1. NUTRISCAPE.NET is a Marketplace
(a) NUTRISCAPE.NET acts as a web-based marketplace/venue that allows users, who comply with NUTRISCAPE.NET’s policies to offer, sell and buy certain nutrition focused materials within a fixed-price format (“Nutrition Content”). A user who is selling Nutrition Content is a “vendor” and a user who is buying Nutrition Content is a “customer.” A user may act as both a vendor and customer. NUTRISCAPE.NET is not the seller of record for any Nutrition Content. NUTRISCAPE.NET acts as an intermediary, that facilitates transactions between customers and vendors. As a result, NUTRISCAPE.NET has limited control over the quality, safety, and legality of any aspect of the Nutrition Content listed, the truth or accuracy of the listings, the ability of vendors to sell Nutrition Content or the ability of customers to pay for Nutrition Content. NUTRISCAPE.NET does not pre-screen users, the Nutrition Content, or the content or information provided by users. NUTRISCAPE.NET cannot ensure that a customer or vendor will actually complete a transaction. NUTRISCAPE.NET does not transfer legal ownership of Nutrition Content from the vendor to the customer. NUTRISCAPE.NET cannot guarantee the true identity, age, and/or nationality of a user.
(b) In order to sell Nutrition Content on the Site, a vendor must be registered with a vendor account on the NutriScape.NET Site.
(c) In order to sell Nutrition Content on the Site, vendor must be a registered Dietitian or Dietetic technician or the equivalent/applicable licensure or certification. By registering an account and listing Nutrition Content on the Site and becoming a vendor, vendor is representing and warranting that vendor is a registered Dietitian or Dietetic technician (or equivalent) with all appropriate licensure, education, experience, and/or certifications and further that user is in good standing with vendor’s licensing board, institution, ethical board, state or municipal laws, as applicable.
(d) NUTRISCAPE.NET is not a licensed medical care provider or nutritionist. NUTRISCAPE.NET does not verify any health claims made by vendors, or any third parties with regards to any of the Nutrition Content sold on the Site. NUTRISCAPE.NET cannot and does not verify any vendor’s licensure, registration numbers, certifications, education, experience, or any other qualifications. It is the user’s responsibility to communicate with the vendor and determine the vendor’s qualifications to the customer’s satisfaction. Not all Nutrition Content sold on this Site are suitable for everyone, every age, or every situation or set of circumstances. NUTRISCAPE.NET is not responsible for any health problems, injuries, allergies, reactions, negative results, misinformation, damages, liabilities, harm, or otherwise that may result from the purchase of Nutrition Content on the Site or reliance on any Content available on the Site. Customer represents that customer has selected the Nutrition Content, using customer’s own knowledge and judgment. If you purchase Nutrition Content through the Site you agree that you do so at your own risk.
(e) You agree that NUTRISCAPE.NET is a marketplace/venue only and therefore is not responsible or liable for any content including, but not limited to, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, Nutrition Content, and links posted by you, other users, or outside parties on NUTRISCAPE.NET.
(f) NUTRISCAPE.NET does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside NUTRISCAPE.NET’s control. You use the NUTRISCAPE.NET service at your own risk. (g) NUTRISCAPE.NET does not guarantee continuous access to any Nutrition Content. For example, if at any time, NUTRISCAPE.NET stops hosting licensed Nutrition Content for any reason or you or NUTRISCAPE.NET terminates, suspends, downgrades, or otherwise limits your Account or access to NUTRISCAPE.NET’s services, your ability to access the Nutrition Content through our Site may be terminated. It is your responsibility to maintain and store a copy of your licensed Nutrition Content to ensure future access. If you purchase access to Nutrition Content in the format of streaming video or other non-downloadable formats, your access will cease if you or NUTRISCAPE.NET close your account, or if NUTRISCAPE.NET removes stops hosting the Nutrition Content for any reason.
2. Account Registration
(a) NUTRISCAPE.NET’s services include the buying and selling of goods. Therefore, NUTRISCAPE.NET’s services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old. Individuals under the age of 18 must at all times use NUTRISCAPE.NET’s services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In such cases, the adult is the user and is responsible for any and all activities and transactions that involve the applicable minor on the Site.
(b) You represent and warrant that all registration information you submit is accurate and truthful. NUTRISCAPE.NET may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions.
(c) In addition, you must abide by all NUTRISCAPE.NET’s policies mentioned in this Agreement as well as all other operating rules, policies and procedures that may be published from time to time on the Site by NUTRISCAPE.NET (if applicable to your activities on or use of the Site), each of which is incorporated herein by reference and each of which may be updated by NUTRISCAPE.NET from time to time without notice to you. In addition, some services offered through the Site may be subject to additional terms and conditions promulgated by NUTRISCAPE.NET from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
(d) To complete your registration, you will provide your full legal name, email address, Commission on Dietetic Registration number, zip code, and create a password. You are responsible for maintaining the confidentiality of your password and account. You may optionally provide a picture, birthdate, and gender. If you plan to sell Nutrition Content you will provide information and/or representations regarding your professional standing, licensure, and experience. You are fully responsible for all activities that occur under your password or account. You are further responsible for any and all liability and/or damage resulting from your failure to maintain password confidentiality. It is important for you to protect against unauthorized access to your computer. Be sure to log off when you finish using a shared computer. You agree to immediately notify NUTRISCAPE.NET of any unauthorized use of your password or any breach of security. You also agree that NUTRISCAPE.NET cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than NUTRISCAPE.NET without NUTRISCAPE.NET’s express written permission.
(f) You may not transfer or sell your NUTRISCAPE.NET account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
(g) NUTRISCAPE.NET’s services are not available to cancelled NUTRISCAPE.NET users. NUTRISCAPE.NET reserves the right, in NUTRISCAPE.NET’s sole discretion, to cancel unconfirmed, active or inactive accounts. NUTRISCAPE.NET reserves the right to refuse service to anyone, for any reason, at any time.
(h) You may find some content, including Nutritional Content, on the Site to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using NUTRISCAPE.NET, you agree to accept such risks and that NUTRISCAPE.NET (and NUTRISCAPE.NET’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on NUTRISCAPE.NET. Please use caution, common sense, and practice safe buying and selling practices when using NUTRISCAPE.NET.
(i) You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any NUTRISCAPE.NET service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of Nutrition Content. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of Nutrition Content you make on the Site (excluding any taxes on NUTRISCAPE.NET’s net income).
3. NUTRISCAPE.NET Vendors
(b) Your ability to access and use your Vendor Account commences on the date NUTRISCAPE.NET makes the Vendor Account available to you following your registration and verification of your RD credentials with Commission on Dietetic Registration. NUTRISCAPE.NET will automatically continue your vendor account unless you cancel your Vendor Account as provided below.
(c) Your Vendor Account may be closed by NutriScape after a period of one year past the date the last sale from your vendor account.
(d) You may cancel your Vendor Account at any time.
(e) NUTRISCAPE.NET reserves the right to modify, offer additional, or cease offering its Vendor Account(s) at any time in its sole discretion, including but not limited to modifying the features and functionality of the Site.
4. Listing and Selling Nutrition Content
(a) All listings on NUTRISCAPE.NET must be for sale. All Nutrition Content must be available for sale via a digital download on NUTRISCAPE.NET. By listing Nutrition Content on the Site you warrant that you have the legal right and are authorized to sell and/or distribute such Nutrition Content and sell and/or distribute such Nutrition Content via the Site. You warrant you, your method of sale, and all aspects of the Nutrition Content comply with NUTRISCAPE.NET’s policies. You must accurately describe your Nutrition Content and all terms of sale in your NUTRISCAPE.NET listing. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that Nutrition Content. All Nutrition Content must be listed in an appropriate category with appropriate tags as provided by NUTRISCAPE.NET. Each listing must accurately and completely describe the Nutrition Content for sale in that listing. Each unique piece of Nutrition Content must have its own listing. You represent and warrant that for each Nutrition Content listing, the full and complete Nutrition Content advertised will be contained in the downloadable version of such Nutrition Content you make available on the Site or otherwise through your specified method of delivery and no part of such Nutrition Content will be delivered separately, or require any additional purchase or third party channel or website.
(b) All vendors listings must include either a link to NutriScape.Net’s policies for the sale of their Nutrition Content, or must list the Vendor’s own specific sales policy. These policies may include, for example, refunds, payment and selling policies. All vendor policies must comply with NUTRISCAPE.NET’s Site-wide policy regarding Content Licensing (below). Vendors are responsible for complying with NutriScape.NET’s sales policies. (c) Vendors are responsible for accurately listing and describing their Nutrition Content. All sales are binding. The vendor is obligated to provide the Nutrition Content in the form advertised.
(d) The price stated in each Nutrition Content listing description must be an accurate representation of the sale price. Vendors may not attempt to avoid NUTRISCAPE.NET transaction fees. Vendors may not alter the Nutrition Content’s price after a sale, misrepresent the Nutrition Content’s location or accessibility, or use another user’s account without permission.
(e) Vendors understand and acknowledge that NUTRISCAPE.NET may remove, suspend access to, or archive any Nutrition Content, for any reason or no reason, without notice to Vendor.
(f) NUTRISCAPE.NET will begin archiving Nutrition Content that has not sold for a period of one year from the initial listing date. Such Nutrition Content will be moved to your Vendor Dashboard in draft form. You will have access to archived Nutrition Content, but the Nutrition Content will not be visible to other users of the Site.
5. Nutrition Content Licensing Policy
(a) All vendors own and maintain the intellectual property rights in their Nutrition Content and grant to customer a limited license for such Nutrition Content as described in this section. When a customer purchases Nutrition Content, customer is purchasing a license to use the Nutrition Content in accordance with the terms of this Nutrition Content Licensing Policy (“Licensing Policy”). All Nutrition Content on the Site, may only be used in accordance with this Licensing Policy. Your use of any Nutrition Content, whether the license is purchased by you, or purchased on your behalf by a third party, but in your name, is subject to this Policy and other terms set forth in these Terms. You agree to comply with the terms of this Policy as well as any additional terms the Licensor provides in its Nutrition Content Listing, to the extent that such terms do not conflict with this Licensing Policy.
(b) License: Each vendor grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty-free license to use the Nutrition Content owned or licensed by vendor, which does not require any additional payment by customer of any royalties or additional license fees or require any additional consent by any third party, solely in connection with customer’s Personal Use (as hereinafter defined). Customer agrees that it shall not use the Nutrition Content for any other purpose, including, without limitation, selling, commercializing, altering, amending, making derivative works of, modifying, sublicensing, gifting, making unauthorized copies of, or otherwise utilizing the Nutrition Content. Pursuant to this Licensing Policy, Customer may:
1. Use the Nutrition Content for personal, educational, and instructional use only (“Personal Use”). This means you can use Nutrition Content for your own informational purposes, for your individual study, and to teach your clients, patients or students.
2. Print and make copies of the Nutrition Content as necessary for Personal Use, but not for sale or distribution to third parties, provided that customer does not remove any copyright notices, branding, or authorship information from the Nutrition Content. Pursuant to this Licensing Policy, Customer may not:
i. Sell or commercialize any Nutrition Content. This means that, you may not sell copies, include Nutrition Content in any published work, use the Nutrition Content for advertising or marketing purposes, or generate revenue, in any way, either directly, or indirectly from such Nutrition Content
ii. Post or otherwise make the Nutrition Content available on any website.
iii. Distribute or otherwise provide Nutrition Content to colleagues, post online, or otherwise make available to third parties.
iv. Transfer, gift, or assign the Nutrition Content to any third party.
6. Purchasing Nutrition Content
(a) Customer is responsible for paying all fees and applicable taxes associated with using NUTRISCAPE.NET. Customers are responsible for reading the description of the Nutrition Content before making a purchase. NUTRISCAPE.NET does not endorse, vet, or take responsibility for any Nutrition Content or vendor on the Site and has no liability to customer. Upon placing your order, you acknowledge that NUTRISCAPE.NET may, but is not obligated to, review your order, and the content it contains, for adherence to our guidelines and compliance with the terms and conditions set forth in this Agreement. Customer is obligated to deliver the appropriate payment for Nutrition Content purchased. Any disputes regarding a purchase of Nutrition Content, shall be resolved between the customer and the vendor.
(b) Your purchase of any Nutrition Content is subject to the license rights specified in the NUTRISCAPE.NET Nutrition Content Licensing Policy. You agree not to violate the terms of such license and further that purchase of the Nutrition Content does not provide you with any license to copy, distribute, provide to friends, family, colleagues, post online, or otherwise make available to third parties, the Nutrition Content.
(c) Upon purchase of Nutrition Content, downloadable via the Site, customer will have the ability to download such Nutrition Content from customer’s Dashboard on the Site for as long as such materials are available through the Site. Your access to such Nutrition Content may cease due to removal of the Nutrition Content by the vendor or by NUTRISCAPE.NET. NUTRISCAPE.NET cannot restore access to, or provide copies of, purchased Nutrition Content that has been removed from our Site.
(d) Upon purchase of Nutrition Content, which is available via streaming on the Site, customer will have the ability to view such Nutrition Content from customer’s Dashboard, or other designated access point/link, on the Site for as long as such materials are available through the Site. Your access to such Nutrition Content may cease due to removal of the Nutrition Content by the vendor, by NUTRISCAPE.NET, or by the termination of the Vendor Account. NUTRISCAPE.NET cannot restore access to, or provide copies of, purchased Nutrition Content that has been removed from our Site.
(e) All sales of Nutrition Content are final. No refunds are available. You agree to notify NUTRISCAPE.NET and the vendor promptly, and in no event later than ten (10) days from the purchase date of any digital Nutrition Content, of any defect or deficiency. Vendor may elect to replace such deficient Nutrition Content or, with the assistance of NutriScape, issue a refund to the customer, in the vendor’s and NutriScape’s discretion.
7. Transaction Fees for the Sale of Nutrition Content
(a) If you create a Vendor Account through the Site, you will be subject to the terms of such Vendor Accounts in this Agreement.
(b) NUTRISCAPE.NET charges 50% percent of the sale price when the Nutrition Content sells as described in this Section (“Transaction Fees”). When you make a sale through the Site, you will be charged a Transaction Fee of 50% of the price you display for each individual Nutrition Content product sold.
(c) For each sale of Nutrition Content on the Site, NUTRISCAPE.NET will automatically deduct the 50% Transaction Fee from the sale price collected from the customer, and will distribute the remaining purchase price to the vendor on a monthly basis as follows:
(a) NUTRISCAPE.NET will collect payment from customer at the time Nutrition Content is purchased through the Site,
(b) NUTRISCAPE.NET will notify vendor by email of the sale once payment has been collected from the customer, and
(c) on a monthly basis NUTRISCAPE.NET will distribute to the vendor the total revenue generated by vendor through the Site, minus the credit card Transaction Fees, during each calendar month within thirty (30) days of the last day of each calendar month, provided vendor is in compliance with this Agreement. In the event that you breach this Agreement, NUTRISCAPE.NET reserves the right, in its sole discretion, to withhold any payments that would otherwise be due to you under this Agreement.
(d) Vendor is responsible for paying all applicable taxes associated with using NUTRISCAPE.NET. NUTRISCAPE.NET uses Paypal for its Merchant Services processing for vendors. Vendor must set up an account with Paypal in order to receive payment from NUTRISCAPE.NET. NutriScape makes no representations or warranties regarding Paypal’s services and NUTRISCAPE.NET is not liable for any delay, error, fault, or action of Paypal. Paypal may charge additional transaction or service fees to the vendor.
(e) If you have a question or wish to dispute a charge, contact NUTRISCAPE.NET at downloads@NutriScape.NET.
8. Prohibited, Questionable and Infringing Nutrition Content and Activities
(a) You are solely responsible for your conduct and activities on and regarding NUTRISCAPE.NET and any and all data, text, information, reviews, posts, usernames, graphics, images, photographs, profiles, audio, video, Nutrition Content, and links (together, “Content”) that you submit, post, and display on NUTRISCAPE.NET.
(b) You hereby represent and warrant that your Content and your use of NUTRISCAPE.NET shall not:
1. Upload, download, post, email or otherwise transmit any Content in a fraudulent manner/for the purposes of committing a fraud, list for sale, or sell any fraudulent, illegal, counterfeit, or stolen Nutrition Content.
2. Upload, download, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, trade libelous, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another’s rights including but not limited to rights of celebrity, privacy and intellectual property.
3. Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
4. Upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party.
(a) As a guideline, you may contribute only original work that you have created yourself from original elements. This means you can’t use images of celebrities or corporate products, nor images, text, or designs that you’ve copied from a website without written permission from the owner. You cannot create a “new” image using elements from images other people have created. You cannot contribute a quote or a slogan that is substantially the same as something already written by someone else. By uploading any Content, you represent and warrant that you have the lawful right to reproduce and distribute such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances.
5. Upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law.
6. Use the service or the Site to harm minors in any way, including, but not limited to, uploading Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct, or upload Content that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children.
7. Upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation.
8. Upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
9. Upload, download, post, email or otherwise transmit false, inaccurate, or misleading information.
10. Disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, third party sites, vendor’s or customer’s sites, or networks connected to or accessible through the Site or affiliated or linked websites.
11. Access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.
12. Disrupt or interfere with any other user’s enjoyment of the Site or linked websites.
13. Frame the Site within another Site or webpage or link to the Site except as permitted in writing by NUTRISCAPE.NET or Host images not part of a listing.
14. Incorporate images or names that would violate a person’s right of privacy or publicity; or incorporate a current or former leader, politician, religious figure, convicted criminal or notorious person, or other famous person’s name or likeness without their express written consent.
15. Use a manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the service or Site.
16. Copy, modify or distribute rights or Content from the Site, service or tools or NUTRISCAPE.NET’s copyrights and trademarks.
17. Harvest or otherwise collect information about users, including email addresses, without their consent.
18. Violate this Agreement, NUTRISCAPE.NET Guidelines, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
19. Interfere with a vendor’s business or listings.
20. Take any action that may undermine online reviews or feedback.
21. Appear to create liability for NUTRISCAPE.NET or cause NUTRISCAPE.NET to lose (in whole or in part) the services of NUTRISCAPE.NET’s ISPs or other suppliers
22. Listing any Nutrition Content on NUTRISCAPE.NET (or consummate any transaction that was initiated using NUTRISCAPE.NET’s service) that, by paying to NUTRISCAPE.NET the Transaction Fee, could cause NUTRISCAPE.NET to violate any applicable law, statute, ordinance or regulation, or that violates the Terms of Service.
(c) You acknowledge NUTRISCAPE.NET and its designees shall have the right (but not the obligation) in their sole discretion to reject or remove any Content that is available via the Site. NUTRISCAPE.NET does not endorse any Content submitted to the Site by any user or other licensor, or any opinion, claim, recommendation, or advice expressed therein, and NUTRISCAPE.NET expressly disclaims any and all liability in connection with any Content. Without limiting the foregoing, NUTRISCAPE.NET and its designees shall have the right to remove, without prior notice, any Content that violates the Agreement or is otherwise objectionable to NUTRISCAPE.NET. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
(d) You acknowledge and agree that you alone are responsible for the creation and compilation of your Content.
(f) You agree that you are responsible for actions and communications undertaken under your account. NUTRISCAPE.NET takes no responsibility and assumes no liability for any Content uploaded or otherwise transmitted by or to you or by or to any third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, infringement, obscenity, pornography or profanity you or a third party may encounter. You agree to waive any claims against NUTRISCAPE.NET and its affiliates, contractors, agents and employees for losses, damages and injuries which are based on or relate to communications, Content or materials on the Site. You agree to indemnify NUTRISCAPE.NET and its affiliates from all claims and expenses, including reasonable attorney’s fees, which claims are based on or arise from your violation of any of the provisions of this Agreement.
(g) You agree that you will use this Site and Nutrition Content ordered on this Site in accordance with all applicable United States federal, state and local laws, statutes, regulations and ordinances and will not take any action that harms or violates the rights of any person or entity.
9. Rights to and Use of Content
(c) By posting Content on NUTRISCAPE.NET, it is possible for an outside website or a third party to re-post that Content. You agree to hold NUTRISCAPE.NET harmless for any dispute concerning this use. If you choose to display your own NUTRISCAPE.NET-hosted image on another website, the image must provide a link back to its listing page on NUTRISCAPE.NET.
(d) NUTRISCAPE.NET considers any solicited or unsolicited suggestions, ideas, proposals, content of any notes, messages, e-mails, postings, letters, concepts or other material submitted to it by users via the Site or otherwise (other than the account information, personal information, Content and the Nutrition Content sold on the Site by users) (collectively, the “Material”) to be non-confidential and non-proprietary, and NUTRISCAPE.NET shall not be liable for the disclosure or use of such Material. If, at NUTRISCAPE.NET’s request, any user sends Material to improve the site (for example through the Forums or to customer support), NUTRISCAPE.NET will also consider that Material to be non-confidential and non-proprietary and NUTRISCAPE.NET will not be liable for use or disclosure of the Material. Any communication by you to NUTRISCAPE.NET is subject to this Agreement. The intellectual property rights in or relating to the Material will automatically be deemed to be assigned, granted and transferred by you to NUTRISCAPE.NET upon their submission or communication to NUTRISCAPE.NET, and you do assign all rights therein to NUTRISCAPE.NET and agree that the same will automatically become the property of NUTRISCAPE.NET and that NUTRISCAPE.NET may use, exploit, copy, publish, implement, transfer and in all other ways deal with such materials and all of the intellectual property rights therein in any way and for any purpose, commercial or otherwise, NUTRISCAPE.NET may elect, forever, without compensation or accounting to you and without further recourse by you.
(e) YOU REPRESENT AND WARRANT THAT YOU ARE THE OWNER OF THE CONTENT WHICH YOU SUBMIT AND THAT THE CONTENT DOES NOT INFRINGE UPON THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS (COPYRIGHTS AND TRADEMARKS) OR OTHER RIGHTS OF OTHERS. YOU ALSO REPRESENT THAT THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN THE CONTENT OR ANY PARTS OF THE CONTENT. YOU HEREBY REPRESENT AND WARRANT TO US THAT THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY YOU AND CONSTITUTES YOUR LEGAL, VALID AND BINDING OBLIGATION, ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS; AND THAT THE EXECUTION, DELIVERY AND PERFORMANCE BY YOU OF THIS AGREEMENT ARE WITHIN YOUR LEGAL CAPACITY AND POWER; HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE ACTION ON YOUR PART; REQUIRE THE APPROVAL OR CONSENT OF NO OTHER PERSONS; AND NEITHER VIOLATE NOR CONSTITUTE A DEFAULT UNDER THE (I) PROVISION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE TO WHICH YOU ARE SUBJECT OR WHICH IS BINDING UPON YOU, OR (II) THE TERMS OF ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT APPLICABLE TO YOU OR BINDING UPON YOU.
10. Third Party Sites
11. Resolution of Disputes and Release
(a) In the event a dispute arises between you and NUTRISCAPE.NET, please contact NUTRISCAPE.NET at steph@NutriScape.NET. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in the Matanuska-Susitna Borough of the State of Alaska, using the English language in accordance with the Arbitration Rules and Procedures of American Arbitration Association (“AAA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected in accordance with the Arbitration Rules and Procedures of AAA. The arbitrator’s award shall be final and binding. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the State of Alaska, Matanuska-Susitna Borough. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and NUTRISCAPE.NET agree that any cause of action arising out of or related to the Site (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
(b) You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Alaska. You further agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim is initiated in court rather than in arbitration you and NUTRISCAPE.NET waive any right to a jury trial.
(c) In the event a dispute arises between you and another user or a third party, NUTRISCAPE.NET encourages you to contact the user or third party to resolve the dispute amicably. If you have a dispute with one or more users or vendors you release NUTRISCAPE.NET (and NUTRISCAPE.NET’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
(d) If a customer and vendor has a dispute resulting from a transaction that occurs on NUTRISCAPE.NET, they must resolve such dispute amongst themselves. NUTRISCAPE.NET has no obligation to resolve disputes between users or between users and outside parties. To the extent that NUTRISCAPE.NET attempts to resolve a dispute, NUTRISCAPE.NET will do so in good faith based solely on NUTRISCAPE.NET’s policies. NUTRISCAPE.NET will not make judgments regarding legal issues or claims.
(e) You may also report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
(f) You release NUTRISCAPE.NET (and NUTRISCAPE.NET’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or an outside party.
12. NUTRISCAPE.NET’s Intellectual Property
(a) NUTRISCAPE.NET, and other NUTRISCAPE.NET graphics, logos, designs, page headers, button icons, scripts, and service names are copyrights, registered trademarks, trademarks or trade dress of NUTRISCAPE.NET, Inc. in the U.S. and/or other countries. NUTRISCAPE.NET’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion to consumers or in any manner that disparages or discredits NUTRISCAPE.NET. All other trademarks not owned by NUTRISCAPE.NET that appear on this site are the property of their respective owners.
(b) You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by NUTRISCAPE.NET, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any Content received through the Site without the authorization of NUTRISCAPE.NET or the Content owner. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site, in violation of applicable copyright and other intellectual property laws.
(c) You acknowledge and agree that the Site and any software provided to you or used in connection with the Site, including, for example and without limitation, any NUTRISCAPE.NET API or other scripts (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Other than as expressly provided under these terms, you agree not to reproduce, duplicate, copy, sell, resell or exploit for other commercial purposes, any portion of the Site, without NUTRISCAPE.NET’s express written consent.
14. Access and Interference
NUTRISCAPE.NET may contain robot exclusion headers which contain internal rules for software usage. Much of the information on NUTRISCAPE.NET is updated on a real-time basis and is proprietary or is licensed to NUTRISCAPE.NET by NUTRISCAPE.NET’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access NUTRISCAPE.NET for any purpose whatsoever, without NUTRISCAPE.NET’s prior express written permission. Additionally, you agree that you will not: Take any action that imposes, or may impose, in NUTRISCAPE.NET’s sole discretion, an unreasonable or disproportionately large load on NUTRISCAPE.NET’s infrastructure Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses as set out in NUTRISCAPE.NET Guidelines or otherwise without the prior express written permission of NUTRISCAPE.NET and the appropriate third party, as applicable, Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site, Bypass NUTRISCAPE.NET’s robot exclusion headers or other measures NUTRISCAPE.NET may use to prevent or restrict access to NUTRISCAPE.NET.
(a) Without limiting any other remedies or abilities, NUTRISCAPE.NET may, without notice, and without refunding any fees, delay or immediately remove Content, warn NUTRISCAPE.NET’s community of a user’s actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
(c) NUTRISCAPE.NET reserves the right to suspend and/or terminate a person’s account or any accounts held by that person by virtue of association, including all usernames under which that person operates on NUTRISCAPE.NET.
(d) NUTRISCAPE.NET’s failure to act with respect to a breach by you or others does not waive NUTRISCAPE.NET’s right to act with respect to subsequent or similar breaches.
16. No Warranty
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. NUTRISCAPE.NET, NUTRISCAPE.NET’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND NUTRISCAPE.NET’S SUPPLIERS PROVIDE NUTRISCAPE.NET’S WEB SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. NUTRISCAPE.NET, NUTRISCAPE.NET’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND NUTRISCAPE.NET’S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM NUTRISCAPE.NET SHALL CREATE ANY WARRANTY. NUTRISCAPE.NET DOES NOT MAY ANY WARRANTY THAT
(A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS OR
(B) THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR
(C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASE OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS OR
(D) THAT DEFECTS, IF ANY WILL BE CORRECTED, OR
(E) THERE WON’T BE ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND OR ANY AND ALL PERSONAL INFORMATION AND OR FINANCIAL INFORMATION STORED THEREIN, OR
(F) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY WILL BE MONITORED OR PREVENTED. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
17. Liability Limit
IN NO EVENT SHALL NUTRISCAPE.NET, AND (AS APPLICABLE) NUTRISCAPE.NET’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR NUTRISCAPE.NET’S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, NUTRISCAPE.NET’S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. NUTRISCAPE.NET’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF NUTRISCAPE.NET’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF
(A) THE AMOUNT OF FEES YOU PAY TO NUTRISCAPE.NET IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND
(B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD NUTRISCAPE.NET AND (AS APPLICABLE) NUTRISCAPE.NET’S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SITE, SUBMITTED CONTENT, BREACH OF THIS AGREEMENT, OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
19. DMCA and Intellectual Property Rights Policy
NUTRISCAPE.NET respects the intellectual property rights of others. If you believe that material located on or linked to by the Site violates your copyright or trademark, you are encouraged to notify NUTRISCAPE.NET in accordance with NUTRISCAPE.NET’s Digital Millennium Copyright Act (“DMCA”) Policy (see below). NUTRISCAPE.NET will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material that are contained on the Site. NUTRISCAPE.NET may terminate a user’s access to and use of the Site at NUTRISCAPE.NET’s sole discretion if NUTRISCAPE.NET determines that the user is or may be infringing on the copyrights or other intellectual property rights of NUTRISCAPE.NET or others. DMCA/IP Notification Policy: To notify NUTRISCAPE.NET of infringing or unlawful content, please provide NUTRISCAPE.NET with the following information: Your name, address, telephone number and e-mail address; A description of the exact location on the Site of the infringing or unlawful content; A description of the claimed infringing or unlawful content, specifying which parts you belief infringe or are unlawful and which parts you believe should be removed; In the event that you believe that the content infringes your rights, please include a detailed statement specifying your asserted rights and why the content infringes them; In the event that you believe that the content is unlawful, please include a detailed statement specifying why you believe that the content breaches a particular law; and A sworn and signed statement that the information provided is accurate and that you are directly or indirectly damaged by the content. NUTRISCAPE.NET takes such notices very seriously. NUTRISCAPE.NET will evaluate the provided notice and if appropriate, based on NUTRISCAPE.NET’s sole discretion, remove the content or disable access to the content. Based on NUTRISCAPE.NET’s judgment, NUTRISCAPE.NET may notify the source of the content of your complaint and NUTRISCAPE.NET’s actions in response to your complaint. NUTRISCAPE.NET reserves the right in NUTRISCAPE.NET’s sole discretion to restore such content if the source of such content provides evidence that the content should not have been removed. NUTRISCAPE.NET encourages you to seek the advice of an independent attorney before filing an intellectual property notice or responding to a notice filed by another user. NUTRISCAPE.NET may be notified of claims of intellectual property infringement by mailing or emailing the above requested information to: NUTRISCAPE.NET 2030 South Killarney Drive Palmer, AK 99645 Email: email@example.com Infringement and Third-Party Content Because the Site allows content to be posted from third parties and third-party websites, there is a chance that the ability to remove any allegedly infringing content will be out of NUTRISCAPE.NET’s control. While NUTRISCAPE.NET will make a good faith effort to remove the allegedly infringing content, once content is posted from NUTRISCAPE.NET to any third-party website, NUTRISCAPE.NET will have no control or ability to remove such content. If you believe your copyright has been infringed by a NUTRISCAPE.NET user posting content from a third-party website, we strongly suggest you contact the third party or third party site directly and request the allegedly infringing material be taken down.
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
22. NUTRISCAPE.NET Services
23. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Alaska and the United States of America.
Sections 1 (NUTRISCAPE.NET is a Marketplace) 4 (Listing and Selling Nutrition Content), 5 (Nutrition Content Licensing Policy), 6 (Purchasing Nutrition Content), 7 (Fees and Billing for the sale of Nutrition Content), 8 (Prohibited, Questionable and Infringing Nutrition Content and Activities), 9 (Rights to and use of Content), 11 (Resolution of Dispute and Release), 12 (NUTRISCAPE.NET’s Intellectual Property), 13 (Promotions), 14(Access and Interference), 17 (Breach), 16 (No Warranty), 17 (Liability Limit), 18 (Indemnity), 19 (DMCA and Intellectual Property Rights Policy, 20 (Severability), 23 (Choice of Law), 24 (Survival) shall survive any termination or expiration of this Agreement.
NUTRISCAPE.NET may assign its rights and responsibilities hereunder without notice to you.
These terms and conditions will inure to the benefit of NUTRISCAPE.NET’s successors, assigns and licensees. Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The failure of NUTRISCAPE.NET to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such rights or provisions.
Except as explicitly stated otherwise, any notices shall be given by postal mail to NUTRISCAPE.NET; 2030 South Killarney Drive, Palmer, AK 99645 (in the case of NUTRISCAPE.NET) or, in your case, to the email address you provide to NUTRISCAPE.NET (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, NUTRISCAPE.NET may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to NUTRISCAPE.NET. In such case, notice shall be deemed given three days after the date of mailing.
Updated: November 3, 2019