TERMS AND CONDITIONS
Effective Date: October 9, 2019
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE SERVICES. THROUGH YOUR USE OF THE SERVICES, YOU MANIFEST YOUR ASSENT TO THE TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE SERVICES.
CHOQ RESERVES THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN ITS SOLE DISCRETION. IN THE EVENT CHOQ MODIFIES, AMENDS, OR REPLACES THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR USE OF THE SERVICES AFTER A CHANGE IN ITS EFFECTIVE DATE CONSTITUTES YOUR ACQUIESCENCE TO AND ACCEPTANCE OF ANY MODIFICATION, AMENDMENT, OR REPLACEMENT.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND A CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. YOU HAVE A DUTY TO READ THIS AGREEMENT AND THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTAINED WITHIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, ITS ARBITRATION PROVISION, OR ITS CLASS ACTION WAIVER, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE SERVICES.
1. Permitted Uses and Ownership of Services’ Content
Choq is the owner of all rights in, and to, the Services, including, but not limited to, copyright rights, trademark rights, patent rights, rights of publicity and privacy, trade secret rights, and any other personal or proprietary rights. The Services are subject to copyright and other intellectual property rights under the law of the United States, foreign states, and international treaties, and Choq provides you with the right to use the Services on a limited basis. You are expressly prohibited from using the Services for any purposes not stated in this Agreement. Nitrosigine and the Nitrosigine logo are registered trademarks of Nutrition 21, LLC and the Nitrosigine product is covered by a number of patents and pending patent applications, including, but not limited to US Patent Nos. 7,576,132 and 6,803,456, which are owned by Nutrition 21, LLC.
Choq hereby provides you with a limited, non-exclusive, non-assignable, non-sublicensable, revocable license to use the Services for its customary and intended purposes. Use of the Services for a use outside of its customary and intended purposes or in violation of the terms of this
Agreement will result in the immediate termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to Choq.
You are expressly prohibited from reproducing, preparing derivative works of, distributing, performing publicly, displaying publicly, scraping, framing, hacking, reverse engineering, crawling, or aggregating the Services, whether in whole or in part, without the prior written consent of Choq. This prohibition on crawling or aggregating does not apply to search engines that appropriately comply with Choq’s robots.txt file.
Specifically, you are prohibited from:
1. Imposing a disproportionate load on the Services or its server infrastructure or otherwise attempting to interfere with the operation of the Services;
2. Circumventing Choq’s technological or security protection mechanisms;
3. Using a robot, spider, scraper, or other automated technology to access the Services;
4. Attempting to gain access to the private data or personal information of a user of the Services or a third party; or
5. Posting or transmitting content intended to collect personal or personally identifiable information from users of the Services or third parties.
The Services may only be used or accessed by individuals age eighteen (18) or over the age of majority in the jurisdiction in which they reside. You warrant that you are age eighteen (18) or over the age of majority in the jurisdiction in which you reside, that you are of sound mind and competent to agree to the terms of this Agreement, and that your use of the Services does not violate any law, regulation, ordinance, statute, or treaty that is applicable to individuals located in the jurisdiction in which you live. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement. If you are accessing the Services on behalf of a governmental organization, non-governmental organization, or business entity, you warrant that you are an authorized agent of said organization or entity and that you have the authority to bind said organization or entity to the terms of this Agreement.
3. Health-Related Information
Information and statements provided through the Services concerning dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. The information and statements provided through the Services are not meant to substitute for the advice of a doctor or other health care professional. The information and statements provided through the Services should not be used for diagnosing or treating any heath condition or disease.
5. Registered Accounts
Choq may provide you with the ability to register a user account with the Services through which you may be able to view your orders, downloads, or subscriptions, update your payment methods, or update the personal information associated with your account (“Account”). You may only use your Account and you are expressly prohibited from providing additional parties with access to your Account. You agree that, in registering an Account, you will provide Choq with accurate, compete, relevant, and current information. You are solely responsible for maintaining the security and confidentiality of your username and password and for any access to your Account, whether authorized or unauthorized. In the event your Account is accessed without your authorization, you agree to immediately provide notice to Choq. By creating an Account, you agree that Choq may contact you by any available means associated with your Account, including, but not limited to, by email.
Choq reserves the right to accept, reject, modify, suspend, or delete any Account at any time within its sole and absolute discretion.
Choq may provide shipping via USPS, UPS, FedEx Ground, or other providers. Any damaged or incorrect shipments must be reported within 48 hours of receipt. For damaged shipments, the shipment must be refused at the time of delivery and the original box and packaging must be kept until the carrier who delivered them claims them unnecessary for any claim purpose. If damaged or incorrect shipments are not reported within 48 hours of receipt, Choq may consider all claims of damage, defect, or other error waived.
Shipping charges are based on the monetary amount of your order and the shipping destination. All shipments will be made consistent with Choq’s shipping policies, which are listed on Choq’s website and may be changed at any time and within Choq’s sole and absolute discretion.
7. Product Availability
While Choq strives to carry or have regular access to sufficient inventory, it is possible that products may be out of stock at the time of your order. If this is the case, Choq will contact you in a reasonable time frame to advise you of the issue.
8. Ordering and Payment
Payment for all orders placed through the Services must be made at the time of ordering. You understand and agree that the prices quoted through the Services are an invitation to deal and that
no contract will be formed between you and Choq until Choq accepts your invitation to deal by performance, specifically, by shipping the ordered goods. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Services or purchase of goods through the Services. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Choq is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Choq’s payment processor. You agree that you will not initiate any chargebacks to Choq unless otherwise authorized by Choq in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Choq.
If you choose purchase products on a subscription basis through the Service, you authorize Choq to charge you a monthly or yearly membership fee at the then current rate published on the Choq website to your payment method. You acknowledge that the amount billed each month or year may change from pay period to pay period for reasons that may include differing amounts due to promotional offers/and or changing or adding a product to your membership, and you authorize Choq to charge your payment method for such varying amounts, which may be billed monthly or yearly in one or more charges.
Choq reserves the right to adjust pricing for its products or services or any components thereof in any manner and at any time as it may determine in its sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes will take effect following email notice to you.
Choq offers services which may be purchased on a monthly or yearly basis. The membership fee for Life Backups’ services will be billed at the beginning of the paying portion of your membership and each month or year thereafter unless and until you cancel your membership.
Choq automatically bills your payment method each month or year on the calendar day corresponding to the commencement of your paying membership. Membership fees are fully earned upon payment. Choq reserves the right to change the timing of its billing, in particular, if your payment method has not successfully settled. In the event your membership began on a day not contained in a given month, Choq may bill your payment method on a day in the applicable month or such other day as Choq deems appropriate. Choq may authorize your payment method in anticipation of membership or service-related charges. As used in this Agreement, “billing” shall indicate a charge, debit, or other payment clearance, as applicable, against your payment method.
9. Cancellation of Orders
Should you wish to cancel an order, you must do so prior to shipping. Some items may, when cancelled, require a restocking fee even if they are cancelled prior to shipment. This restocking fee will be deducted from any amount refunded to you. Cancellation of a subscription must be submitted in writing to [email protected] 5 days prior to renewal.
10. Third Party Links
You acknowledge and agree that the Services may contain links to third party websites or content that Choq does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Services, and you agree that Choq will not be responsible for websites not under the ownership or control of Choq.
11. Term and Termination
The term of this Agreement will begin upon your first accessing of the Services and will continue until the earlier of the following: (i) Choq terminates your access to the Services; or (ii) you cease using the Services and terminate your Account. Choq reserves the right to terminate the Services or your access to the Services in its sole and absolute discretion and without prior notice.
12. Disclaimer of Warranties and Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES, AND THE PRODUCTS PROVIDED THROUGH THE SERVICES, ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT CHOQ WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE SERVICES, OR ANY PRODUCTS PROVIDED THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE SERVICES OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT CHOQ’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE SERVICES OR $1000, WHICHEVER IS LESS.
CHOQ EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE SERVICES. PRODUCTS PURCHASED THROUGH THE SERVICES ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
CHOQ WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY
DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF PRODUCTS PURCHASED THROUGH THE SERVICES IS AT YOUR SOLE RISK AND THAT CHOQ’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID FOR THE PRODUCTS OR $1000, WHICHEVER IS LESS
You agree to indemnify, defend, and hold harmless Choq, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Services, (ii) your purchase of products through the Services; (iii) your use or misuse of products obtained through the Services; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Choq will not provide you with the ability to control Choq’s defense, and Choq reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
14. Choice of Laws; Arbitration.
You and Choq agree that any dispute, claim or controversy arising out of or in relation to this Agreement or the applicability, breach, termination, validity, enforcement, or interpretation thereof, or to the use of the Services will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between you and Choq, you and Choq agree that the arbitrator will decide that issue. Notwithstanding the foregoing, you and Choq each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration.
You and Choq agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Association’s most recent Commercial Arbitration Rules then in effect except where as modified herein. The arbitration will be conducted in Travis County, Texas and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. This arbitration will be held in Austin, Texas and both Parties agree that they will be
required to be present in Austin, Texas for arbitration under the terms of this Agreement and hereby submit to exclusive personal jurisdiction in Austin, Texas. The arbitrator will apply the laws of the State of Texas and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause.
Choq and you acknowledge and agree that each are waiving the right to a trial by jury as to all arbitrable disputes.
Choq and you acknowledge and agree that, to the fullest extent permitted under the law, each are waiving the right to participate as a plaintiff or class member in any class action lawsuit, class arbitration, or private attorney general action. If this class action waiver is held unenforceable with respect to the dispute between the parties, the parties agree that the entirety of the arbitration clause will be deemed void with respect to such dispute and the dispute must proceed in court.
15. Force Majeure
Choq will not be responsible for any delay or failure in performance of the Services or its associated products arising out of any cause beyond Choq’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, youf Account, or the Services, including, but not limited to, your duty to indemnify and defend Choq.
In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
You are expressly prohibited from assigning your rights and duties under this Agreement. Choq reserves the right to assign its rights and duties under this Agreement, including in a sale of Choq or its Services.
20. Waiver and Integration
No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.