Last revised on: February 1, 2023
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY.
Promise Nutritionals, Inc. (together with its affiliates, “Promise Guru”, “we”, or “us”) owns and operates the Promise Guru website located at https://promiseguru.co, including subdomains (the “Site”), and markets, promotes, sells and distributes certain products and services through the Site and mobile and desktop or device applications (including iOS and Android applications) and Promise Guru-controlled social media pages (including on Facebook, Instagram, Spotify and Twitter) (collectively, the “Promise Guru Service”). Certain features of the Promise Guru Service may be subject to additional guidelines, terms, or rules, which will be posted on the Promise Guru Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference herein.
THESE TERMS REQUIRE THE USE OF MANDATORY ARBITRATION (SECTION 11.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. SEE SECTION 11.2 FOR THE STEPS YOU MUST FOLLOW IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION.
1.1 Account Creation. In order to use certain features of the Promise Guru Service, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are at least 18 years old. You may not use someone else’s name, or any name, location or other public profile information that violates any third party rights or that is offensive, obscene or otherwise objectionable (in Promise Guru’s sole discretion). Similarly, you may not use any image that violates any third party rights or that is offensive, obscene or otherwise objectionable (in Promise Guru’s sole discretion). You may delete your Account at any time, for any reason, by following the instructions on the Promise Guru Service. Promise Guru may suspend or terminate your Account in accordance with Section 9.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your Account after using the Promise Guru Service. You agree to immediately notify Promise Guru of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security at [email protected]. Promise Guru cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- PROMISE GURU SERVICE; PROMISE GURU PRODUCT MANUAL.
2.1 Promise Guru Service License. Subject to these Terms, Promise Guru grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Promise Guru Service solely for your own personal, noncommercial use. This license includes the right to view content available on the Promise Guru Service. This license is personal to you and may not be assigned or sub-licensed to anyone else.
2.2 Certain Promise Guru Service Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Promise Guru Service, whether in whole or in part, or any content displayed on the Promise Guru Service; (b) you shall not copy, modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Promise Guru Service; (c) you shall not access the Promise Guru Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Promise Guru Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Promise Guru has no obligation to provide any updates or upgrades to the Promise Guru Service, but (unless otherwise indicated by Promise Guru) any such updates, upgrades, and any documentation it provides shall be deemed the “Promise Guru Service,” and shall be subject to the terms and conditions of this Agreement. All copyright and other proprietary notices on the Promise Guru Service (or on any content displayed on the Promise Guru Service) must be retained on all copies thereof.
2.3 Promise Guru Service Modification. Promise Guru reserves the right, at any time, to modify, suspend, or discontinue the Promise Guru Service (in whole or in part) with or without notice to you. You agree that Promise Guru will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Promise Guru Service or any part thereof.
2.4 No Promise Guru Service Support or Maintenance. You acknowledge and agree that Promise Guru will have no obligation to provide you with any support or maintenance in connection with the Promise Guru Service.
2.5 Promise Guru Service Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Promise Guru Service and its content are owned by Promise Guru or Promise Guru’s suppliers. Neither these Terms (nor your access to the Promise Guru Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Promise Guru and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3.1 User Content. “User Content” means any and all video, image, graphics, photos, text, audio recording, content, comments, materials, information or other works that a user submits to, or uses with, the Promise Guru Service (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Promise Guru. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Promise Guru is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Promise Guru an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Promise Guru Service. You hereby irrevocably waive (and agree to cause to be waived) any Claims (as defined below) and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Promise Guru Service to collect, upload, transmit, display, or distribute any User Content (i) that violates or infringes any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or will require Promise Guru to need to obtain licenses from any third party or pay royalties to any third party; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, sexually explicit, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, discrimination, or physical harm or violence of any kind against any group or individual, depicts animal cruelty or extreme violence towards animals, or is otherwise objectionable; (iii) that is harmful to or exploits minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Promise Guru Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Promise Guru Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Promise Guru Service to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Promise Guru Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Promise Guru Service (or to other computer systems or networks connected to or used together with the Promise Guru Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Promise Guru Service; or (vii) use software or automated agents or scripts to produce multiple accounts on the Promise Guru Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Promise Guru Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Promise Guru Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
(c) When interacting with other Promise Guru users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Promise Guru Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Promise Guru is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Promise Guru with any feedback or suggestions regarding the Promise Guru Service or the products or services of Promise Guru (“Feedback”), you hereby assign to Promise Guru all rights in such Feedback and agree that Promise Guru shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Promise Guru will treat any Feedback as non-confidential and non-proprietary. You agree that you will not submit to Promise Guru any information or ideas that you consider to be confidential or proprietary.
You agree to indemnify and hold Promise Guru (and its officers, employees, and agents, successors and assigns) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Promise Guru Service, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Promise Guru reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Promise Guru. Promise Guru will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- THIRD-PARTY LINKS & ADS; OTHER USERS.
5.1 Third-Party Links & Ads. The Promise Guru Service may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Promise Guru is not responsible for any Third-Party Links & Ads. Promise Guru provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads. Promise Guru reserves the right to discontinue access to and/or support for such Third-Party Links & Ads at any time, and for any reason or no reason.
5.2 Other Users. Each Promise Guru Service user is solely responsible for any and all of its own User Content. You acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Promise Guru Service users are solely between you and such users. You agree that Promise Guru will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Promise Guru Service user, we are under no obligation to become involved.
5.3 Release. You hereby release and forever discharge Promise Guru (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Promise Guru Service (including any interactions with, or act or omission of, other Promise Guru Service users or any Third-Party Links & Ads).
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
5.4 Mobile Message Service. The Promise Guru mobile message service (the “Service”) is operated by Promise Nutritionals, Inc., “we”, or “us”. Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. We may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes. We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. Text messages may be sent using an automatic telephone dialing system or other technology. Your consent to receive autodialed marketing text messages is not required as a condition of purchasing any goods or services. If you have opted in, the Service provides updates, alerts, information, promotions, specials, cart reminders, and other marketing offers from Promise Nutritionals, Inc. via text messages through your wireless provider to the mobile number you provided. Message frequency is recurring. We will inform customers of a change in number. You’ll receive a one-time opt-out confirmation text message. If you have subscribed to other Promise Nutritionals, Inc. mobile message programs and wish to cancel, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, email [email protected]. We may change any short code or telephone number we use to operate the Service at any time. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you change your mobile phone number, you agree to opt out of the Service prior to changing your mobile number. You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the Service or from you providing us with a phone number that is not your own. You agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
PURCHASING PRODUCTS FROM PROMISE GURU.
6.1 Product Representations. Promise Guru reserves the right, without prior notice, to discontinue or change specifications and prices on products without incurring any obligation to you. Promise Guru takes reasonable precautions to try to ensure that the prices quoted on the Promise Guru Service are correct, and to describe the items available on the Promise Guru Service as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that Promise Guru does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Promise Guru Service will match the actual product that you receive. If a product described on the Promise Guru Service is not as described when you receive it, or the packaging on the Promise Guru Service does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy, which is listed on the Site. Promise Guru’s descriptions of, or references to, products not owned by Promise Guru do not imply endorsement of that product, or constitute a warranty by Promise Guru.
6.2 Pricing Errors and Omissions. Please be aware that prices, availability and other purchase terms are subject to change without prior notice. We make every effort to ensure the accuracy of the information on the Promise Guru Service and to correct errors once discovered. Promise Guru reserves the right to revoke any stated offer in order to correct any errors, inaccuracies, or omissions, including after an order has been submitted, even if it has been confirmed or your credit card has been charged. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.
6.3 Order Placement and Acceptance. If you order a product, payment must be received by Promise Guru prior to Promise Guru’s acceptance of the order. Promise Guru may require additional information regarding your order if you have not provided all of the information required, and may cancel or limit an order any time after it has been placed.
Your order is expressly conditioned on acceptance of these Terms. Once a properly completed order, your authorization and a form of payment has been received, we will promptly locate the item(s) you have ordered to place them in line for shipment. All items are subject to availability. We will promptly inform you if the product(s) you have ordered are not available and we may offer you alternative product(s) of equal quality and value.
Unless otherwise agreed by Promise Guru in its sole discretion, Promise Guru does not accept orders from dealers, wholesalers, or customers who intend to resell items offered on the Promise Guru Service. If Promise Guru discovers that you are placing orders with the intent to resell items offered on the Promise Guru Service, we will immediately cancel your order, suspend or terminate your Account, and pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, Promise Guru may report you to law enforcement authorities.
6.4 Shipping and Risk of Loss. Promise Guru may add applicable shipping and handling fees to your order in accordance with its shipping and handling terms. Unless otherwise noted, Promise Guru will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although Promise Guru may provide delivery or shipment timeframes or dates, you understand that those are Promise Guru’s good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. If your order will be delayed (either from the date specified at the time of order or, if no date was specified, beyond thirty days from the date of your order) Promise Guru will use good faith efforts to contact you. If Promise Guru cannot contact you or you no longer wish to receive the item, Promise Guru will cancel the order and promptly refund the amount tendered, and will do so within seven business days if made using a credit card. Promise Guru shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery. All items purchased from the Promise Guru Service are delivered to shipment carriers. The risk of loss and title for such items pass to you upon our delivery to the carrier. Promise Guru may reject orders where the stated delivery address is outside the United States.
6.5 Sales and Other Taxes. Promise Guru collects taxes on sales of some kinds of products shipped to certain jurisdictions, and on sales of some kinds of services provided to certain jurisdictions. Some taxing authorities also require the taxable amount to include any shipping and handling charges, while others tax only merchandise.
6.6 Payment Information. In ordering products through the Promise Guru Service, by telephone, or otherwise, you agree to provide only true, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or for which you are authorized to provide. Promise Guru shall have the right to cancel your order or to suspend or terminate your Account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to Promise Guru, or for any other reason that we, in our sole discretion, deem appropriate. You agree that your placement of an electronic order on the Promise Guru Service is sufficient to satisfy any applicable statute of frauds, and no further writing is required.
6.7 International Orders. Promise Guru does not directly sell certain Promise Guru products in any jurisdiction other than the United States of America, as these products may not be approved for sale in other jurisdictions.
6.8 Automatic Renewal Terms. If you are placing an order online or by telephone as part of our automatic renewal program, your membership in the program will remain in effect until it is cancelled. We may, in our sole discretion, terminate your membership in the program at any time without notice to you.
IF YOU ARE A MEMBER OF OUR AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH SHIPMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SUCCESSIVE SHIPMENT AND/OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR AUTOMATIC RENEWAL PROGRAM, YOU MAY DO SO BY CALLING A CUSTOMER SERVICE REPRESENTATIVE AT THE TELEPHONE NUMBERS LISTED ON THE WEBSITE UNDER CUSTOMER SERVICE.
You are obligated to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid (e.g., loss or theft). Changes to such information can be made by calling a customer service representative at the telephone numbers listed on the Promise Guru Service under Contact Information below. If you are participating in our automatic renewal program using a credit card and your credit card fails to process for a subsequent shipment, Promise Guru may convert your account to a pay-by-check plan. If your account has been converted to a pay-by-check plan, you will receive an invoice along with your shipment. Invoiced items not paid within 30 days of receipt will be considered past due and Promise Guru will send you communications to collect past due balances. If you fail to timely update your credit card information or fail to timely pay by check, your membership in our automatic renewal program may be terminated and your account may be sent for collection.
6.9 Return/Refund Policy. You may return items in accordance with the Return Policy instructions that accompany your product shipments or, if you are uncertain about your right to return the product, you may also call Customer Service at +1 (800) 785.6070 for assistance.
THE PROMISE GURU SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. PROMISE GURU (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE PROMISE GURU SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF, DESPITE THESE DISCLAIMERS, APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PROMISE GURU SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE EXTENT THAT ANOTHER PARTY MAY HAVE ACCESS TO OR VIEW CONTENT ON YOUR DEVICE, YOU ARE SOLELY RESPONSIBLE FOR INFORMING SUCH PARTY OF ALL DISCLAIMERS AND WARNINGS IN THIS AGREEMENT.
THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE PROMISE GURU SERVICE IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION BEFORE STARTING ANY NEW TREATMENT. YOUR USE OF THE PROMISE GURU SERVICE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE PROMISE GURU SERVICE.
PROMISE GURU AND ITS AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE PROMISE GURU SERVICE. WHILE PROMISE GURU STRIVES TO KEEP THE INFORMATION ON THE PROMISE GURU SERVICE ACCURATE, COMPLETE, AND UP-TO-DATE, PROMISE GURU CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE PROMISE GURU SERVICE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROMISE GURU SERVICE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROMISE GURU OR THROUGH THE PROMISE GURU SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- LIMITATION ON LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROMISE GURU (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE PROMISE GURU SERVICE, NO MATTER HOW CAUSED AND ON ANY THEORY OF LIABILITY, AND EVEN IF PROMISE GURU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE PROMISE GURU SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF PROMISE GURU, ITS SUPPLIERS OR DEALERS, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR OF ANY TYPE OF USE INTENDED BY YOU. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU ACKNOWLEDGE THAT THESE LIMITATIONS REFLECT A REASONABLE ALLOCATION OF RISK.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- TERM AND TERMINATION.
Subject to this Section, these Terms will remain in full force and effect while you use the Promise Guru Service. We may suspend or terminate your rights to use the Promise Guru Service (including your Account) at any time for any reason (or no reason) at our sole discretion, including for any use of the Promise Guru Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Promise Guru Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Promise Guru will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 11.
- COPYRIGHT POLICY.
Promise Guru respects the intellectual property of others and asks that users of our Promise Guru Service do the same. In connection with our Promise Guru Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Promise Guru Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Promise Guru Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Promise Guru is:
Designated Agent: Fred E. Tannous
Email: [email protected] Address of Agent: 609 Deep valley Drive, Suite 200, Rolling Hills, CA 90274 Telephone: (800) 785-6070
11.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Promise Guru Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty calendar days following our posting of notice of the changes on our Promise Guru Service. These changes will be effective immediately for new users of our Promise Guru Service. Continued use of our Promise Guru Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 ARBITRATION AGREEMENT: PRE-DISPUTE, MANDATORY BINDING ARBITRATION, AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
(a) Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, Promise Guru, and/or any involved third party relating to your Account, your use of the Promise Guru Service, your relationship with Promise Guru, your purchase or use of any Promise Guru product, or these Terms. This includes any and all claims that relate in any way to your attempted use of Promise Guru products, and any act or omission by Promise Guru or any third party related to your use or attempted use of Promise Guru products. You, Promise Guru, or any involved third party may pursue a Claim. Promise Guru agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Promise Guru. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.
(b) Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Promise Guru both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (e.g. non-class) basis. Promise Guru will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court.
(c) Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Promise Guru, you will first give Promise Guru an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description to Promise Nutritionals, Inc., 609 Deep Valley Drive, Suite 200, Rolling Hills, CA 90274, Attn: General Counsel. You agree to negotiate with Promise Guru in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within sixty (60) days after Promise Guru’s receipt of your written dispute, you agree to the dispute resolution provisions below.
(d) Commencement of Arbitration. You and Promise Guru agree to commence any arbitration proceeding within one (1) year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after one (1) year shall be barred.
(e) Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Promise Guru agree.
(f) Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen according to JAMS Comprehensive Arbitration Rules and Procedures (currently located at https://www.jamsadr.com/rules-comprehensive-arbitration/) and the arbitration rules of the selected tribunal shall apply. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms including this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Promise Guru.
(g) Arbitration Fees. Promise Guru shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
(h) Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Although Promise Guru may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, Promise Guru agrees that it will not seek such an award, unless your Claims are determined by the arbitrator to be frivolous or malicious. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the Federal Arbitration Act.
(i) Miscellaneous. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Promise Guru and shall not be modified except in writing by Promise Guru.
(j) Amendments. Promise Guru reserves the right to amend this arbitration provision at any time. Your continued use of the Promise Guru Service, purchase of a Promise Guru product, or use or attempted use of a Promise Guru product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Promise Guru will provide you notice and an opportunity to opt-out. Your continued use of the Promise Guru Service, purchase of a Promise Guru product, or use or attempted use of a Promise Guru product, is affirmation of your consent to such material changes.
(k) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
(l) Severability. If any part or parts of this arbitration agreement set forth in this Section 11.2 (this “Arbitration Agreement”) are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire Arbitration Agreement shall be rendered null and void and shall not apply.
(m) Right to Waive. Any or all of the rights and limitations set forth in this arbitration agreement may be waived by the party against whom the Claim is asserted. Such waiver shall not waive or affect any other portion of these arbitration provisions.
(n) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Promise Guru.
(o) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief from a court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under these arbitration provisions.
(p) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to these arbitration provisions.
(q) Courts. In any circumstances where the foregoing arbitration provisions permit the parties to litigate in court, (i) the parties hereby submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California, for such purpose; and (ii) this Agreement shall be governed by the laws of the State of California, without reference to its conflict of law principles.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE OF FIRST USE OF THE PROMISE GURU SERVICE, OR FROM PURCHASE, USE, OR ATTEMPTED USE OF A PROMISE GURU PRODUCT (WHICHEVER COMES FIRST), AS THE CASE MAY BE, BY WRITING TO PROMISE NUTRITIONALS, INC., 609 DEEP VALLEY DRIVE, SUITE 200, ROLLING HILLS, CA 90274, ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PROMISE GURU SERVICE OR PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE APPLICABLE THIRTY (30) DAY PERIOD AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PROMISE GURU SERVICE OR PRODUCT. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
11.3 Export. The Promise Guru Service and Promise Guru’s products and services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Promise Guru, or any products utilizing such data, in violation of the United States export laws or regulations.
11.4 Disclosures. Promise Guru is located at the address in Section 11.9. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.5 Electronic Communications and Signatures. The communications between you and Promise Guru use electronic means, whether you use the Promise Guru Service or send us emails, or whether Promise Guru posts notices on the Promise Guru Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Promise Guru in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Promise Guru provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
You further acknowledge and agree that by clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “I ACCEPT” or such similar links as may be designated by Promise Guru, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement and any hyperlinks contained herein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR SERVICES OFFERED BY PROMISE GURU. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
11.6 Communications with Promise Guru.
(a) You acknowledge that telephone calls to or from Promise Guru may be monitored and recorded and you agree to such monitoring and recording.
(b) You verify that any contact information provided to Promise Guru, including, but not limited to, your mailing address, shipping address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Promise Guru. You acknowledge that by voluntarily providing your telephone numbers to Promise Guru, you expressly agree to be contacted at the telephone numbers you provide.
(c) You consent to receive e-mails, pre-recorded voice messages, autodialed calls and/or text messages by or on behalf of Promise Guru relating to this Agreement, any purchase or transaction with Promise Guru, matters related to your Account (including debt collection), and promotions regarding Promise Guru products. These communications may be made by or on behalf of Promise Guru, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that Promise Guru will not be responsible for these charges.
(d) Promise Guru may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses and phone numbers provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide Promise Guru notice within thirty days of any change to your contact information through your Account or email us at [email protected]. Your consent to this communications provision is not required to make any purchase with Promise Guru.
11.7 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Promise Guru Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Promise Guru is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Promise Guru’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Promise Guru may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.8 Copyright/Trademark Information. Copyright © 2022 Promise Nutritionals, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Promise Guru Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.9 Contact Information:
Promise Nutritionals, Inc.
609 Deep Valley Drive
Rolling Hills, CA 90274
+1 (800) 785-6070