nutsakz

legal

 

USER AGREEMENT

 

BS Brands, LLC; D.B.A. Nutsakz.com, PO Box 1842, Boulder, Colorado 80306-1842 ("NUTSAKZ") is pleased to present in this User Agreement (“Agreement”) the complete terms and conditions that apply to an individual's or entity's use of NUTSAKZ’s website(s) as set forth herein. As used in this Agreement, "we", “us” or "Company" means NUTSAKZ, "you", “your” or "The User" means the user of NUTSAKZ’s Products or Services. "Products" or "Services" means any NUTSAKZ offering.


1. Fulfillment:
NUTSAKZ will use reasonable commercial best efforts to fulfill all paid orders for Products and/or Services in accordance with its customary business practices. NUTSAKZ shall be solely responsible for fulfilling all orders and processing all credit card transactions. Each party to this agreement shall be responsible for paying all appropriate taxes associated with their activities. Unless NUTSAKZ states otherwise, Products and Services offered through the NUTSAKZ website will be supported by the same favorable warranty and return policy for such products as offered through other NUTSAKZ channels.


2. Policies and Pricing:
The Users that buy Products or Services through the NUTSAKZ website will also be deemed to be customers of NUTSAKZ. Accordingly, all of NUTSAKZ’s terms of sale, rules, policies, and operating procedures concerning Users’ orders, User service, and Product and Service sales will apply unless stated otherwise. NUTSAKZ may change its policies and operating procedures at any time. NUTSAKZ will use commercially reasonable efforts to present accurate information, but NUTSAKZ cannot guarantee the availability, price, or functionality of any particular item.
Payments for all Products and Services shall be made by valid American Express, Visa, or MasterCard credit card. As part of NUTSAKZ’s User set-up process, you shall provide a valid credit card number, authorized signatory’s name, card expiration date, and other such information as may be required to process and transact charges made to your credit card(s). It is the User’s responsibility to ensure that your billing and credit card information is kept current. The User authorizes NUTSAKZ to charge all appropriate fees to the credit cards then on file with NUTSAKZ.


3. User’s Responsibilities:
The User’s site(s) and material(s) shall not (i) contain, promote or link to sexually explicit, violent, defamatory, infringing, or illegal material; (ii) contain unlawful material, including material that may violate the intellectual property rights of a third party; (iii) contain material that promotes discrimination based on gender, religion, race, age, sexual orientation, national origin, or mental or physical disability; (iv) contain misleading, inaccurate or fraudulent material, or omit statements that would cause confusion or deceive consumers or potential registrants if not omitted; or (v) contain any other material or reference that NUTSAKZ deems, in our sole discretion, to be unsuitable.
By tendering material to NUTSAKZ to which a third party has rights, you are representing that you have express permission to use this material. You agree to indemnify and hold NUTSAKZ harmless in the event a third party claims you used their copyrighted or other proprietary material in violation of the law.


4. User:
You understand and agree that as The User, you can use the Company's Products and Services for lawful purposes only. Any conduct by you that in the Company's discretion restricts or inhibits any other User or NUTSAKZ customer from using or enjoying the Company's Products and Services will not be permitted. The User shall not use the Company's Products and Services to solicit customers / other Users for other services competitive with the Company's Products and Services.


5. NUTSAKZ's Responsibilities:
NUTSAKZ will use reasonable commercial best efforts to process orders placed by The User. NUTSAKZ will use reasonable commercial best efforts to process payments and other related customer services.


6. Term:
The term of this Agreement will begin upon its Acceptance of this Agreement. “Acceptance” means any action taken to accept this agreement, such as clicking on the acceptance button, which reads to the effect of “I have read and AGREE” and which appears at or near the end of this Agreement, or using Products or Services and shall continue so long as the use continues or there is a need for NUTSAKZ’s licenses in Section 8.


7. Intellectual Property License and Ownership:
a. The User agrees that all of NUTSAKZ’s work product hereunder, including, without limitation, any and all notes, records, drawings, designs, developments, discoveries, inventions, computer programs, copyrightable materials, and trade secrets, that are conceived, designed, developed, discovered, produced or made by NUTSAKZ, solely or in collaboration with others, in the Services hereunder, including any derivative work of any of the foregoing made by either party, (collectively, the "Work Product") shall be the exclusive property of NUTSAKZ. The term "derivative work", as used herein, means any translation, including any translation into any other computer language(s), conversion or portation, correction, addition, extension, enhancement, upgrade, improvement, modification, compilation, abridgment or other form in which the Work Product (or any portion thereof) may be recast, transformed or adapted.

 

b. You acknowledge and agree that NUTSAKZ shall have all proprietary rights in and to the Work Product, including, without limitation, all copyrights, patents and trade secret rights, all contract and licensing rights, and all claims and causes of action of any kind with respect to any of the foregoing, whether now known or hereafter to become known, and that NUTSAKZ shall have the sole and exclusive right to use and exploit the Work Product in any manner that NUTSAKZ may choose.

 

c. If any rights, title, and/or interests in and to the Work Product (or any portion thereof) shall not vest automatically in and with NUTSAKZ, The User hereby irrevocably assigns, conveys and otherwise transfers to NUTSAKZ, and its respective successors and assigns, any and all such worldwide rights, title and interests in and to the Work Product, including, without limitation, all patent rights, copyrights, mask work rights, trademarks, trade secret rights, and all other intellectual property and other such proprietary rights, all contract and licensing rights, and all claims and causes of action of any kind with respect to any of the foregoing, whether now known or hereafter to become known.

 

d. The User shall assist NUTSAKZ (or its designees), at NUTSAKZ's expense, in every proper way both during and subsequent to the term of this Agreement, to secure and protect NUTSAKZ's rights, title and interests in and to the Work Product in any and all countries throughout the world, including, without limitation, the disclosure to NUTSAKZ of all pertinent information and data of or concerning the Work Product, and the execution of any and all documents which NUTSAKZ shall deem necessary in order to fully vest in RRM all rights, title and interests in and to the Work Product, to confirm that all such rights have vested exclusively in NUTSAKZ, and/or to apply for and obtain protection for the Work Product (or any portion thereof) to the fullest extent permitted under applicable law. The User shall require appropriate agreements with its employees and any other persons or entities participating in the creation and/or development of the Work Product pursuant to which all such employees and/or third parties shall effectively release and relinquish any and all rights, title and/or interests which they may have in and to the Work Product (or any portion thereof).

 

e. If NUTSAKZ is unable, because of The User's unavailability, dissolution, mental or physical incapacity, or any other reason, to secure The User's signature to apply for or to pursue any application for any United States or foreign patents, copyrights, mask works, and/or trademark registrations covering the Work Product (or any portion thereof), then The User hereby irrevocably designates and appoints NUTSAKZ and its duly authorized officers and agents as The User's agent and attorney-in-fact, to act for and in The User's behalf to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, mask works, and/or trademark registrations with the same legal force and effect as if executed by The User.

 

f. "Moral Rights", as used herein, means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the laws of any country in the world, or under any treaty between any of two countries. The User hereby irrevocably transfers and assigns to NUTSAKZ, to the extent The User may lawfully do so, any and all Moral Rights that The User may have or may ever be deemed to have in the Work Product (or any portion thereof). In addition, The User hereby forever waives and agrees never to assert against NUTSAKZ, any or all Moral Rights which The User may have or may ever be deemed to have in the Work Product (or any portion thereof), whether during or subsequent to the termination of The User's provision of the Services hereunder.

 

8. Licenses:
The User hereby grants NUTSAKZ a royalty-free, non-exclusive, worldwide license as may be necessary or desirable for NUTSAKZ to perform its obligations under this Agreement. Said license shall at a minimum include the right for NUTSAKZ, at its sole discretion, to use, store, archive, dispose of, rent, promote, repurpose, reproduce, copy, modify, distribute or publish on or via any medium, sell and display material. In the event this license encompasses material to which third parties have rights, The User agrees to obtain rights from those third parties for their material to the extent necessary for The User to comply with this license grant.

 

9. Legal Compliance:
Both Parties shall operate their respective sites and services in compliance with all applicable laws and regulations, and each will be solely responsible for obtaining all required governmental authorizations necessary for the full performance of its services as provided for under this Agreement. Each Party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (b) it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; and (c) the services to be rendered by each party under this Agreement neither infringes nor violates any patent, copyright, trade secret, trademark, or other proprietary right of any third party.

 

10. Confidentiality:
For purposes of this Agreement, "Confidential Information" means any proprietary information, technical data, trade secrets or know-how of the Parties, their affiliates, customers, agents and vendors, which is disclosed to a Party (the “Recipient”) in writing, orally, in drawings, or by inspection of parts or equipment. The undertaking and obligations under this confidentiality provision shall not apply to Confidential Information that is:

The Recipient shall treat the other Party’s Confidential Information in trust and with confidentiality, employing at least the same degree of care and confidentiality that it affords its own trade secrets and Confidential Information, and in no event, less than due care. The Recipient shall not, during the term of this Agreement and for five (5) years after its termination or expiration, use the other Party’s Confidential Information for any purpose other than the performance of obligations or the execution of rights under this Agreement, or disclose Confidential Information to any third party. Neither Party receives a property interest in the other Party’s Confidential Information solely by virtue of the Recipient’s knowledge or use of it. Recipient further agrees to take all reasonable precautions to prevent any unauthorized copying, use, and/or disclosure of the other Party’s Confidential Information.

 

Upon the termination of this Agreement, or upon the other Party’s earlier request, Recipient shall deliver to the other Party all of the latter's property and Confidential Information in tangible form (including any and all copies thereof) that Recipient has in its possession or under its custody or control as of such date and permanently destroy its electronically stored records of such Confidential Information. Recipient further agrees to employ commercially reasonable efforts to retrieve tangible manifestations of the other Party’s Confidential Information that Recipient has given to third parties and seek the permanent destruction of all electronically stored records of such Confidential Information.

 

In the event a Party is compelled by proper judicial or governmental authority to disclose Confidential Information, then that Party shall, prior to disclosure;

Neither Party shall in any manner advertise, publish, or disclose the material terms, or details of this Agreement.

 

The furnishing of Confidential Information shall not be construed to grant any license or constitute any assignment of a right to any Confidential Information except as expressly provided in this Agreement. The receipt of Confidential Information will not preclude or in any way limit either Party from freely assigning its employees or providing products or services to a third party. Neither Party makes any warranties, express or implied with respect to Confidential Information, beyond the express terms contained in this Agreement. Neither Party shall be liable for any damages arising out of the use or reliance on the other Party’s Confidential Information. The obligations of confidentiality in this agreement shall be continuing until the confidential information disclosed to you is no longer confidential.

 

11. Indemnification:
The User shall defend, indemnify, and hold harmless NUTSAKZ and its officers, directors, shareholders, owners, managers, employees, agents, contractors, affiliates and attorneys ("NUTSAKZ Related Parties") from and against any and all claims of third parties, including, but not limited to all loss, liability, claims, demands, damages, cost or expense, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys' fees and costs (including claims without legal merit or brought in bad faith), relating to The User's services or arising under or relating to The User's performance of this Agreement, including the use, display, exploitation, or operation of any of The User’s Sites or Materials. If NUTSAKZ is threatened by claims or suit of a third party, NUTSAKZ may seek written assurances from The User concerning The User's obligation to indemnify NUTSAKZ. Failure to provide such written assurances shall be deemed a material breach of this Agreement. Failure of User to fully indemnify NUTSAKZ in a timely manner shall result in termination of this Agreement with NUTSAKZ, and such termination shall in no way prejudice NUTSAKZ's right to seek the indemnity by way of litigation or otherwise.

 

12. Disclaimer, Limitation of Liability:
NUTSAKZ SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, RELATING TO THE USER'S OR NUTSAKZ'S PROVISION OF PRODUCTS AND SERVICES, OR IN ANY OTHER WAY RELATED TO THE SERVICES PROVIDED BY NUTSAKZ, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. ADDITIONALLY, NUTSAKZ AND NUTSAKZ RELATED PARTIES SHALL NOT BE LIABLE WHATSOEVER FOR ANY LOSSES OR DAMAGES THAT THE USER MAY INCUR AS A RESULT OF UNAUTHORIZED USE OF NUTSAKZ'S SERVICES, ARISING FROM "HACKING" OR OTHERWISE, FORCE MAJEURE, OR FOR LACK OF FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR SERVICES. FINALLY, NUTSAKZ SHALL NOT BE LIABLE WHATSOEVER FOR ANY DAMAGES THAT THE USER MAY SUFFER BECAUSE OF SERVICE OR SYSTEM FAILURE, INCLUDING CALL CENTER, REGISTRY SYSTEM FAILURE, ROOT SERVER FAILURE, INTERNET PROTOCOL ADDRESS FAILURE, ACCESS DELAYS OR INTERRUPTIONS, DATA NON-DELIVERY OR MIS-DELIVERY, ACTS OF GOD, FORCE MAJEURE, UNAUTHORIZED USE OF PASSWORDS, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY INFORMATION OR OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, DELAYS OR INTERRUPTIONS IN DEVELOPMENT OF WEB SITES OR PRODUCTS, DELAYS OR INTERRUPTIONS IN PROVISION OF SERVICES, OR BREACH OF SECURITY, EVEN IF NUTSAKZ HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES, AND EVEN IF NUTSAKZ MAY FORESEE SUCH POSSIBLE DAMAGES. THE USER'S SOLE REMEDY FOR NUTSAKZ'S BREACH OF THIS AGREEMENT SHALL BE TO TERMINATE ITS AGREEMENT WITH NUTSAKZ.

 

13. Representations and Warranties:
You hereby represent and warrant to us as follows:

 

a. This Agreement has been duly and validly accepted by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.

 

b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation if applicable, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.

 

c. You are the sole and exclusive owner of your Marks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.

 

d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.

 

e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.

 

14. Binding Effect:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations, benefits, or liabilities under or by reason of this Agreement.

 

15. Modification:
NUTSAKZ may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. Modifications may include, but are not limited to, changes in pricing, transaction processing procedures, and any aspect of Product or Service provided hereunder. Your continued use of NUTSAKZ Product(s) and Service(s) following any such modification will constitute your binding acceptance of the change.

 

16. Severability:
The Parties understand and agree that it is intended that all provisions of this Agreement shall be fully binding and effective between The User and NUTSAKZ, but in the unlikely event that any particular provision or provisions or part of one is found by any court of competent jurisdiction to be illegal, void, or unenforceable for any reason whatsoever, then the particular provision or provisions or part of that provision shall be deemed severed from the remainder of this Agreement and all other provisions shall remain in full force.
Failure of The User to abide by any provision of this Agreement or NUTSAKZ Policies shall be considered a material breach hereof. In the event of such material breach, NUTSAKZ may provide written notice to The User describing the breach. The User shall then have five (5) calendar days to cure such breach or to provide evidence reasonably satisfactory to NUTSAKZ that there is no breach hereof. In the event of a breach that is not cured or refuted by The User to NUTSAKZ's satisfaction, NUTSAKZ may terminate this Agreement without refund and without further notice. Furthermore, NUTSAKZ may pursue any and all legal remedies it may have against The User. Any such breach by The User, or failure of NUTSAKZ to enforce any right or remedy available to it, shall not be deemed excused because NUTSAKZ did not act earlier in response to a breach by The User.

 

17. Marketing Methods:
The User understands and agrees that any marketing methods that are in violation of (i) any local, state, federal or international law, regulation or treaty; (ii) the Policy; or (iii) any community standard or accepted Internet policy is prohibited. Any such violation may be deemed a material breach of this agreement and NUTSAKZ may, in its sole discretion, disable or terminate The User’s account.

 

18. Governing Law; Jurisdiction and Venue:
This Agreement shall be governed by and construed according to the internal laws of the State of Colorado, excluding any application of the principles of conflict of laws. The Parties agree that any action or proceeding brought to enforce the terms of this Agreement shall be brought in the courts in the State of Colorado, and you hereby submit to the exclusive jurisdiction and venue of such courts for purposes of any such action.

 

19. Assignment/Delegation:
The User shall not assign any of its rights, nor delegate any obligations, hereunder without the express written consent of NUTSAKZ. Any purported assignment of rights or delegation of duties or rights hereunder by The User shall be null and void and of no force or effect.

 

20. Independent Investigation:
BY CONTINUING TO VISIT AND USE THE NUTSAKZ WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT NUTSAKZ MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER BUSINESS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ACQUIRING PRODUCTS OR SERVICES FROM NUTSAKZ AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.