TERMS &
CONDITIONS
Last updated: September 18th, 2020
Dear user,
We, Noise Gummies, LLC, its subsidiaries and affiliates (collectively, "Noise" or “we” or “us” or “our”), appreciate your business, visit to, and use of our website (the “Site”). The Site is an e-commerce platform that enables users (“you” or “your” or “user” or “users” or “subscriber” or “subscribers”) to purchase vitamin nutritional products and supplements, whether by subscription, single order or otherwise (the "Products” or the “Services" or the “Products and Services”).
These Terms and Conditions (the “Terms” or the “Agreement”) govern your access to, and use of, the Products and Services made available by us on the Site.
By accessing and using the Site and/or using our Products and Services, you are agreeing to be bound by the following Terms without modification, limitation or qualification. These Terms expressly supersede prior agreements or arrangements with you. Please read them carefully. Please also note that we may, at our sole discretion, modify or revise these Terms at any time by updating the text of this page without notice to you, and you are bound by any such modification or revision. You should therefore visit this page periodically to review the Terms. Your continued access, use or browsing on this Site following the posting of changes to the Terms, means you accept those modifications or revisions.
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Site on your personal device solely in connection with your use of the Products and Services; and (ii) access and use any content, information and related materials that may be made available through the Site, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by us and our licensors.
I. Privacy and Security
We consider the privacy and protection of all users to be paramount. Please review our Privacy Policy https://takeboost.com/privacy, which governs your visit to our Site and your use of our Products and Services, to understand our privacy practices and policies. The Privacy Policy may be updated from time to time at our discretion and changes will be effective upon posting to the Site. Our Privacy Policy is incorporated herein by this reference.
II. User Account
In order to use certain features of the Site, you may be required to register and maintain a user account. The information we require for your account is provided below under Personal Information We Collect. Such information enables us to efficiently provide Products and Services to you whether on the basis of a subscription, a single order, a promotional campaign or otherwise. Note that when you open a user account, you are required to provide and maintain accurate, complete and up-to-date content on your account. If we believe the information provided in your account is inaccurate, misleading or not up-to-date, we may close down your account.
III. Personal Information We Collect
Whether you open a user account, receive Products and/or Services via subscription, single order or otherwise, the personal information we require from you in order that we may serve you best, is as follows:
- (i) Your full name;
- (ii) Your address (physical and/or e-mail);
- (iii) Your phone number; and
- (iv) Card payment details.
IV. Minimum Age
You must be at least eighteen (18) years of age (the “Minimum Age”) to access this Site or maintain a user account or to use the Products and Services. Minors below the Minimum Age may not accept this Agreement, create an account or use the Site or the Products and Services under any circumstances.
V. Order, Acceptance, and Cancellation
You agree that your order of Products and/or Services, is an offer under these Terms to buy what is listed in your order. Note that we will not be obligated to sell any Products and/or Services to you unless we accept your order. We may, at our sole discretion, choose not to accept orders. We will proceed to send you a confirmation e-mail with your order number and details of the items you have ordered, upon receipt of your order. The contract of sale between you and us will not be deemed to have taken place unless and until you have received your order confirmation e-mail from us. Receipt of your order confirmation e-mail shall be indicative of the acceptance of your order. You may cancel your order before we have sent your order confirmation e-mail, by contacting our Customer Service Department at customerservice@takeboost.com.
VI. Billing and Payment
Upon successful placement of orders, you will opt for the right option at the checkout, as follows
1. Option One (1) — Subscription Option: This option entails shipping a bottle per month to a subscriber, with a three (3) months minimum subscription. The subscriber is billed monthly (both for the price of the Product(s) and the shipping cost). The subscriber has the option to opt out within seventy two (72) hours before the shipping date.
2. Option Two (2) — One Bottle Purchase: This option entails shipping one bottle one time to the user. The user is billed once (both for the price of the Product(s) and the shipping cost).
The user is always responsible for shipping the Product(s), unless there is an ongoing promotion.
For purposes of billing we accept the following bank or credit cards: Visa, MasterCard, American Express and Discover. We are not responsible for any fees or charges that may be levied by your bank or credit card issuer. As stated above in Personal Information We Collect, we save your bank or credit card information for your convenience.
Please note that you may be charged federal, state or local taxes for your purchase of Products and Services on the Site. In the event your payment method is declined, we will attempt to process your
order until the transaction is approved. If we are unable to complete the transaction, we may contact you directly to update your account information.
VII. Shipping and Delivery Terms
Once you choose a delivery option during your order checkout, we will arrange for shipment of the Product(s) to you. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier. If you would like to receive a refund for any reason, please contact us at billing@takeboost.com. Refunds will be issued by us after review of your claim and in our sole discretion.
Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
VIII. Third-Party Links and Sites
While using our Site, you may encounter links to third party websites or see third party advertisements, marketing, sponsor and/or promotional campaigns. Our payment processor for instance, is a third party. Please note that we and our licensors shall have no liability, obligation or responsibility for you access to such third party links or services. Note further that such third party providers may require your agreement to additional or different terms and conditions prior to your use of or access to their goods or services. We disclaim any and all responsibility or liability arising from such agreements between you and said third party providers, nor the veracity and accuracy of information provided by the third parties. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
IX. User Opt In/User Opt Out
We offer a mobile messaging program (the “Program”), which you may use to receive marketing text messages and/or tips, subject to these Terms.
User Opt In: During checkout, you can affirmatively opt into our Program to receive SMS/MMS mobile messages such as through online or application-based enrollment forms. You agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive text or 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. Please note that message and data rates may apply.
User Opt Out: You can reply with STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out if you do not wish to continue participating in 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 and that no other method shall be adequate means to opt out of the Program.
X. Intellectual Property
A. Copyright Notice
All content and software included on or used in the Site is the property of Noise or its content or software suppliers, as the case may be, is protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of Noise and is protected by United States and international copyright laws. © 2020, Noise, New York, United States - All Rights Reserved.
B. Trademark Notice
All marks on our Site including, but not limited to, Noise, are trademarks of ours in the United States and other countries. Noise and its related graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through Noise Services and the Site, are trademarks or trade dress of ours in the United States and other countries. Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us.
Our Site may contain logos, trademarks, or other intellectual property belonging to third parties not affiliated with Noise. You are responsible for complying with all legal obligations and the intellectual property policies related to any use by you of any third party’s intellectual property displayed on our Site. You agree to indemnify and hold harmless Noise for any use by you of any third party’s intellectual property or proprietary information displayed on our Site
C. Restrictions
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Site; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or Products and Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Site except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Site or Products and/or Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site or Products and/or Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Site or Products and/or Services or related systems or networks thereto.
D. Ownership
The Site and the Services and all rights therein are and shall remain our property or the property of our licensors. Neither these Terms nor your use of the Site and the Products and Services convey or grant to you any rights: (i) in or related to the Site except for the limited license granted above; or (ii) to use or reference in any manner Noise’s company names, logos, product and service names, trademarks or services marks or those of our licensors.
E. Unlawful Activity
We reserve the right to investigate complaints or reported violations of these Terms and to take any action we deem appropriate including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any content necessary or appropriate to such persons or entities relating to your registration data, usage history, posted materials, IP addresses and traffic content.
XI. Disclaimer of Warranties and Limitation of Liabilities
A. Disclaimer of Warranties
All the content on the Site is for informational purpose only and does not constitute medical or other licensed professional advice. It is in no way intended to be a substitute for independent professional medical judgment, advice, diagnosis, or treatment. In the event of a medical symptom or condition, please proceed to immediately seek the necessary medical assistance.
Except as expressly set forth herein (and except as may be required by law), Noise expressly disclaims all representations and warranties, expressed or implied, in connection with the Products and/or the Services and this Agreement, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. All materials provided hereunder are provided “as is” and “with all faults.”
B. Limitation of Liabilities
To the extent permitted by applicable law, no claim may be made by you or any other person against us, or our affiliates, directors, officers, employees and/or attorneys, for any special or punitive damages (as opposed to direct, indirect or consequential damages) in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and you hereby waive, release and agree not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
XII. Indemnity
To the extent authorized by applicable law, you agree to defend, indemnify and hold us, our officers, directors, employees and agents, harmless against any and all claims, demands, damages, losses, liabilities and costs, including, without limitation, reasonable legal, expert and accounting fees, incurred by us in connect with any claims, actions or demands alleging or resulting from your use of Content (including our software) of our Site, your direct or indirect breach of these Terms, or your violation of law or of the rights of any third party.
You agree to indemnify and hold Noise, its members, shareholders, consultants, directors, officers, employees, heirs, successors, assigns, agents and other representatives (collectively, the “Indemnified Party”), harmless from any and all manner of actions, suits, debts, sums of money, interest owed, accounts, controversies, agreements, guaranties, promises, undertakings, charges, damages, judgments, executions, obligations and reasonably incurred costs, expenses and fees (including reasonable attorneys’ fees and court costs), counterclaims, claims, demands, causes of action, liabilities, losses, damages and amounts paid in settlement incurred, paid or sustained that the Indemnified Party may suffer as a result of your use of the Site, your breach of these Terms, whether direct or indirect or your violation of law or of the rights of any third party.
XIII. Feedback
You are under no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a worldwide, perpetual, non-exclusive, royalty-free, sublicensable and transferable, license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, or publicly perform the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
XIV. General/ Miscellaneous
A. Assumption of Risk
By agreeing to these Terms, you acknowledge that there are federal, state, and local laws pertaining to the Products and Services, and these laws vary by jurisdiction. You are responsible for compliance with all the laws of your jurisdiction, and you assume all liability with regard to the purchase, possession, and use of our Products and Services. Any and all claims you may have against us that arise from, or are related to, a civil or criminal enforcement action against you shall be governed by, and subject to, the dispute resolution terms in this Agreement.
B. Assignment
You shall not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this provision is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
C. No Waiver
Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Noise.
D. Severability
In the event that any provision of this Agreement shall be determined to be illegal, unenforceable or excessively broad as to duration, geographical scope or activity, then that provision shall be construed so that the remaining provisions of this Agreement shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad provision shall be deemed, without further action on the part of any party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in the applicable jurisdiction.
E. Termination
These Terms are, and are intended to be, a continuing agreement and shall remain in full force and effect. We may, in our sole discretion, terminate, change, suspend, disable, add to or discontinue any aspect of the Site, these Terms and Products and Services at any time, and without liability to any user. We may restrict, suspend or terminate your use of or access to the Site and the Products and Services if we believe you are in breach of or are attempting to breach the Terms or applicable law, or for any other reason without notice or liability (including, for example, if we learn that you have provided us with false or misleading information, or interfered with other users or the administration of our Site and the Products and Services).
In the event of the termination of these Terms for any reason: (i) the license granted to you in the Terms will immediately terminate; and (ii) you must immediately cease all use of the Site and destroy or erase all copies of the Site in your possession or control. All of the sections of the Terms will survive any termination of these Terms. Any use of the Site after termination is unlicensed and is in violation of the copyright and other intellectual property rights of Noise. Noise reserves the right to refuse service, terminate accounts, remove or edit content or cancel orders in its sole discretion.
F. Governing Law; Forum and Jurisdiction
You hereby agree that any action arising between you and Noise in relation to these Terms and/or your use of the Site and our Products and Services, shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws, as the same may, from time to time, be in effect, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
Any and all disputes or controversies arising under or relating to the interpretation or application of the terms of these Terms or any extension or modification thereof, or the asserted breach thereof by any party, shall be resolved through final and binding arbitration in New York City, the State of New York, by a single arbitrator to be chosen by the American Arbitration Association under its Commercial Arbitration Rules. Any arbitrator so appointed shall be empowered to, in addition to awarding actual money damages (but not punitive damages) against the party found to have violated these Terms, grant in his award, injunctive or other types of equitable relief, to enforce specific performance of these Terms, and to prevent any continuing or further violation of its terms. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction there. The cost of such arbitration shall be borne equally by the parties, except that each party shall be responsible for its own attorneys’ fees.
G. Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
H. Entire Agreement
This Agreement, including our Privacy Policy and where applicable, all related exhibits, appendices, attachments and schedules, which are incorporated herein by this reference, constitutes the sole and entire agreement of the parties regarding the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
XV. Further Inquiries
Feel free to direct any questions to us about these Terms, the Site and our Products and Services, or any other issues, via e-mail at operations@takeboost.com.