Nutritional Growth Solutions
TERMS OF USE
These Terms of Use, together with the payment and shipping terms presented at the time of your purchase are a legally binding agreement (“Agreement”) by and between Nutritional Growth Solutions, Inc (“Seller” or “NGS”), a Delaware corporation with a place of business at 7040 Avenida Encinas, Suite 104-854, Carlsbad, CA 92011 and you (an individual located in the United States, who is at least 18 years old, who uses the NGS online service to purchase products or otherwise interact with an online NGS account or service “You” or “Buyer”). This Agreement is effective as of the date you digitally accept these Terms of Use by using our online services or website, creating an NGS account, or by placing an order.
PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING OUR WEBSITE OR OTHER ONLINE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT OR ARE UNABLE TO AGREE TO ALL OF THESE TERMS, PLEASE DO NOT USE ANY OF OUR ONLINE SERVICES OR WEBSITES, INCLUDING WITHOUT LIMITATION Healthy-Height.com (collectively, the “Site”).
NGS reserves the right to change or modify this Agreement and/or any policy or guideline of the Site at any time in its sole discretion. Any changes or modifications will be effective immediately upon posting of the revisions on the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Site Terms and applicable policies on the Site to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, please do not use the Site.
If you have any questions about the use of the Site, please send them to info@healthyheights.com
Site Contents.
Unless otherwise noted, the design of the Site, the Site as a whole, and all materials that are part of the Site (collectively, 'Contents') are protected by copyrights, trademarks, trade dress and other intellectual properties owned, controlled or licensed by NGS or its subsidiaries and affiliates. NGS makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of (a) third-party content that may be displayed via a feed; (b) websites accessible by hyperlink from the Site, or (c) websites linking to the Site. Such sites are not under the control of NGS, and NGS is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. NGS provides feeds or links from the Site to third-party websites only as a convenience, and the inclusion of any feed or link does not imply affiliation, endorsement or adoption by NGS of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. Please review the applicable terms and policies (including, for example, the privacy policy) of any third-party website that you link to from the Site before you use such third-party site.
User and third party content.
Some areas of the Site may include discussion forums, user reviews, or other interactive areas or community features ("Interactive Areas") in which you or other users create, post or store content, comments, messages, statements, slogans, materials, data, information, text, music, sound, photographs, video, graphics, code or other items or materials on the Site ("User Content"). You are solely responsible for your use of such Interactive Areas and for the User Content you post. By using the Site, including without limitation any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, vulgar, sexually explicit, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that includes or incorporates any identifiable reference to any third-party person or entity (including, without limitation, names, nicknames, trade names, brands, slogans, trademarks, logos, images, drawings, photographs, videos, or likenesses (visual, aural, or otherwise)) without such third-party person or entity's written permission;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, rule or regulation;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to display, distribute and reproduce such User Content and to grant NGS the rights granted in these Site Terms;
- User Content that displays, describes or encourages usage of any NGS products in a manner that could be offensive, inappropriate or harmful to NGS or any user or consumer;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files; and/or
- User Content that, in the sole judgment of NGS, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Site, or which may expose NGS or its users to any harm or liability of any type.
NGS takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is NGS liable for any mistakes, defamation, slander, libel, omissions, falsehoods, deceptive practices, obscenity, pornography, sexually explicit material, profanity or other harmful material you may encounter. YOUR USE OF ANY USER CONTENT AND INTERACTIVE AREAS IS AT YOUR OWN RISK. As a provider of interactive services, NGS is not liable for any statements, representations or User Content provided by its users. Although NGS has no obligation to screen, edit or monitor any of the Content posted in any Interactive Area, NGS reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense. Except as otherwise provided herein, on the Site or in a separate agreement NGS claims no ownership or control over any User Content. However, by submitting or posting User Content on the Site, you grant NGS and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content on the Site and on third-party sites.
SMS/MMS Mobile Message Marketing Program Terms and Conditions
Nutritional Growth Solutions, Inc (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts. You also agree to the use of electronic records to manage your acceptance and consent to the SMS/MMS Mobile Messaging Marketing Program and to your receipt of marketing text messages. You can decline the use of electronic records to manage your acceptance and consent, by contacting us at info@healthy-height.com. In that case we will also withdraw your consent to the SMS/MMS Mobile Messaging Marketing Program, and we will no longer send marketing text messages to you.To access and keep the electronic record of your acceptance and consent to the SMS/MMS Mobile Messaging Marketing Program, you need a device with internet access and storage space, such as a smartphone or personal computer. To access and retain the electronic record of your acceptance and consent, contact us at info@healthyheights.com. You can have the electronic record of your acceptance and consent provided in non-electronic form at no cost by contacting us at info@healthyheights.com.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of nutritional products.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at info@healthyheights.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and 317 LABS, INC. or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Encinitas, CA before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Nutritional Growth Solution’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
Trademarks.
NGS, the NGS logo, HealthyHeight, the HealthyHeight logo, and any other product or service name or slogan contained in the Site are trademarks of NGS and may not be copied, imitated or used, in whole or in part, without the prior written permission of NGS. You may not use any metatags or any other "hidden text" utilizing "Nutritional Growth Solutions", “Healthy Height” or any other name, trademark or product or service name of Nutritional Growth Solutions without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of NGS 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 in the Site are the property of their respective owners. Reference to any third-party products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by NGS.
ACCEPTANCE
By selecting products for purchase, Buyer hereby offers to purchase from Seller the products and/or services (such as recurring subscription services for monthly purchase of Products) described in the online purchase interface (respectively, “Products” and “Services”) subject to these terms and conditions. Acceptance of this offer may only be made by Buyer, in its sole discretion. If the offer is accepted, these Terms of Use, together with information contained in the online purchase interface you accept (the “Purchase Order”) and the Privacy Policy shall constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase of Seller's Products or Services, superseding all prior oral or written understandings relating thereto and shall not be modified or interpreted by reference to any prior course of dealing, usage of trade or course of performance.
PRICES
Unless otherwise expressly approved in writing by Buyer, prices for all Products and Services are as noted in the online purchase interface and may not be changed without the prior written consent of both parties. Buyer shall also be obligated to pay any and all properly assessed taxes, duties, or other fee imposed by a governmental authority in connection with each Purchase Order.
TERMS OF PAYMENT
Buyer shall pay all amounts due for Products or Services purchased hereunder at the time of purchase, via credit card, to be processed by a third party payment processor acting as Seller’s agent. By submitting your credit card for payment, you expressly agree and understand that your credit card information will be processed by our designated third party agent, who shall be solely liable for all compliance with laws regarding payment processing. Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our discretion, other method. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize our third party payment processor to charge your order (including taxes, shipping, handling and any other amounts described on the Site) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. Regarding "Your Account," you agree to keep all payment cards or other payment method information current and that we may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem we encounter in order to proceed with your order. Recurring purchase orders will be submitted for payment processing on the credit card or other payment method of file for each Buyer on the schedule set forth in the recurring payment schedule.
SHIPPING AND DELIVERY
When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Site when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges before placing an order or signing up for a service. Generally, shipping is by standard ground delivery. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Site are estimates only - actual delivery dates may vary. You agree that you will not obtain or direct shipment of product for export. Product availability on our Site is not guaranteed as it may be low in stock. If the ordered Products are not available by the time your order processes, we will notify you of this via e-mail. You can always verify availability by contacting NGS Customer Service at info@healthyheights.com. You will receive a shipping confirmation e-mail once your items have shipped.
WARRANTIES AND REPRESENTATIONS; LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THIS SITE, ALL CONTENTS AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN 'AS IS' BASIS. NGS DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. NGS DOES NOT WARRANT THAT YOUR USE OF THIS SITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS SITE OR ITS SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS. ALTHOUGH NGS ENDEAVORS TO PROVIDE ACCURATE INFORMATION, IT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY OR RELIABILITY OF INFORMATION ON THIS SITE. YOUR USE OF THE SITE IS AT YOUR OWN RISK. NEITHER NGS NOR ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS OR CONTENT PROVIDERS SHALL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT OR INDIRECT LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHERWISE), INJURY, CLAIM, OR LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER BASED UPON OR RESULTING FROM YOUR USE OR INABILITY TO USE THIS SITE, OR ANY INFORMATION OR MATERIALS PROVIDED ON THE SITE. NGS IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY MATERIALS ON THE SITE, PRODUCTS, OR WITH ANY OF NGS’s TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS NGS, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DISTRIBUTORS, VENDORS AND AFFILIATES FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, LIABILITIES, COSTS OR EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING OR ARISING OUT OF YOUR BREACH OF ANY OF THESE TERMS OF USE.
Governing Law.
This Purchase Order and the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement or any purchase or sale made hereunder.
miscellaneous.
The invalidity, illegality or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition, and, to the extent possible, such invalid, illegal or unenforceable provision shall be replaced by a provision most nearly reflecting the fundamental objectives of the original provision. Each individual Purchase Order may not be amended except by written agreement of Seller and Buyer expressly referring hereto. Notwithstanding any provision hereof, for all purposes of this Purchase Order each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract.
ASSIGNMENT.
Buyer’s rights and obligations hereunder may not be assigned or otherwise transferred without Seller’s express prior written permission. Seller may assign its rights and obligations hereunder to any successor in interest to all or substantially all of its assets or business to which this Purchase Order relates.
PRIVACY.
All information obtained by Seller from Buyer or learned by Seller in connection with this Purchase Order or performance hereunder shall governed by Seller’s privacy policy, which is hereby incorporated by reference.