1. This is a contract.
2. Some important vocabulary.
3. Sometimes things change.
4. You have both rights and obligations.
Among your other obligations, you are required to make sure you don’t use the online and mobile resources, Content, and the various features and functions offered on or through the online and mobile resources, for, or in connection with:
- reverse engineering, making machine code human readable, or creating derivative works or improvements;
- scraping, crawling, downloading, screen-grabbing, or otherwise copying and/or transmitting them in any way we haven’t specifically permitted;
- commercially exploiting or providing them to third parties;
- introducing, transmitting, or storing viruses or other malicious code;
- interfering with their security or operation;
- framing or mirroring them;
- creating, benchmarking, or gathering intelligence for a competitive offering;
- removing, modifying, or obscuring proprietary rights notices on them;
- defaming or harassing anyone;
- infringing another party’s intellectual property rights, including failing to obtain permission to upload/transfer/display works of authorship;
- intercepting or expropriating data; and/or
- spamming, spoofing, or otherwise misrepresenting transmission sources.
5. We think globally, but speak and act locally: so U.S. law controls.
We control and operate the online and mobile resources from within the United States of America (the “U.S.”). Although we do not actively block or monitor visitors from other countries, the online and mobile resources are directed only at visitors from the U.S. who are age 18 or older. As such, your use of the online and mobile resources and Content, and the enforcement of these ToU, are governed and construed exclusively in accordance with the laws of the State of New York and the federal laws of the U.S. enforced within that state, without regard to principles of conflicts of laws.
No matter where you use the online and mobile resources or Content from, you also must comply with all laws applicable to such use, including U.S. export control laws that prohibit access from certain embargoed, prohibited, or restricted countries or access by prohibited, denied, and specially designated persons.
If the U.S. government (including the Department of Defense) wants to access the online or mobile resources, your Account, or our Content through you, all online and mobile resources and Content will be considered “commercial computer software”, “commercial computer software documentation” and “restricted data” under “Limited Rights” and “Restricted Rights” and only as commercial end items under the same rights granted to other general users.
6. The origins and uses of Content.
Content may have a variety of origins, including information generated and provided by us and third parties. We cannot promise that the Content is or will be:
- accurate or complete;
- current (or that it will be updated);
- error free (either technically or with respect to typographical errors); and/or
- free from interruptions, computer viruses, or other harmful components.
You may make use of the Content as provided herein, but under no circumstances will we be liable for any loss or damage caused by such use and/or your reliance on the Content. It is, therefore, your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, or other elements of the Content.
7. Terms of Service Use.
You must only use the platform in accordance with the instructions provided and only for the purpose in which they are provided. You should consult a doctor or physiologist before use of our services, especially if you have any concerns, medical questions and queries regarding the possible treatment of any medical condition. We cannot, do not, and do not intend to provide any medical or physiological advice. Please note that the effectiveness of our aesthetic platform will vary from customer to customer depending on factors such as one current medical and cosmetic condition, the number of times one uses the aesthetic platform, the quality of ones use of the aesthetic platform and the duration of time on each aesthetic treatment.
IF YOU NEED MEDICAL ATTENTION, CALL 911 OR YOUR DOCTOR OR PHYSIOLOGIST IMMEDIATELY.
8. Account registration.
Some features of the online and mobile resources require that you register and create an account (an “Account”). If you choose to create an Account, for any reason, you agree to submit complete, accurate, and current information and data about you as required during the registration process and maintain and promptly update it as necessary. If you submit any information that is inaccurate or incomplete, violate any terms of Section 4, or if NUHYDRATION has a reasonable belief that such is the case, we may immediately suspend or terminate the Account and your use of our online and mobile resources and/or the Content. As part of the registration process, you may be issued credentials, usually in the form of a unique user identification and password (the “Account Credentials”). Your commitment to maintaining the strict confidentiality of your Account Credentials is a material condition of your access and use of the applicable online and mobile resources and Content. You must not allow others to use your Account Credentials and you agree to notify us immediately if you have reason to believe that someone is using your Account Credentials without your permission or if any other breach of security related to your Account occurs. You must also ensure that you log-off and exit from your Account at the end of each session. It is your responsibility to notify us if you desire to cancel your Account. Except to the extent required by law, NUHYDRATION will not be liable for any losses arising out of the unauthorized use of your Account Credentials, either with or without your knowledge.
9. Trademarks and other intellectual property rights.
10. Social media.
This section applies to everyone who interacts with our social media presence. You are therefore viewing this page because you either linked from the social media features on our online and mobile resources (“Internal Social Media Features”) or from comment sections, feeds, and other elements of social media presence viewable on Facebook, Twitter, YouTube, Google+, LinkedIn, or any of the many other available external third party social media platforms we may utilize (“External Social Media Presence”).
11. Submitted materials; User generated content.
All information, ideas, suggestions, concepts, or other materials submitted by you voluntarily or at our request, such as questions sent to us via the “Contact Us” link or user generated content on our Internal Social Media Features or External Social Media Presence (collectively, “Submitted Materials”) may be used by us in any lawful manner, provided that personal information portions of Submitted Materials will only be used as described in our Privacy Statement. By providing Submitted Materials you: (a) represent and warrant that you own or otherwise have all necessary rights to do so and that the Submitted Materials comply with all applicable laws; and (b) grant to us a royalty-free, worldwide, perpetual, irrevocable, non-exclusive, and fully transferable, assignable, and sublicensable right and license to copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, make, sell, export, and otherwise use such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed. We cannot be responsible for maintaining any Submitted Materials that you provide to us; therefore, you should retain copies of all such data and information in your own records.
12. Third party websites and content.
Links from our online and mobile resources.
You may see on the online and mobile resources hyperlinks or pointers to other websites maintained by third parties and we also may provide third party content on the online and mobile resources by framing or other methods (collectively, “Links”). Links are provided for your convenience and information only. The fact that we provide a Link does not mean that we endorse, authorize, or sponsor that website or offering or that we are affiliated with the third party owners or sponsors. Except for the links to our brands and products and services within the online and mobile resources, neither the websites nor parties to which a Link will bring you to are under our control and as such we are not responsible in any way for their availability, content, advertising, products, or materials, including any further links their sites may contain. This means that once you follow an external Link, you are no longer subject to our Privacy Statement. You should, therefore, carefully review the privacy statements and other terms and conditions of use and sale related to any Links. We reserve the right to terminate a Link at any time without notice.
Links to our online and mobile resources.
In general, we do not object to links to our online and mobile resources from third-party sites including social media. If you link to our online and mobile resources, we: (a) reserve the right to object to and delete (or require deletion of) such link at any time, for any reason; and (b) require that you abide by the following rules:
- you may not present the link to our online and mobile resources in any manner that suggests we have any relationship or affiliation with your site or endorse, sponsor, or recommend the information, products, services, or content on your site unless we expressly agree to your doing so in writing;
- we reserve the right to object to any link which uses Trademarks; and
- your link to our online and mobile resources may not in-line, frame, or otherwise incorporate Content unless we grant its express permission in writing.
Links from obscene, scandalous, profane, defamatory, or unlawful sources, or any site that may adversely affect the name, reputation, or goodwill of NUHYDRATION and its products and services are prohibited. In addition, the use of Trademarks or other words or codes identifying NUHYDRATION or its products and services in any “metatag” or other information used by search engines or other information location tools is strictly prohibited unless we grant express permission in writing.
13. Warranty disclaimer; Liability and indemnity.
THE ONLINE AND MOBILE RESOURCES, THEIR CONTENT, YOUR ACCOUNT AND ANY OTHER INFORMATION, FEATURES AND FUNCTIONS, OR PRODUCTS AND SERVICES ON THEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NUHYDRATION, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS, SHAREHOLDERS, AND REPRESENTATIVES (THE “NUHYDRATION PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY. IF YOU ARE DISSATISFIED, YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE ONLINE AND MOBILE RESOURCES, THE CONTENT, AND YOUR ACCOUNT.
THE NUHYDRATION PARTIES HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, (INCLUDING CLAIMS OF DEFAMATION, ERRORS, LOSS OF DATA, OR INTERRUPTION IN AVAILABILITY OF DATA), OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO YOUR USE OF, OR THE INABILITY TO USE, THE ONLINE AND MOBILE RESOURCES, THEIR CONTENT, FEATURES AND FUNCTIONS, YOUR ACCOUNT OR ANY SERVICES THAT YOU ACCESS THROUGH THEM. THESE LIMITATIONS SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE NUHYDRATION PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
EXCEPT AS OTHERWISE PROVIDED HEREIN, IF EITHER YOU OR NUHYDRATION WANT TO BRING A CLAIM OR CAUSE OF ACTION AGAINST THE OTHER UNDER THESE TOS, OR IF ANY DISPUTE ARISES BETWEEN THE PARTIES AS A RESULT OF THESE TOS OR YOUR USE OF OUR ONLINE AND MOBILE RESOURCES, THE CONTENT, OR OUR PRODUCTS AND SERVICES, EACH PARTY AGREES TO USE ARBITRATION AS THE SOLE AND EXCLUSIVE MEANS TO BRING SUCH A CLAIM OR CAUSE OF ACTION OR TO RESOLVE SUCH A DISPUTE. YOU UNDERSTAND THAT BY AGREEING TO THE FOREGOING AND THE MORE SPECIFIC TERMS BELOW, EACH OF YOU AND NUHYDRATION MED SPA ARE GIVING UP THEIR RIGHT TO FORM OR BE A PART OF A CLASS ACTION OR OTHER REPRESENTATIVE LAWSUIT. YOU ARE NOT, HOWEVER, WAIVING YOUR ABILITY TO RECOVER DAMAGES. ALTHOUGH ARBITRATION PROCEDURES ARE DIFFERENT FROM COURT PROCEDURES, AN ARBITRATOR CAN AWARD YOU INDIVIDUALLY THE SAME DAMAGES AND RELIEF AS A COURT, AND JUDGMENT ON THAT AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.
As such, both you and NUHYDRATION specifically agree that:
Except for small claims court cases, all claims, causes of actions and disputes (collectively, “Disputes”) that cannot be resolved by the parties after a good faith effort at negotiation shall be submitted for arbitration administered by the American Arbitration Association (“AAA”). The AAA will apply the Commercial Arbitration Rules to the arbitration of any Dispute pursuant to these Terms, unless you are an individual and use the products and services for personal or household use, in which case the AAA will apply the Consumer Arbitration Rules (excluding any rules or procedures governing or permitting class actions). You can get procedures (including the process for beginning an arbitration), rules, and fee information from the AAA website (www.adr.org).
The party seeking to commence arbitration must first notify the other party in writing at least 30 days in advance of initiating the arbitration. Notice to NUHYDRATION should be sent to Allyson Avila, Gordon & Rees, LLP, Legal Department, 500 Mamaroneck Avenue, Suite 503, Harrison, New York 10528. We will provide notice to your email address(es) and street address(es), if any, associated with your Account at the time the notice is sent. The notice must describe the nature of the claim and the relief being sought.
Regardless of such notice, no arbitration may be commenced if barred by the statute of limitations applicable to the Dispute. The arbitrators shall have no power to award punitive damages or any other damages not measured by the prevailing party’s actual damages or damages in excess of the limitations set forth herein. Even if other portions of these arbitration provisions are held to be invalid or unenforceable, the arbitrators shall not have the power award or impose any remedy that could not be made or imposed by a court sitting in the jurisdiction and venue agreed to by the parties and deciding the matter in accordance with the governing law agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed unless required by legal, audit, or regulatory requirements. The amount of any settlement offer made by either of us prior to arbitration cannot be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. The arbitration proceedings are subject to the U.S. Federal Arbitration Act and hereby declared to be self executing, and it shall not be necessary to petition a court to compel arbitration. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction.
Unless you and NUHYDRATION agree otherwise, the arbitration will occur in U.S. English and take place in Dutchess County, New York. Payment of any fees will be decided by the applicable AAA rules.
Notwithstanding the foregoing, nothing in these Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either you or NUHYDRATION to bring an individual action in small claims court or require NUHYDRATION to arbitrate a Dispute if it is pursuing a claim for IP infringement. NUHYDRATION shall have the right to bring such IP infringement claim in any state or federal court.
Class Action Waiver.
YOU AND NUHYDRATION AGREE THAT EACH MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (COLLECTIVELY, THE “CLASS ACTION WAIVER”). Further, unless both you and NUHYDRATION agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If for any reason the Class Action Waiver set forth above cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable Class Action Waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. For the avoidance of doubt, the parties do not agree to class arbitration or to the arbitration of any claims brought on behalf of others.
Intellectual Property and Computer Trespass Claims.
Notwithstanding the above, the foregoing mandatory arbitration provision shall not apply in the event we bring a claim against you for infringement of our intellectual property rights, computer trespass, or related claims, in which event you agree that venue is proper and personal jurisdiction exists over you in the state or federal courts located in Dutchess County, New York.
15. Term and termination.
16. Miscellaneous provisions.
17. Contact us.