Last Updated: September 30, 2016
PLEASE READ THE FOLLOWING NURTURIE, LLC, TERMS AND CONDITIONS CAREFULLY BEFORE USING ANY ASPECT OF THE SITE. IF YOU DO NOT AGREE TO THE AGREEMENT IN ITS ENTIRETY, YOU ARE NOT AUTHORIZED TO USE THE NURTURIE OFFERINGS IN ANY MANNER OR FORM.
Nurturie reserves the right to change or modify these Terms at any time and in our sole discretion. Notice of any changes may be made by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms, such method of notice subject to Nurturie’s sole discretion. We encourage you to visit and review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
All of our products and services are backed by a freshness and quality guarantee. If you are dissatisfied for any reason, we want to make it right. Just call us at 212-653-0859 or contact us via e-mail at firstname.lastname@example.org. Nurturie may require the return or photo documentation of the product with which you are dissatisfied before we substitute an acceptable item, issue a credit voucher or give you cash back.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Nurturie account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
In order to access and use certain areas or features of the Sites, you will need to register for a Nurturie account. By creating an account, you agree that you are solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your password and all use or charges incurred from use of the Sites with your password. You agree that you are responsible for, and agree to pay promptly, all charges to your account, including applicable taxes and purchases by you or anyone you allow to use your account and password to access the Nurturie. You agree to notify Nurturie promptly of any unauthorized use of your password and you will remain liable for any use of the Sites and access to the Products until you notify Nurturie of the unauthorized use of your password. By creating an account, you also agree to (a) provide accurate, current and complete account information, and (b) maintain and promptly update from time to time as necessary your account information, including address, payment information, telephone number, and e-mail address. You can update your information in the Account area on our Web site or contact our Customer Service department. Please do not send credit card or other payment information via email. You will comply with all laws applicable to your activities associated with your Nurturie account, your Nurturie activities, and your purchases.
By creating a Nurturie account, you also consent to receive electronic communications from Nurturie (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information). We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein. You agree that any electronic communication sent to you by Nurturie shall satisfy any legal obligation that notice be made in writing, whether set by statute or by contract. We advise that you save such notices, either in printed hard copy, or electronic form.
5.1. Pricing and Availability
At Nurturie we believe in offering our customers the best product at the best price. We strive to provide you with the freshest products to assure you the highest quality. Although our goal is to fulfill 100% of each order, given the perishable nature of our products, from time to time products may be unavailable due to market conditions beyond our control or to quality that is below our standards. At times, when we have an item that's very similar to the item you ordered, we may, and reserve the right to, make a substitution. If you're not happy with the replacement, please email us at email@example.com. Nurturie reserves the right to limit your order or the quantity of a particular product that you may order, as well as to reject all or part of an order, and/or to discontinue offering certain Products at any time.
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your order (discussed in Section 5.2, below), we will provide advance notice of such changes in accordance with Section 4. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of meals to you after our delivery of such notice will confirm your acceptance of such changes.
5.2. Dietary Preferences and Restrictions
Nurturie uses USDA databased information concerning foods, information provided by manufacturers for prepared/prepackaged foods used in our recipes, and a reputable software service and database to create nutritional information published for and labeled on our meals. As such, Nurturie does not guarantee the accuracy of any nutritional information provided by Nurturie. Nurturie will not be responsible for any loss or damage resulting from your reliance on nutritional information, nor for ensuring that whatever foods you purchase and consume are in accordance with your respective dietary needs or restrictions. Nurturie stores, portions, and packs meals containing all eight (8) major US allergens (milk, wheat, egg, soy, fish, shellfish, peanuts, and treenuts). Although Nurturie takes precautions to limit the potential for cross-contamination, cross-contamination may occur between food products, allowing meals to contain any or all of these allergens. Nurturie also uses facilities which may not be a nut-free environment.
To receive delivery, you must live in a residential apartment or home, or receive permission from employer or business owner to receive shipments from a business address. Shipments may not be scheduled to business addresses for Saturday deliveries. Anyone at the delivery address who receives the delivery from Nurturie is conclusively presumed to be authorized to receive the delivery. If you, your doorman, and your alternate receiver are not present, we will use commercially reasonable efforts to contact you. In certain areas, Nurturie may offer unattended delivery.
If something is missing from your order, please call our Customer Service department at 212-653-0859 or email us at firstname.lastname@example.org.
5.3. Free Trials
From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration.
ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 5.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
5.4. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchases (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). Nurturie reserves the right to execute a $1 authorization or temporary charge on your credit card to verify that your account is valid and that the information you provide to Nurturie is correct. This authorization does not cost you anything and will expire in a few days (debit card authorizations typically expire in 24-48 hours depending on your bank's rules). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. Nurturie may charge a fee of $2 should a payment made via credit card be declined resulting in the need for alternate payment or exception processing. In the event you want to change or update payment information associated with your Nurturie account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
5.6. Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will display notice of the charges applicable to you before you make your purchase.
Generally, shipping is handled by Nurturie or by a third party courier. When you purchase a Product from Nurturie, or set a schedule for delivery of your purchase, any shipping times shown on the Sites are estimates only. Actual delivery times may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
Nurturie uses refrigerated shipping solutions to maintain the quality and integrity of your products. Nurturie uses third-party delivery companies to deliver meals to its customers. We carefully package each delivery to ensure that food products will remain fresh in your unopened delivery box. However, you as the customer are the ultimate arbiter of freshness and should always inspect your delivery bags to confirm the contents arrive fresh. You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your delivery to confirm that the meal ingredients arrive in a cool, refrigerated condition. We recommend that you use a thermometer to ensure that the temperature zone within the container in which any meat, poultry or seafood Product is located is 40° F or below. In the unlikely event that such temperature zone is above 40° F, or you have any other reason to believe that any other Product in your delivery is not suitable for consumption, contact us at email@example.com and discard the item. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe washing, handling, preparation, storage, cooking, use and consumption of the Products following delivery. We recommend that you follow the USDA’s instructions on safe food handling, which can be found here. We also recommend that all reheating instructions be followed and that you use a food thermometer to ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door. Our meal ingredients are packaged with insulated liners and gel packs and will typically remain cold and fresh for several hours, but depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for proper storage of your meal ingredients prior to consumption. In certain areas, you may be able to provide additional delivery instructions when setting up your Nurturie account, such as requesting that your delivery be left with a doorman or neighbor. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
In the case of inclement weather or other unforeseen delivery complications beyond our control, we will attempt to deliver your Order as soon as reasonably possible, but it may be necessary to make adjustments to our delivery schedule, which will cause us to suspend chosen delivery dates and times. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your meal is not feasible, we will cancel your meal delivery for the period so affected and issue you a credit or refund of the purchase price for that meal delivery.
5.8. No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
5.9. Returns and Refunds
If you are dissatisfied with a meal for any reason relating to the quality of the product and delivery service, please contact us at firstname.lastname@example.org within seven (7) days of the date you received the meal and we will either replace the meal at our expense or, depending on the circumstances, provide you a full or partial credit or refund of the purchase price for that meal. We may require the return or photographic documentation of any meal ingredient with which you are dissatisfied before we provide you a replacement, credit or refund.
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Nurturie logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Nurturie or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Nurturie or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Nurturie or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Anthony Hilton, Esq. Attorney at Law
Address: 141 E. 89th Street, New York, NY 10128
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Nurturie,” the Nurturie logo and any other Nurturie Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Nurturie and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Nurturie” or any other name, trademark or Product or service name of Nurturie without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Nurturie and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Nurturie.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Nurturie or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Nurturie logo or other proprietary graphic of Nurturie to link to the Sites without our express written permission. Further, you may not use a Nurturie logo or other proprietary graphic of Nurturie to link to any other site of any kind. Additionally, you may not use, frame or utilize framing techniques to enclose any Nurturie trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Nurturie makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information or material contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Nurturie is not responsible or liable in any manner for such interactions or Third Party Content.
You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Sites. You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
• Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
• Disseminate or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, grossly offensive, vulgar, threatening, or malicious;
• Disseminate or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail;
• Interfere with, disrupt, or attempt to gain unauthorized access to, use or attempt to use another user’s account without authorization from such user and the Company;
• Create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication;
• Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
• Interfere with, disrupt, or attempt to gain unauthorized access to any other computer network;
• Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;
• Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;
• Develop any third party applications that interact with User Content or the Sites without our prior written consent;
• Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
• Disseminate or transmit viruses, Trojan horses, or any other malicious code or program;
• Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms;
• Disseminate or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person; or
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, comments, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others and to the general public. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites, and that Nurturie neither endorses, condones, supports or otherwise affiliates itself without your content, or the User Content you may be viewing, and that you indemnify Nurturie against any liability or action for your User content, and that you waive any claim of liability or action against Nurturie for any User Content to which you may have had access..
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
• User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
• User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
• User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
• User Content that impersonates, or misrepresents your affiliation with, any person or entity;
• User Content that references or depicts Nurturie or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Nurturie employee or paid blogger);
• User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
• User Content that contains any private or personal information of a third party without such third party’s consent;
• User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
• User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
• User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Nurturie or others to any harm or liability of any type.
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of, and replacing, any User Content you post or store on the Sites at your sole cost and expense.
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Nurturie’s Facebook page, Instagram page or Twitter feed), you hereby grant Nurturie a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Nurturie through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Nurturie to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Nurturie, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Nurturie. Nurturie shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NURTURIE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NURTURIE OR ANY OF THE OTHER NURTURIE PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM NURTURIE, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO NURTURIE’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF NURTURIE AND THE OTHER NURTURIE PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE NURTURIE MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF MEAL INGREDIENTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE NURTURIE AND THE OTHER NURTURIE PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE NURTURIE AND THE OTHER NURTURIE PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH NURTURIE PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, 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.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH NURTURIE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
19.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Nurturie agree (a) to waive your and Nurturie’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Nurturie’s respective rights to a jury trial. Instead, you and Nurturie agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
19.2. No Class Arbitrations, Class Actions or Representative Actions
You and Nurturie agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Nurturie and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Nurturie agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Nurturie agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
19.3. Federal Arbitration Act
You and Nurturie agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
19.4. Notice; Informal Dispute Resolution
You and Nurturie agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Nurturie shall be sent by certified mail or courier to Nurturie, LLC, Attn: Anthony Hilton, Esq. Attorney at Law, 141 E. 89th Street, New York, NY 10128. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Nurturie account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Nurturie cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Nurturie may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Nurturie agree that any Dispute must be commenced or filed by you or Nurturie within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Nurturie will no longer have the right to assert such claim regarding the Dispute). You and Nurturie agree that (a) any arbitration will occur in the State of New York, County of New York, Borough of Manhattan, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
19.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
19.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
19.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: Nurturie, Inc., Attn: Anthony Hilton, Esq. Attorney at Law, 141 E. 89th Street, New York, NY 10128. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Nurturie account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8, 9 (second paragraph only), 9 through 24.
These Terms constitute the entire agreement between you and Nurturie, relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Nurturie. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Nurturie’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.