FORKS OVER KNIVES TERMS OF USE
These TERMS OF USE (these "Terms") were last revised and updated on May 30, 2024.
These Terms are agreed to between Upbeet Brands, Inc. and its affiliates and subsidiaries (collectively, "Upbeet Brands", “us”, “we” or “our”) and you or, if you are accessing or using the Offerings on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “you” or “your”).
These Terms incorporate by reference our Privacy Statement, which sets forth, among other things, the categories of private information we collect from you, how we use that private information, and other persons or entities with whom we may share that information. Please review our Privacy Statement before agreeing to these terms.
In addition to any other terms you may agree to in connection with such Offerings, these Terms apply
to: (1) all websites, mobile applications, blogs or platforms (collectively “Sites”) that link to or otherwise
incorporate these Terms and are provided by Upbeet Brands, including our Cooking School and Forks
Meal Planner; (2) all books, magazines, motion pictures, Subscriptions, programs, services, and other
products made available for order on or through the Sites, including our Cooking School and Forks Meal
Planner (collectively, the “Products”); (3) all content and other materials available through the Sites or
Products, including, without limitation, any Upbeet Brands logo and all designs, text, graphics, pictures,
information, data, recipes, software, sound files, User Content (as defined below), other files and the
selection and arrangement thereof (collectively “Content”); and (4) your participation in any Upbeet
Brands events or programs (“Events”). In these Terms, we refer to the Sites, Products, Content, and
Events collectively as the “Offerings.”
THE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU (OR THE ENTITY ON WHOSE BEHALF YOU ACCESS THE OFFERINGS) AND UPBEET BRANDS; PLEASE CAREFULLY READ THEM CAREFULLY BEFORE ACCESSING OR USING ANY OFFERINGS. BY ACCESSING OR USING ANY OFFERINGS, OR BY CLICKING “I AGREE” TO THESE TERMS, YOU AGREE TO ENTER INTO AND BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, BY ACCESSING OR USING ANY OFFERING YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT HAVE SUCH AUTHORITY, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THE TERMS, YOU MUST NOT ACCESS OR USE ANY OFFERINGS.
THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND UPBEET
BRANDS ARE RESOLVED AND CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IN PARTICULAR, THE ARBITRATION AGREEMENT IN SECTION 15 WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND UPBEET BRANDS TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION, UNLESS YOU OPT OUT. IN ADDITION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT IN ANY CLASS OR REPRESENTATIVE PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND YOUR RIGHT TO HAVE A JURY TRIAL.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with
us in respect of any Offerings. Upbeet Brands reserves the right to change or modify these Terms at any
time and in our sole discretion. If we make changes to these Terms, we will provide notice of such
changes, such as by sending an email notification, providing notice through the Sites, and/or updatingthe “last revised and updated” date at the beginning of these Terms. By continuing to access or use the Offerings, you confirm your acceptance of the revised Terms and all of the terms incorporated therein
by reference. We encourage you to review the Terms frequently to ensure that you understand the
terms and conditions that apply when you access or use the Sites or place orders, receive, or use the
Products. If you do not agree to the revised Terms, you may not access or use the Sites, or place orders,
receive or use the Products or services that we offer.
THE SITE AND SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY.
UPBEET BRANDS DISCLAIMS ALL RESPONSIBILITY FOR ANY LIABILITY, LOSS OR RISK, PERSONAL OR OTHERWISE, WHICH IS INCURRED AS A CONSEQUENCE, DIRECTLY OR INDIRECTLY, OF THE USE AND/OR APPLICATION OF ANY OFFERINGS OR SERVICES, INCLUDING ANY INFORMATION ON THE SITES AND ANY CHANGE IN A SUBSCRIBER’S DIET. THE OFFERINGS MAY OFFER HEALTH, DIET AND MEDICAL RELATED INFORMATION DESIGNED ONLY FOR NON-COMMERCIAL, INFORMATIONAL PURPOSES. YOU SHOULD NOT RELY ON ANY INFORMATION PROVIDED BY THE OFFERINGS AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE HEALTH OF ANOTHER PERSON OR THE CONTENT OF THE OFFERINGS, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM A HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITES OR THROUGH THE OFFERINGS. THE USE OF ANY INFORMATION PROVIDED ON THE SITES OR THROUGH THE OFFERINGS IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OFFERING IS INTENDED TO BE, AND MUST NOT BE CONSIDERED, THE PRACTICE OF MEDICINE OR COUNSELING CARE. DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS, NUTRITION AND OTHER MEDICAL CARE TOPICS DISCUSSED ON THE SITES OR THROUGH THE OFFERINGS AND NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE SITES OR THROUGH THE OFFERINGS WILL ALWAYS INCLUDE THE MOST RECENT FACTS, FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. WE DO NOT RECOMMEND, ENDORSE OR CONFIRM THE ACCURACY OR APPRORIATENESS OF ANY SPECIFIC TESTS, PHYSICIANS, CLINICS, PROCEDURES, OPINIONS, PRODUCTS OR OTHER INFORMATION THAT MAY APPEAR ON THE SITES OR THROUGH THE OFFERINGS. IF YOU RELY ON ANY OF THE INFORMATION PROVIDED BY THE SITES OR THE OFFERINGS, OUR EMPLOYEES, OR GUESTS OR OTHER USERS OF THE OFFERINGS, YOU DO SO SOLELY AT YOUR OWN RISK.
1. Eligibility.
The Sites are not targeted toward or intended for use by anyone under the age of 13. By using the Sites, you represent and warrant that you (a) are 13 years of age or older (or applicable age of maturity in your country), (b) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (c) do not have more than one Upbeet Brands Account, and (d) have full power and authority to enter into these Terms, grant the rights and licenses described herein, and that doing so will not violate any other agreement to which you are a party.
2. PROHIBITED ACTIVITIES.
You acknowledge and agree that the Sites and Offerings contain proprietary and confidential
information that is protected by applicable intellectual property and other laws and are the sole
property of Upbeet Brands or our content providers. Unless otherwise specified in writing, the Offerings are for your personal and non-commercial use. In connection with your use of the Sites and/or
Offerings, you acknowledge and agree that you will not:
(a) Copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code,
distribute, transmit, display, perform, reproduce, publish, license, create derivative works from,
transfer or sell any information, software, products, or services obtained through Sites or the
Offerings;
(b) Use any robot, spider, site search and/or retrieval application, or other devices to crawl, scrape,
database scrape, screen scrape, harvest, gather, extract, retrieve or index any portion of the
Offerings;
(c) Use any text, code, image, audio, or other content from any portion of the Offerings (a) for data set
creation, analysis, or manipulation (including activities sometimes called “data mining,” “text and
data mining,” or “TDM”) and/or (b) in connection with the development or operation of any
software program, including but not limited to any artificial intelligence or machine learning model,
software, or process (such as training, fine-tuning, embedding, and the like), either directly or
indirectly, including through a third-party (including use of a third-party dataset created in any part
by prohibited means);
(d) Post or transmit any material that contains a virus or corrupted data;
(e) Delete any author attributions, legal notices or proprietary designations or labels;
(f) Violate any applicable local, state, national or international law, rule or regulation or use the Sites
and/or Offerings for any purpose that is prohibited by these Terms;
(g) Manipulate or otherwise display the Sites and/or Offerings by using framing or similar navigational
technology;
(h) Register, subscribe or unsubscribe any party for any Upbeet Brands product or service if you are not
expressly authorized by such party to do so;
(i) Use the Sites and/or Offerings in any manner that could damage, disable, overburden or impair
Upbeet Brands' servers or networks or interfere with any other user's use and enjoyment of the
Sites and/or Offerings;
(j) Gain or attempt to gain unauthorized access to any of the Sites, Offerings, accounts, computer
systems or networks connected to Upbeet Brands through hacking, password mining or any other
means;
(k) Obtain or attempt to obtain any materials or information through any means not intentionally made
available through Sites or the Offerings or harvest or otherwise collect information about other
users without their consent;
(l) Use the sites in any manner that could damage, disparage, or otherwise negatively impact Upbeet
Brands
(m) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, INFORMATION OR MATERIALS PROVIDED BY UPBEET BRANDS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
3. Registration, Account, Electronic Communications, Mobile Service.
3.1. Registration and Account.
In order to access and use certain areas or features of the Sites, you will need to register for an Upbeet
Brands account (“Account”). Approval of your request to establish an Account will be at the sole
discretion of Upbeet Brands. Each Account and the user identification and password for each Account
(the “Account ID”) is personal in nature. Each Account is for your personal use and each Account ID may
be used only by you alone. You may not distribute or transfer your Account or Account ID or provide a
third party with the right to access your Account or Account ID. You are solely responsible for all use of
any Offerings through your Account. You will ensure the security and confidentiality of your Account ID
and will notify us immediately if any Account ID is lost, stolen or otherwise compromised. Any
transactions completed through your Account or under your Account ID will be deemed to have been
lawfully completed by you.
In connection with establishing an Account, you may also be asked to submit certain information about
yourself (“Account Information”). You agree that: (1) all Account Information you provide will be
accurate, current, and complete; and (2) you will maintain and promptly update your Account
Information to keep it accurate, current, and complete. You may not: (a) select or use an Account ID of
another person with the intent to impersonate that person; and (b) use an Account ID that we, in our
sole discretion, deem offensive.
3.2 Electronic Communications.
By creating an Account, unless you advise us otherwise you also consent to receive electronic
communications from Upbeet Brands (e.g., via email or by posting notices to the Sites). These
communications may include notices about your Account (e.g., payment authorizations, password
changes and other transactional information) and are part of your relationship with us. You agree that
any notices, agreements, disclosures, or other communications that we send to you electronically will
satisfy any legal communication requirements, including, but not limited to, that such communications
be in writing. You should maintain copies of electronic communications from us by printing a paper copy
or saving an electronic copy. We may also send you promotional communications via email, including,
but not limited to, newsletters, special offers, surveys and other news and information we think will be
of interest to you. You may opt out of receiving these promotional emails at any time by following the
unsubscribe instructions provided therein.
3.3. Mobile Service.
We may offer and operate a mobile message service, which may include SMS/text messaging service
(the "Mobile Service") from time to time. Your use of the Mobile Service constitutes your agreement to
the terms and conditions set forth in these Terms, and specifically this Section 3.3 (this Section 3.3., the
“Mobile Terms”). We may modify or cancel the Mobile Service or any of its features without notice. To
the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your
continued use of the Mobile Service following the effective date of any such changes shall constitute
your acceptance of such changes.
By consenting to the Mobile Service, you agree to receive recurring SMS/text messages from and on
behalf of Upbeet Brands through your wireless provider to the mobile number you provided, even if
your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent
using an automatic telephone dialing system or other technology. Offering-related messages may
include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional
messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
You understand that you do not have to sign up for this program in order to make any purchases, and
your consent is not a condition of any purchase with Upbeet Brands. Your participation in this program
is completely voluntary.
We do not charge for the Mobile Service, but you are responsible for all charges and fees associated
with text messaging imposed by your wireless provider. Message frequency varies. Message and data
rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely
responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of the Mobile Service at any time. Text the single keyword command STOP to
+18443868509 or click the unsubscribe link (where available) in any text message to cancel. You'll
receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile
device, unless initiated by you. If you have subscribed to other Upbeet Brands mobile message programs
and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately
from those programs by following the instructions provided in their respective mobile terms.
For Mobile Service support or assistance, text HELP to +18443868509 or email
support@upbeetbrands.com.
We may change any short code or telephone number we use to operate the Mobile Service at any time
and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP
requests, you send to a short code or telephone number we have changed may not be received and we
will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Mobile Service are not liable for delayed or undelivered
messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will
need to sign up for the program with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or
misdirected delivery of any information sent through the Mobile Service, any errors in such information,
and/or any action you may or may not take in reliance on the information or Mobile Service.
We respect your right to privacy. To see how we collect and use your personal information, please see
our Privacy Statement.
4.1 Meal Planning Subscriptions; Cancellation Policy.
The Forks Meal Planner offers different subscription plans for the meal planning service (each, a
“Subscription”). Note that a meal plan Subscription provides suggestions for meal plans and recipes only and does not deliver or provide ingredients.
The Forks Meal Planner is a subscription service, which requires an initial payment when signing up for a
subscription and thereafter will bill you on a monthly or annual basis to continue your subscription.
Unless paused or cancelled, you will receive an electronic meal plan in accordance with your selected
plan. Each Subscription will be charged to your payment method on file at the established subscription
fee rate, plus any additional fees, or taxes, as applicable. Prices are subject to change in our sole
discretion. As a customer, you may receive e-mails notifying you when new meal plans are available.
When you register for a meal planning Subscription, you expressly acknowledge and agree that (a)
Upbeet Brands (or our third party payment processor) is authorized to charge you on a monthly or
annual basis for your Subscription (in addition to any applicable taxes and other charges) for as long as
your Subscription continues, and (b) your Subscription is continuous until you cancel it or we suspend or
stop providing access to the Sites or Products in accordance with these terms.
You may cancel your Subscription, change your plan, or change the preferences or settings for your
Subscription on our website. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION PLAN CHARGES (IN
ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED BEFORE THE EFFECTIVE DATE OF YOUR CANCELLATION.
In the event you cancel your Subscription or Free Trial (as described below), please note that we may
still send you promotional communications about Upbeet Brands, unless you opt out of receiving those
communications by following the unsubscribe instructions provided therein.
4.2 Free Trial.
We may offer a free trial for a limited period of time (“Free Trial”). You may be required to enter your
billing information in order to sign up for the Free Trial. If you do enter your billing information when
signing up for the Free Trial, you will not be charged until the Free Trial has expired. On the last day of
the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the
applicable Subscription fees for the type of Subscription you have selected. At any time and without
notice, we reserve the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel
such Free Trial offer. Further, if any Offerings are provided as part of a Free Trial, we reserve the right to
make those Offerings, updates, upgrades, new versions, or other products that incorporate those
Offerings (collectively, “Future Products”) available for a fee, and we will have no obligation to provide
Future Products to you for free. Future Products may also be subject to separate fees and/or
agreements for such Future Products. You acknowledge that you are responsible for all fees and
expenses related to accessing or using the Offerings.
4.3 Payment and Billing Information.
By providing a credit card or other payment method that we accept, you represent and warrant that you
are authorized to use the designated payment method and that you authorize us (or our third party
payment processor) to charge your payment method for the total amount of your Subscription or other
purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If
the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be
suspended or cancelled. You must resolve any problem we encounter in order to proceed with your
Order. In the event you want to change or update payment information associated with your Account,
you can do so at any time by logging into your Account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your plan or
changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
4.4 Pricing and Availability.
The Offerings may be made available via registration, a signed agreement, an order form or via account
sign-up and may be for a fee or made available at no fee. All prices are shown in U.S. dollars and
applicable taxes and other charges, if any, will be charged in addition to the prices shown on the Sites.
We reserve the right to adjust prices as we may determine in our sole discretion, at any time and
without notice; provided, however, that if we change the amounts or other charges associated with your
Subscription, we will provide advance notice of such changes in accordance with these Terms. We will
not, however, notify you of changes in any applicable taxes. The shipment of merchandise or a plan, as
applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless
you cancel your Subscription(s) in accordance with the cancellation policies set forth in Sections 4.1, as
applicable .All of our Products are subject to availability, and we reserve the right to impose quantity
limits on any Order, to reject all or part of an Order, to make partial shipments of any Order, to
discontinue offering certain Products, and to substitute Products without prior notice. We strive to
provide you with high-quality Products, and given the perishable nature of certain Products and market
conditions beyond our control, we may be required to make substitutions from time to time. If you are
not satisfied with a substitution, please contact us at support@upbeetbrands.com.
The information regarding price, Product specifications, and availability contained on the Site has been
provided by our manufacturers, vendors, and suppliers (“Suppliers”). The prices charged by Suppliers on
the Site are the prices agreed upon by us at the time the Supplier joins the Site. Although we will
attempt to make certain that the prices listed on the Site are accurate, and that out-of-stock items are
marked or removed from the inventory on the Site, prices and product availability may differ and are
subject to change, including if you select a delivery or pickup date that is different from the date on
which you place your order. Moreover, though every effort is made to ensure accuracy in posting pricing
information, discrepancies do occur. In the event that the checkout price and the price posted on the
Site are different, the checkout price will prevail.
Of course, if you become aware that the Site or any Offering contains inaccurate information, please
contact us at support@upbeetbrands.com as we welcome your feedback. If you provide
recommendations, suggestions, improvements or other feedback (collectively, “Feedback”), you agree
that we will have a license and royalty-fee free, worldwide perpetual and irrevocable right to use and
incorporate such Feedback into the Offerings without restriction and without any obligation or
compensation to you or any third party. We may, at any time, revise or change the pricing, availability,
and specifications, content, descriptions or features of any Products or services offered or sold through
the Site. If you have already placed an order or are on a recurring order plan, we will make efforts to
notify you of any price change at least two (2) weeks before taking effect.
4.5 Taxes.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a
duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at
checkout may be adjusted. Several factors may cause this, such as variances between processor
programs and changes in tax rates.
4.6 Shipping and Handling.
You agree to pay any shipping and handling charges shown at the time you make a purchase. We
reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to
time, but we will provide notice of the charges applicable to you before you make your purchase.
Generally, shipping is handled by a third-party courier. When you purchase a Product from Upbeet
Brands, any shipping times shown on the Sites are estimates only. Actual delivery dates may vary. You
agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from
us are made pursuant to a shipment contract. This means that title to and the risk of loss of such
Products passes to you upon our delivery of the Product to the third-party courier.
4.7 Deliveries.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon
delivery. In addition, you are solely responsible for determining the freshness of the Products you
receive. You should always inspect your delivery to confirm that the product has arrived in good
condition. If you have any reason to believe that any Product in your delivery is not suitable for
consumption or differs from what you ordered, please contact us at support@upbeetbrands.com. To
maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all
perishable Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions
on refrigeration and food safety.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at
your door. Any individual at the delivery address who accepts a delivery from us is presumed to be
authorized to receive such delivery. In cases in which you have designated an alternative receiver, such
person shall accept the delivery under all of the same terms and conditions that would apply had you
accepted the delivery yourself.
In the case of inclement weather or other events beyond our control that interfere with our ability to
deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases,
delivery may occur prior to the scheduled delivery date. In the event that timely delivery is not feasible,
we will cancel your delivery for the period so affected and issue you a credit or refund of the purchase price for that delivery.
4.8 No Resale.
Our Products are for your personal use and consumption only. You are not permitted to resell,
distribute or otherwise use the Products for commercial purposes.
4.9 Returns, Replacement.
If you are dissatisfied with an Offering for any reason, please contact us at support@upbeetbrands.com.
Certain items are not returnable unless required by law. If we elect to provide you a full or partial
refunds we will provide the refund via a credit to the credit card used to buy the Offering. Return and
refund policies vary by product or service as follows:
(a) Books, magazines, DVDs, and merchandise. All sales are final. In cases of a manufacturing defect
or damage during shipping, such Products may be returned in the same condition as when you received
it. Please notify us in writing within thirty (30) days of sale and we will replace any defective items in
their original packaging after inspection to confirm the defect.
(b) Meal Planner: After enrolling you may be provided a free trial period. If you are not satisfied, you may cancel before your free trial ends. Please refer to the Free Trial terms in Section 4.2 for more information
(c) Online Cooking Course: Owned and operated by Rouxbe Video Technologies Inc. and its parent
company, Rouxbe Global Food Group, Inc., d/b/a Rouxbe Cooking School (“Rouxbe”) and subject to
Rouxbe’s terms and conditions in addition to these Terms. Please reference Rouxbe’s FAQ page for more
information about their cancellation and return policy.
(d) Shipping: If you are sending a return item within the United States and the item is valued at $100
or more, insure the shipment for the value of the item and ship your return with a signature shipping
service. Items valued over $35 must be returned to the seller with a trackable shipping service. For items
below $35, we suggest USPS delivery confirmation service. If a package doesn’t arrive and you don’t use a trackable method to return or if you refuse the shipment as a method of return, we may not be able to process your return.
5.1 The Site.
Subject to Your compliance with these Terms, Upbeet Brands will permit you to access and use the Site
solely for lawful purposes and only in accordance with these Terms and the terms of any other
agreement you agree to before being given access to any specific areas of the Site or in relation with any
Offering. Any additional agreement is in addition to these Terms and will govern your use of the
Offerings to which the additional agreement applies in the event of a conflict between the terms of
these Terms and the additional agreement.
5.2. Content.
Unless otherwise noted on the Site, other than Your Content, all Content available through the Site is
owned by Upbeet Brands, the users providing that Content, or our other Content providers. All Content
is for informational purposes only and you are solely responsible for verifying the accuracy,
completeness, and applicability of all Content and for your use of any Content. Subject to your
compliance with these Terms, you may access the Content solely for your own personal and internal
business purposes in connection with your own use of the Offerings. You will not, and will not permit
any third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute,
sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) alter, obscure or remove
any copyright, trademark or any other notices that are provided on or in connection with any Content.
Upbeet Brands has not verified the accuracy of, and will not be responsible for any errors or omissions
in, any Content. Without limiting the foregoing, Upbeet Brands will not be held liable to you or any other
third party for any Content (including Your Content) under a Federal Law the Communications Decency
Act or CDA, 47 U.S.C. § 230. Except as set forth in these Terms, you are granted no licenses or rights in or to any Content, or any Intellectual Property Rights therein or related thereto.
5.3 Content Sharing Guidelines.
Upbeet Brands may host message boards, chats, Facebook pages and other public forums through which the Offerings may be provided. These are public forums and any information that you post on the Site or through the Offerings may be seen by anyone with access to the applicable Offering. When posting information, you will exercise good judgment and demonstrate integrity when discussing sensitive topics and will treat others with respect and honesty, be fair and informative, and post only honest and valuable information. You agree that you will not post or engage in rumors or other misinformation or imply that any such misinformation is based in fact. Unless the information in your
post arises directly from your personal experience, references to or sources of any health-related or
medical information you provide must be included in your post.
In addition to the guidelines and prohibited activities described above, when posting information and
media on the Offerings you must not:
(a) Post anything that interferes with or disrupts the Sites or the operation thereof, including files
that contain malicious code, viruses, corrupted files, or any other similar software or programs
that may damage the operation of another’s computer, network or the Sites;
(b) Post statements or materials that are libelous or defame, harass, abuse, stalk, threaten, intimidate
or in any way infringe on the rights of others;
(c) Post statements or materials that are knowingly false or are intended to or may deceive others;
(d) Post statements or materials that violate other contractual or fiduciary rights, duties or
agreements;
(e) Post or upload personal information, pictures, videos or any other media of another person
without their express permission;
(f) Delete or revise any material posted by any other person or entity;
(g) Post statements or materials that are bigoted, hateful, racially offensive, vulgar, obscene,
pornographic, profane, or otherwise objectionable, including language or images that typically
would not be considered socially or professionally responsible or appropriate in person;
(h) Post statements or materials that encourage criminal conduct or that would give rise to civil
liability or otherwise violate any law or regulation in any jurisdiction;
(i) Post statements or materials that in any way harm minors;
(j) Post statements or materials that impersonate any other person or entity, whether actual or
fictitious, including, without limitation, employees and representatives of Upbeet Brands;
(k) Post statements or materials that misrepresent your affiliation with any entity and/or Upbeet
Brands;
(l) Post anything that violates the privacy or publicity rights of any other person, including, without
limitation, posting any personal identifying information of another individual, including, without
limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card
numbers or any trade secrets or information for which you have any obligation of confidentiality;
(m) Post statements or materials that constitute junk mail, spam or unauthorized advertising or
promotional materials, including, without limitation, links to commercial products or services or
any political campaigning;
(n) Post material that in the sole judgment of Upbeet Brands is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site,
or which may expose Upbeet Brands or its users to harm or liability of any nature; or
(o) Post material that infringes, or that may infringe, any patent, trademark, trade secret, copyright
or other intellectual or proprietary right of any party, or that you otherwise do not have the right
to make available, without the express permission of the owner of the copyright, trademark or
other proprietary right. Upbeet Brands does not have any responsibility to provide any user with
indications, markings or anything else that may aid any user in determining whether the material
in question is copyrighted or trademarked. Users shall be solely liable for any damage resulting
from infringements of copyrights, trademarks, proprietary rights or any other harm resulting from
such submission.
Any user failing to comply with these guidelines may be expelled from and refused continued access
to the message boards, chats or any or all portion of the Offerings. We or our designated agents may
remove or alter any user-created content at any time for any reason. Materials posted and/or
uploaded may be subject to size and usage limitations. You are responsible for adhering to such
limitations. Upbeet Brands expressly disclaims all responsibility and endorsement and make no
representation as to the validity of any opinion, advice, information or statement made or displayed
in these forums by third parties, and we will not be responsible for any errors or omissions in such
postings, or for hyperlinks embedded in any messages. Under no circumstances will Upbeet Brands or
our affiliates, suppliers or agents be liable for any loss or damage caused by your and any other
person’s reliance on information obtained through the Offerings. The opinions expressed by users of
the Offerings are solely the opinions of such participants, and do not reflect the opinions of Upbeet
Brands or any of its subsidiaries or affiliates. Upbeet Brands has no obligation whatsoever to monitor
any of the content or postings on the message boards, chat rooms or other public forums. However,
you acknowledge and agree that we reserve the right to monitor the same at our sole discretion.
Unless otherwise stated, any moderators employed by Upbeet Brands are not medical professionals
and should not be construed as such. Our moderators reserve the right to alter, edit, refuse to post or
remove any postings or content, in whole or in part, for any reason and to disclose such materials 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 clients, sponsors,
users and visitors. In addition, Upbeet Brands and its moderators reserve the right to contact users to
inform them of policies, hide users’ posts or delete users’ accounts without warning or notice in
advance, for any reason, including but not limited to the violation of these Terms. By sending or
transmitting to us content, images, video, audio files, creative suggestions, ideas, notes, concepts,
information or other materials (collectively, "Submission Materials"), or by posting such Submission
Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sub-
licenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, modify,
create derivative works of, publicly perform, publicly display, digitally perform, sell, offer for sale and
import such Submission Materials in any media now known or hereafter devised, for any purpose
whatsoever, commercial or otherwise, without compensation to you. The foregoing license to Upbeet
Brands shall be fully paid-up and royalty free. You represent and warrant that any person or entity
named or pictured in such Submission Material has provided any necessary licenses, rights or
authorizations to allow Upbeet Brands’ use of such Submission Materials in accordance with such
license. None of the Submission Materials disclosed or posted via message boards, chats or other
public forums shall be subject to any obligation, whether of confidentiality, attribution or otherwise.
5.4 Third Party Offerings.
Notwithstanding anything to the contrary in these Terms, the Sites may provide you with the option to
obtain access to functionality, products and other things provided by third party providers, including
online cooking courses, meal kit delivery, events, and other products and services (“Third Party
Offerings”). All Third Party Offerings are provided by third parties and Upbeet Brands does not control
any Third Party Offering. Upbeet Brands is not responsible or liable for your access to or use of any Third
Party Offering, including any damages, losses, liabilities, failures, or problems caused by, related to, or
arising from any Third Party Offering. Your use of and access to any Third Party Offering are solely
between you and the third party provider of that Third Party Offering. Your access to and use of any
Third Party Offering is subject to any additional terms, conditions, or agreement provided or entered
into in connection with the Third Party Offering (each, a “Third Party Agreement”). The terms of any
Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third
Party Offerings provided under that Third Party Agreement but will not otherwise apply to your access
to or use of the Offerings. Except as set forth in these Terms, in the event of a conflict between the
terms of these Terms and a Third Party Agreement, the terms of the Third Party Agreement will control
with respect to your access to and use of any Third Party Offering provided under that Third Party
Agreement. These Terms will continue to control in all other respects.
Any opinions, advice, statements, services, advertisements, offers or other information or content
expressed or made available through Third Party Offerings are those of the respective authors or
distributors and not of us. Neither we nor any third-party content providers guarantee the accuracy,
completeness or usefulness of any content. Furthermore, we are not responsible for the accuracy and
reliability of any opinion, advice or statement made by anyone other than an authorized Upbeet Brands
representative while acting in his/her official capacity. You may be exposed through the Offerings to
content that violates our policies or is otherwise offensive. You access the Offerings at your own risk.
We take no responsibility for your exposure to third party content through the Offerings, Third Party
Offerings or otherwise. We do not assume, and expressly disclaims, any liability relating to information
provided on or omitted from the Offerings, Third Party Offerings or otherwise. It is understood and
agreed that we do not advocate or endorse the use of any product or procedure described in the
Offerings, Third Party Offerings or otherwise, nor are we responsible for misuse of a product or
procedure in any manner. You may purchase certain Offerings through third-party providers, subject to
additional agreements you enter into in connection with those Offerings (“Additional Agreements”). Any
Additional Agreement is in addition to these Terms and will govern your access to and use of the
Offerings to which the Additional Agreement applies. In the event of a conflict between these Terms and
the Additional Agreement, the Additional Agreement will control only with respect to those Offerings to
which the Additional Agreement applies and these Terms will control in all other respects. Your
participation, correspondence or business dealings with any third party found on or through our Sites or
Offerings, including, without limitation, advertisers and other users, regarding payment and delivery of
specific goods and services, and any other terms, conditions, representations or warranties associated
with such dealings, are solely between you and such third party. You agree that Upbeet Brands shall not
be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such
dealings.
6. License; Ownership and Use of the Technology.
These Terms provide you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable
license to use the Offerings conditioned on your continued compliance with these Terms. You may print
and download materials and information from the Sites solely for your personal use, provided that all
hard copies contain all copyright markings, metadata and other applicable notices contained in such
materials and information. We and our licensors own all right, title and interest in and to the Sites and
Offerings including all related Intellectual Property Rights. All of our rights not expressly granted by us to
you pursuant to these Terms are retained by us or our licensors.
Upbeet Brands retains all rights, title and interest, including, without limitation, all Intellectual Property
Rights in and relating to the software, data, technology, inventions, and content provided by or on
behalf of Upbeet Brands and used in connection with providing the Offerings, and any additions,
improvements, updates and modifications thereto (the “Technology”). You receive no ownership
interest in or to the Technology and you are not granted any right or license to use the Technology itself,
apart from your ability to access the Sites and Content under these Terms. For purposes of these Terms,
“Intellectual Property Rights” means all intellectual property rights, proprietary rights, rights of publicity,
rights of privacy, and any and all other legal rights protecting data, information or intangible property
throughout the world, including, without limitation, any and all copyrights, trademarks, service marks,
trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
7. Repeat Infringer Policy; Copyright Complaints.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have
adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate
circumstances and in our sole discretion, who infringe the Intellectual Property Rights of others. If you
believe that anything on the Sites infringes any trademark and/or copyright that you own or control, please contact us at support@upbeetbrands.com
Please provide the following information to Upbeet Brands’ Copyright Infringement Agent: (1) the
identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime
phone number, and email address, if available; (3) a statement that You have a good-faith belief that the
use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement
that the information in the notification is accurate and, under penalty of perjury, that You are
authorized to act on behalf of the owner; and (5) Your electronic or physical signature. You acknowledge
that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid.
You should also note that if you knowingly make any material misrepresentation in your notification that
the material or activity is infringing, you will be liable for any damages, including, without limitation,
costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such
misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Trademarks.
“Upbeet Brands,” and any other Upbeet Brands trademarks, service marks, advertising and marketing
materials, designs, names, logos or slogans that may appear on the Offerings are trademarks owned by
Upbeet Brands and its respective Suppliers and may not be copied, imitated or used, in whole or in part,
without our prior written permission. You may not use any metatags or other “hidden text” utilizing
“Upbeet Brands” or any other name, trademark or Product or service name of Upbeet Brands without
our prior written permission. In addition, the look and feel of the Offerings, including, without limitation,
all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or
trade dress of Upbeet Brands and our Suppliers and may not be copied, imitated or used, in whole or in
part, without our prior written permission. All other trademarks, registered trademarks, Product names
and company names or logos mentioned on the Sites or Products are the property of their respective
owners and may not be copied, imitated or used, in whole or in part, without the permission of the
applicable trademark holder.
9. Hyperlinks.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for
noncommercial purposes, provided that such link does not portray Upbeet Brands or any of our
Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that
the linking site does not contain any illegal, pornographic offensive, harassing, or otherwise
objectionable material. We may revoke this right at any time in our sole discretion. You may not use any
Upbeet Brands logo or other proprietary graphic of Upbeet Brands to link to the Sites without our prior
express written permission. Further, you may not use, frame, or utilize framing techniques to enclose
any Upbeet Brands trademark, logo or other proprietary information, including the images found on the
Sites, Content, or Products, the content of any text or the layout or design of any page, or form
contained on a page, on the Sites without our express written consent.
Upbeet Brands makes no claim or representation regarding, and accepts no responsibility for, the
quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of
websites linking to the Sites. Such sites are not under our control and we are not responsible for the
contents of any linked site, any link contained in a linked site, or any review, changes or updates to such
sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply
our affiliation, endorsement or adoption of any site or any information contained therein. When you
leave the Sites, you should be aware that our terms and policies no longer govern. You should review
the applicable terms and policies, including privacy and data gathering practices, of any site to which
you navigate from the Sites.
10. Third Party Content.
We may display content, advertisements and promotions from third parties through the Sites or in
shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any
Third Party Content, and we make no representations or warranties of any kind regarding such Third
Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge
and agree that your interactions with third parties providing Third Party Content are solely between you
and such third parties, and that Upbeet Brands is not responsible or liable in any manner for such
interactions or Third Party Content.
11. User Content & Your Content.
11.1. User Content.
The Sites may include interactive features and areas that allow users to create, post, share or store
content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics,
code, items or other materials (collectively, “User Content”). We are not responsible or liable for any
User Content or for screening, editing or monitoring User Content prior to it being posted. Although we
have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute
discretion, to remove, screen, or edit any User Content, including Your Content, posted or stored on the
Sites at any time and for any reason, and you are solely responsible for creating backup copies of and
replacing Your Content should you choose to post or store it on the Sites, at your sole cost and expense.
11.2 Your Content.
You are solely responsible for all recipes, reviews, photos, videos, music, sound, text, graphics, code,
information, data, and other content that you may provide through the Sites or to Upbeet Brands or
generate through the use of the Offerings (collectively, “Your Content”). In the event you decide to
share Your Content with others through the Sites or third-party platforms, you understand that Your
Content will be viewable by others in accordance with the privacy settings you establish. Upbeet Brands
is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or
back-up any of Your Content.
11.3 Rights in Your Content.
As between you and Upbeet Brands, you retain ownership of Your Content. However, in addition to any
other rights granted to Upbeet Brands under these Terms, by providing Your Content through the
Offerings or to our pages or feeds on third party social media platforms (e.g., Upbeet Brands website,
Facebook page, Instagram page or Twitter feed), you grant Upbeet Brands a perpetual, irrevocable,
nonexclusive, royalty-free, transferrable, sublicensable right and license to use, copy, store, reproduce,
modify, display, adapt, publish, translate, create derivative works from, distribute, perform, and display
Your Content, in whole or in part, and your name, likeness, voice and persona in any manner or media
and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity,
promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial
purposes.
By uploading, posting or submitting Your Content to Upbeet Brands through the Sites or through our
pages or feeds on third party social media platforms, you represent and warrant that (a) Your Content is
non-confidential, (b) you own and control all of the rights to Your Content or you otherwise have all
necessary rights to post Your Content, and (c) you authorize Upbeet Brands to use Your Content for the
purposes described in these Terms. Upbeet Brands uses reasonable means to protect the security of the
Sites, but you acknowledge that perfect security on the internet is impossible and that, as a result, Your
Content may be exposed in the event of a breach.
11.4 Submissions.
In addition to Your Content, you may submit questions, comments, suggestions, ideas, original or
creative materials or other information about Upbeet Brands, the Offerings, or any suggested
improvements thereto (collectively, “Submissions”). You agree that any Submissions you provide us will
be the exclusive property of Upbeet Brands. To the extent you own any rights in any Submissions, you
agree to assign and hereby do assign to us all right, title and interest in and to the Submissions. You
agree to perform all acts reasonably requested by us to perfect and enforce such rights. We will
reimburse you for direct out of pocket costs incurred in complying with our requests.
11.5. Indemnification.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless
Upbeet Brands, its affiliates, and its and their respective past, present and future employees, officers,
directors, contractors, consultants, equity holders, Suppliers, vendors, service providers, agents,
representatives, predecessors, successors and assigns (individually and collectively, the “Upbeet Brands
Parties”), from and against all actual or alleged Upbeet Brands Party or third party claims, damages,
awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without
limitation, reasonable expert fees and attorneys’ fees and expenses) and costs (including, without
limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of
every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or
unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise
(collectively, “Claims”), arising out of or that are related to (a) your use or misuse of any Offerings,
(b) Your Content, (c) any Submissions you provide, (d) your violation of these Terms, (e) your violation of
the rights of another, including the infringement or misappropriation of any Intellectual Property Rights,
and (f) any third party’s use or misuse of the Offerings through your Account. You agree to promptly
notify Upbeet Brands of any third-party Claims and cooperate with the Upbeet Brands Parties in
defending such Claims. You further agree that the Upbeet Brands Parties shall have control of the
defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any
other indemnities or remedies Upbeet Brands may have available to it through other agreements or by
operation of law.
12. Disclaimers.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION,
STORAGE, COOKING, USE, AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND
VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING, OR
CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION, AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES AND ON PRODUCT PACKAGING, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION, OR ANY CONTENT ON THE SITES, AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, INAN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY. UPBEET BRANDS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE OFFERINGS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UPBEET BRANDS, ITS EMPLOYEES, PROVIDERS, AGENTS, OR THE OFFERINGS, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES.
Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or
all of the disclaimers in this Section 12 may not apply to you.
13. Limitation of Liability; Release.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UPBEET BRANDS OR ANY OF THE OTHER UPBEET BRANDS PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO,LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE OFFERINGS, INCLUDING THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY CONTENT OR INFORMATION OBTAINED FROM UPBEET BRANDS, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM
AGGREGATE LIABILITY OF UPBEET BRANDS AND THE OTHER UPBEET BRANDS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OR THE OFFERINGS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID TO UPBEET BRANDS FOR THE OFFERINGS IN THE PRECEDING THREE (3) MONTHS OR (B) TWO HUNDRED FIFTY DOLLARS ($250). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE UPBEET BRANDS AND THE OTHER UPBEET BRANDS PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of
liability for incidental or consequential damages. Accordingly, some of the above limitations and
disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim
any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our
liability will be the minimum permitted under such applicable law.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so
the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or
limitations of liability for personal injury from consumer products, so this limitation may not apply to
personal injury claims.
14. Modifications to the Sites and Products.
We reserve the right in our sole discretion to modify, suspend, discontinue, or stop providing access to,
temporarily or permanently, any Offerings (or any features or parts thereof) at any time and without
obligation or liability to you. Any modifications will be effective upon posting to the Sites or notice
pursuant to these Terms. You may cease using the Offerings at any time if you do not agree to any
modification. However, you will be deemed to have agreed to any and all modifications through your
continued use of the Offerings following such notice or posting to the Sites.
15. Dispute Resolution; Arbitration.
15.1. Covered Dispute Matters.
You and Upbeet Brands agree that any dispute that has arisen or may arise between us relating in any
way to your use of or access to the Offerings, any validity, interpretation, breach, enforcement, or
termination of these Terms, or otherwise relating to Upbeet Brands or the Upbeet Brands Parties in any
way (collectively, “Covered Dispute Matters”) will be resolved in accordance with the provisions set
forth in this Section 15.
15.2 Applicable Law.
You and we agree that United States federal law including the Federal Arbitration Act, and (to the extent
not inconsistent with or pre-empted by federal law) the laws of the State of California, without regard to
conflict of laws principles, will govern all Covered Dispute Matters. Such body of law will apply
regardless of your residence or the location of where you use the Offerings.
15.3 OUR ARBITRATION AGREEMENT.
You and we agree that any dispute between us regarding this Agreement or the Offerings shall be
submitted to binding arbitration administered by the American Arbitration Association (“AAA”) in
accordance with its Supplementary Procedures for Consumer-Related Disputes (including utilizing desk,
phone or video conference proceedings where appropriate and permitted to mitigate costs of travel).
The arbitration shall take place in Los Angeles County, California unless you and we agree to another
location. You and we agree that the arbitrator shall not conduct any form of class or collective
arbitration nor join or consolidate claims by or for individuals. You and we agree that the arbitrator, and
not any federal, international, state, or local court or agency, shall have exclusive authority to resolve
any dispute relating to the interpretation, applicability, enforceability or formation of these Terms,
including any claim that all or any part of these Terms are void or voidable or a particular claim is subject
to arbitration. You and we agree that judgment on the award rendered by the arbitrator may be entered
in any court of competent jurisdiction. The arbitrator’s decision will include a reasoned opinion setting
forth the essential findings and conclusions upon which the arbitrator based the award. The arbitrator
will decide the substance of all claims in accordance with applicable law, including recognized principles
of equity, and will honor all claims of privilege recognized by law. You and we agree that the arbitrator’s
award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. Nothing in this provision, however, shall bar or restrict either
party from seeking injunctive or equitable relief in a court of competent jurisdiction.
15.4 WAIVER OF CLASS ACTION, COURT HEARING AND JURY
BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE (a) TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE), (b) TO SERVE AS REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES, AND (c) TO A TRIAL BY JURY EVEN IF ANY ARBITRATION IS NOT REQUIRED UNDER THESE TERMS.
15.5 LIMITATIONS PERIOD FOR YOUR CLAIMS.
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE OFFERINGS OR THESE TERMS MUST BE FILED WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED
16. Termination
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole
discretion, to suspend or terminate your right to access or use the Sites and to order, receive and use
the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have
no liability or obligation to you in such event and that you will not be entitled to a refund of any
amounts that you have already paid to us, to the fullest extent permitted by applicable law.
17. International Users.
The Sites and Offerings are intended for visitors located within the United States. We make no representation that the Sites or Offerings are appropriate or available for use outside of the United
States. Access to the Sites and Offerings from countries or territories or by individuals where such access is illegal is strictly prohibited.
18. Survival.
The following sections will survive the expiration or termination of these Terms and the termination of your Upbeet Brands account: all defined terms and Sections 1, 3, 4, 6, 8, 9 (second paragraph only), and 10 through 24.
19. Severability.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or
provision will be severable from these Terms and will not affect the validity or enforceability of any
remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
20. Export Compliance.
The Offerings may be subject to export laws and regulations of the United States and other jurisdictions.
You represent that you are not named on any U.S. government denied-party list. You shall not use the
Offerings in violation of any U.S. export law or regulation.
21. Force Majeure.
Neither party shall be liable under these Terms by reason of any failure or delay in the performance of
its obligations here under on account of strikes, shortages, riots, insurrection, fires, flood, storm,
explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, pandemic, or any other cause beyond the reasonable control of such Party; provided, that: (i) the party
affected by such force majeure event, as soon as reasonably practicable after obtaining knowledge of
the occurrence of such event, gives the other prompt notice describing the event; (ii) the suspension of
or extension of time for performance is of no greater scope and of no longer duration than is required
by the force majeure event; and (iii) the party affected by such force majeure event uses all reasonable
efforts to mitigate or remedy its inability to perform as soon as reasonably possible
22. Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the
Complaint Assistance Unit of the Division of Consumer Services of the California Department of
Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by
telephone at (800) 952-5210 in order to resolve a complaint regarding the Offerings or to receive further
information regarding use of the Offerings.
23. Assignment.
You may not assign your rights and obligations under this Agreement to any person or entity without
our prior written consent. Upbeet Brands may assign, sublicense or subcontract its rights and
obligations under this Agreement at any time for any purpose. We may perform any of our obligations
or exercise any of our rights under these Terms through one or more of our corporate affiliates
(including any entity that directly or indirectly controls, is controlled by or is under common control with
us). If Upbeet Brands, its equity or its assets are acquired by another entity, that entity will assume our
rights and obligations as described in these Terms.
24. Miscellaneous.
These Terms and our Privacy Statement constitute the entire agreement between you and Upbeet
Brands relating to your access to and use of the Offerings, including your order, receipt and use of
Products. No terms or conditions in you purchase order, or other online or clickthrough terms provided
by you, or any other order documentation provided by you will be incorporated into or form any part of
these Terms, and all such terms or conditions will be null and void. Except as set forth herein, these
Terms may only be amended, changed or modified in a written record sufficiently acknowledged and
signed by the authorized representatives of both parties. No waiver of any provision of these Terms will
constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Upbeet
Brands’ failure to assert any right or provision under these Terms shall not constitute a waiver of such
right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit
of the parties and are not intended to confer third party beneficiary rights upon any other person or
entity. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in
each case, “without limitation.” The parties hereto are independent parties, not agents, employees or
employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or
enter into any obligation on behalf of the other.