Terms and Conditions
UPVITALS, Terms and Conditions
Last updated: Sep 26, 2022
These Terms and Conditions (the "Terms" or "Terms and Conditions") govern your access or use of the upvitals.com website and any other applications, content, products, and services (collectively, the “Service”) made available by UPVITALS, or its representatives, affiliates, officers and directors (collectively, “UPVITALS” “us,” “we,” or “our”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND UPVITALS.
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service. By accessing or using the Service you confirm your agreement to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
PLEASE NOTE: THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND REQUIRE YOU TO FOREGO JURY TRIALS, CLASS ACTIONS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY AND EVERY KIND, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE OPT-OUT PROCEDURES DESCRIBED BELOW. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THE ARBITRATION AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular program, activity, or promotion. Supplemental terms are in addition to, and shall be deemed a part of, these Terms and Conditions. Supplemental terms shall prevail over these Terms only in the event of a conflict with respect to the applicable Services.
I. Arbitration agreement
By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against UPVITALS on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against UPVITALS and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against UPVITALS by someone else.
Agreement to binding arbitration between you and UPVITALS
You and UPVITALS agree that any dispute, claim, or controversy arising out of or relating to (a) any part of these Terms, or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, will be settled by binding arbitration between you and UPVITALS, and not in a court of law in any jurisdiction.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
You acknowledge and agree that you and UPVITALS are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and UPVITALS agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and UPVITALS each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and governing law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and any supplementary rules (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms & Conditions.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Illinois, without regard to its conflict of laws provisions.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. You can contact AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879.
For claims under $10,000, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. If your claim at or above $10,000, your right to a hearing will be determined by the AAA Rules.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's applicable rules. We will reimburse those fees for claims totaling less than $10,000. Likewise, UPVITALS will not seek attorneys' fees and costs in arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties.
Changes to Arbitration Agreement
Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if UPVITALS changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing UPVITALS written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either by mail. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and UPVITALS in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THESE TERMS AND CONDITIONS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO UPVITALS. To be effective, your Opt-Out Notice must contain your name, address, and signature. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other parts of these Terms and Conditions will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
II. Severability, survival and waiver
If any portion of these Terms and Conditions is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
The failure of UPVITALS to assert a right under these Terms or insist upon compliance with any term or condition of these Terms shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by you.
III. Entire agreement
If you wish to purchase any product or service made available through the Service ("Purchase"), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.
By accessing or using the Service, you represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.
We reserve the right to refuse or cancel your order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order or other reasons.
We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.
V. Availability, errors and inaccuracies
We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.
We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service.
You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.
We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.
VII. Intellectual property
The Service and its original content, features and functionality are and will remain the exclusive property of UPVITALS and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of UPVITALS.
VIII. Links to other web sites
Our Service may contain links to third party web sites or services that are not owned or controlled by UPVITALS.
UPVITALS has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that UPVITALS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
You agree to defend, indemnify and hold harmless UPVITALS and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of a) your use and access of the Service, by you or any person using your account and password, or b) a breach of these Terms.
X. Limitation of liability
In no event shall UPVITALS, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE COMPANY’S CHOICE OF LAW PROVISION SET FORTH ABOVE.
Your use of the Service is at your sole risk. The Service is provided on an "AS IS" and "AS AVAILABLE" basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
UPVITALS, its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.
If you have any questions about these Terms, please contact us.
A customer service representative will answer your questions between 9:00AM and 7:00PM Central Time, Monday through Friday, except holidays.