sale of goods or services formed through the Site are governed by the Terms of Sale.

8.  THIRD PARTY LINKS

If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Company has no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

9.  DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

You understand that Company cannot and does 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 the Site for any reconstruction of any lost data. 

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND OUR SERVICES AND ALL INFORMATION, CONTENT, PRODUCTS, AND MATERIALS INCLUDED ON OR MADE AVAILABLE TO YOU THROUGH OUR SITE ARE PROVIDED BY COMPANY ON AN “AS IS”, “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF OUR SITES, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH OUR SITE INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.

10. INDEMNIFICATION

Except to the extent prohibited by law, you agree to defend, indemnify, and hold Company, its officers, directors, employees, agents, licensors and suppliers, harmless from and against any claims, actions or demands, costs, liabilities, and settlements including without limitation, reasonable legal and accounting fees, arising out of your use of or activities in connection with the Site or any allegation that User Content from you infringes or violates the intellectual property rights of others, or that otherwise arises out of your violation of these Terms of Use.

11. GOVERNING LAW AND VENUE

You agree to give Company an opportunity to resolve any problem, dispute or claim relating in any way to the Site or any of its related applications or products/services, including any dealings with Company, our marketing and customer service agents, or the performance of any services or products offered through the Site or any representations from Company (each a “Claim” and collectively “Claims”).  You must send Company a written notice of the Claim by email to help@nocco.com with the subject line: “Terms of Use – Dispute Notice.”  You and Company each agree to negotiate your Claim in good faith. If Company cannot resolve your Claim within 60 days of receiving your notice at this address, you may pursue your Claim as explained in this section. 

The Terms of Use and the provision of our services or products will be governed and interpreted pursuant to the laws of the State of Delaware, without reference to Delaware conflict of law rules. With respect to any disputes or Claims not subject to arbitration, as set forth in this section, you and Company agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles, California.

12. ARBITRATION 

Please read this section carefully. It affects rights that you may otherwise have.  It provides for resolution of most disputes through binding arbitration instead of court trials and class actions.  This arbitration clause will survive termination of these Terms of Use.

This provision is intended to be given the broadest interpretation and application to encompass all disputes or Claims arising out of or relating to your relationship with Company, including the use of the Site, products, services and any other interactions with us. As set forth above, if Company are unsuccessful in resolving your Claim following 60 days after our receipt of your written notice to the appropriate address, any dispute or Claim arising out of or relating to your relationship with Company or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that either of us may take Claims to small claims court if they qualify for hearing by such a court.

Notwithstanding the above, you may opt out of this binding arbitration provision within 30 days after this section comes into effect (the “Opt Out Deadline”). This will be the earliest of (a) the date you first used the Site, (b) the date you first used Company’s services or (c) the date you started a relationship with Company. You may opt out of these arbitration procedures by sending us a written notice by email to help@nocco.com with the subject line: “Arbitration –Opt-Out Notice”.

Company must receive your opt out notice no later than 3 days after the Opt Out Deadline for it to be valid. You agree that you must pursue any Claim in arbitration or small claims court if Company does not receive an opt-out notice from you, or if Company receives an opt-out notice from you more than 3 days after the Opt Out Deadline. 

For all Claims, whether pursued in arbitration or small claims court, it is a condition precedent that you must first send a written description of your Claim to Company as set forth above to allow us an opportunity to resolve the dispute. 

The arbitration of any dispute or Claim will be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules  (as applicable), as modified by this section. The AAA Rules and information about arbitration and fees are available online at www.adr.org . To the extent of any inconsistency, this section will supersede and govern over the AAA Rules.

You and Company agree that this section evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award any relief to either party that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your Claim, as well as afford public injunctive relief where such remedies are permitted and cannot be waived by applicable law.  

Any arbitration will be confidential, and neither you nor Company may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

Company agrees that Company will pay all filing, administration and arbitrator fees other than the initial filing fee that you must pay to file the initial arbitration demand, and if your Claim is for less than $1,000 Company will reimburse you for the filing fee if you provide a written request for reimbursement with evidence of insufficient funds to pay the fee yourself.  Otherwise, you and Company will each bear the fees and expense of respective attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration.

In addition to the above, you and Company each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action, provided that, and for the avoidance of all doubt, you will be permitted to seek injunctive relief as described below.  If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, this arbitration section will be void as to you.  If you opt out of the arbitration provision as specified above, this class action waiver provision will not apply to you.  Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above. 

Notwithstanding the above Terms of Use, nothing in this section will be construed to waive any right you have under applicable law to pursue a Claim for injunctive relief with the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public.  Any such public injunctive relief Claims are preserved and will be subject to arbitration.  To the extent permitted by applicable law, any determination of the extent to which your Claims qualify as seeking public injunctive relief will be heard and decided by the arbitrator. If for any reason a Claim proceeds in court rather than through arbitration, you and Company each waive any right to a jury trial.

13. NO WAIVER

No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Company failure to assert any right or provision under the Terms of Use shall not constitute a waiver of such right or provision.

14.  MISCELLANEOUS

If any part of these Terms of Use is unlawful, void, or unenforceable, solely that part, to the minimum extent possible, will be deemed severable, and will not affect the validity or enforceability of any remaining provisions. Specific services, promotions and sections of this Site may include additional terms and requirements, and those additional terms and requirements will supplement these Terms of Use with respect to the items to which they apply. Company may revise or modify this Site, these Terms of Use, products, product information or pricing without notice.

15. ENFORCEMENT AND SEVERABILITY

The failure of Company to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized Company representative. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If any term or condition in these Terms of Use is deemed invalid, void, or unenforceable, that term or condition shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition.

16.  CONTACT

The Site is operated by Vitamin Well LLC located at c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808, United States.

All notices of copyright infringement claims should be sent to help@nocco.com. It is Company policy, in appropriate circumstances, to terminate repeat infringers.

All other feedback, comments, requests for technical support, and other communications related to the Site should be sent to: help@nocco.com