Last Updated: May 15, 2024
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW IN SECTION 19 ENTITLED “DISPUTE RESOLUTION BY MANDATORY, BINDING ARBITRATION”, REQUIRES THE USE OF MANDATORY, BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND NESTLÉ ARE EACH GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. DETAILS ARE SET FORTH BELOW. PLEASE REVIEW CAREFULLY.
Nestlé may revise these Terms and Conditions by updating this posting so be sure to check back regularly. By continuing to use this website after these terms have changed, you indicate your agreement with the revised terms.
1. Acceptance of Terms
This website is published, owned, and operated by Nestlé BGS, LLC, an affiliate of Nestlé Health Science U.S., or its affiliates, subsidiaries, and related entities (collectively, “Nestlé,” “we,” “us,” “our,” or “Company”). These Terms and Conditions (“Terms”) govern your access to and use of this website and all other websites, mobile applications, or online services where these Terms are posted (collectively, the “Services”). Nestlé maintains the Services for your personal education, information, information, entertainment, and communication.
By visiting, accessing, browsing, submitting information to, creating an account, using and/or shopping on the Services, you (referred to throughout the Terms as “you”) agree and acknowledge that you have read, understood, and agree to be bound by these Terms and to comply with all applicable laws. If you do not agree with these Terms, please do not use the Services.
2. Eligibility to Access the Services
You represent that you are at least eighteen (18) years old and that you have the authority to accept these Terms. If you choose to create an account in connection with your use of the Services, you must provide accurate registration information. If we believe that your information is incorrect or incomplete, we may prevent you from accessing the Services, terminate or suspend your account, or otherwise limit or restrict your use or Services.
Your use of the Services is limited to non-commercial, personal use only. You may not, however, distribute, modify, transmit, reuse, repost or use the content of the Services for public or commercial purposes, including the text, images, audio and video without Nestlé’s written permission. We grant you temporary access to the Services and a limited, non-exclusive, revocable, and nontransferable license to access and use the information contained within the Services solely for your personal use and in accordance with these Terms. We may limit the number of times you can visit or log in to the Services within a certain period of time. We also reserve the right, in our sole discretion, to terminate your access to the Services, or any portion thereof, at any time, without notice. You agree not to access the Services by any means other than through the interface that is provided by Nestlé for use in accessing the Services.
3. Availability of the Services
We are constantly seeking to improve and enhance the Services and, unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to these Terms. You understand and agree that the Services are provided “AS-IS” and that Nestlé assumes no responsibility for the accuracy or availability of the Services or any information posted on them by other users, or the timeliness, deletion, delivery, or failure to store any user communications or personalization settings.
Nestlé reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any parts thereof) with or without notice, in Nestlé’s sole discretion. You understand and agree that Nestlé shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services. Temporary interruptions of the Services may occur as normal events.
To access the Services, you must have access to the Internet and related equipment or software, which is your responsibility to obtain at your own expense. You acknowledge that you are solely responsible for upgrading and configuring your systems to be, and remain, compatible with the Services. Nestlé has no control over third-party networks you may access during your use of the Services; therefore, delays and disruption of other network transmissions are completely beyond Nestlé’s control.
4. Privacy Policy
For information about how we collect, use, and share Personal Information, please refer to our Privacy Policy.
5. User Accounts and Account Security
The Services may require or offer you the ability to create an account and you may need a username, account name, or password (“Account Information”). You are responsible for maintaining the confidentiality of your Account Information. You agree to accept responsibility for all activities that occur under your Account Information, and to notify Nestlé immediately if the confidentiality of your Account Information is compromised. Nestlé will not be liable for any loss that you incur as a result of someone else using your Account Information. To protect the security of the Services and your account, we may, at our sole discretion, terminate or suspend your account, change your username or password, request additional information before we authorize transactions on your account, or take other reasonable actions.
6. Your Obligations
In consideration of your use of the Services, you agree to use the Services as intended by Nestlé, and to refrain from any misuse of the Services, or any other services or systems made available to you by Nestlé. Misuse of the Services includes, but is not limited to, any action that compromises the Services or the services, systems, or information contained therein. Additionally, you agree that you will not:
· use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of them;
· alter or modify the Services;
· use the Services, this website, or its contents for any purpose that is unlawful or prohibited by these Terms;
· resell any aspect of the Services, including any goods purchased on or through the Services;
· share, reproduce, duplicate, copy, sell, trade, exploit, or use the Services for any commercial use (other than the purchase of products and services offered for sale, for your own, personal use) without the prior written authorization of Nestlé;
· bypass or circumvent measures we may use to prevent, interfere, or limit access to the Services;
· use the Services to send altered, deceptive, or false source-identifying information;
· use the Services to intercept, collect or store Personal Information, including about other users or any individual associated with Nestlé;
· attempt to gain unauthorized access to any other user’s account, computer systems or networks associated with the Services;
· access, monitor, or copy any content or information on the Services using any robot, spider, scraper or other automated means or any manual process;
· decompile, disassemble, or reverse engineer any of the software or content used in any part of the Services;
· introduce or send any virus, Trojan horses, worms, logic bombs or use any malicious programs or techniques in connection with the Services;
· impersonate or attempt to impersonate Nestlé, a Nestlé employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
· overload or crash the Services;
· attack the Services via a denial-of-service attack or a distributed denial-of-service attack;
· use the website for commercial solicitation purposes;
· post or transmit through the Services any material which (in Nestlé’s sole discretion) is unlawful, threatening, harassing, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability, otherwise violates any law, could be detrimental to Nestlé, or provides support or resources to any organization designated by any government as a foreign terrorist organization;
· engage in excessively high-volume data transfers or bandwidth use, including without limitation by hosting a web server, internet relay chat server or any other server via any use of the Services;
· infringe the copyright, trademark, patent right, trade secret or other proprietary right of anyone, including rights of publicity and privacy, of the Services;
· use the Services to post or transmit:
o any content for which you were compensated or granted any consideration by any third party;
o any information you are prohibited from transmitting by contract or confidential relationship;
o any material that exploits or harms minors (any person under the age of 18) in any way, intentionally or unintentionally, including by exposing minors to content that is inappropriate, providing minors’ personally identifiable information, or seeking to obtain personally identifiable information from minors.
You agree that Nestlé shall have the right, but not the obligation, to monitor the content on the Services and to remove any material that Nestlé, in its sole discretion, finds to be in violation of the provisions herein or otherwise objectionable. Without limiting the foregoing, Nestlé, and its designees, shall have the right to remove any material that violates these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any such material, including any reliance on the accuracy, completeness, or usefulness of such material. In this regard, you acknowledge that you may not rely on any material created or linked to by Nestlé or submitted to Nestlé.
7. Termination
Nestlé reserves the right to disable, terminate or restrict your use of the Services at any time, without notice, for any or no reason whatsoever. Nestlé reserves the right to determine, in its sole discretion, whether your engagement with the Services is appropriate and complies with these Terms. Except as provided under Section 12 (Claims of Copyright Infringement/DMCA Notices), Nestlé may remove any materials you submit to the Services, without prior notice and at Nestlé’s sole discretion. Any rights you have in accessing the Services shall terminate upon the deactivation or termination of your account or the termination of these Terms with you.
8. Trademark
The trademarks, logos, characters, and service marks (collectively "Trademarks") displayed on the Services belong to Nestlé or are used with permission. Nothing contained on the Services or should be construed as granting any license or right to use any Trademark displayed on the Services or this website. Your use/misuse of the Trademarks displayed on Services, or any other content on Services, except as provided in these Terms, is strictly prohibited. You are also advised that Nestlé will aggressively enforce its intellectual property rights to the fullest extent of the law, including criminal prosecution.
9. Intellectual Property Rights
The Services, including any text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Nestlé or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors.
8.1. Your License to Use the Services
Nestlé grants you a limited, non-exclusive, non-transferable, revocable license to use the Services for your personal, household, informational, and non-commercial purposes only, subject to the other terms and conditions set out in these Terms.
Title to any copyright, trademark, patent, trade secret, logos, characters, service marks, or other intellectual property right in the Services remains with Nestlé or its licensors. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate the intellectual property rights of Nestlé or a third party.
All rights not expressly granted herein are reserved to Nestlé and its licensors. You acknowledge that you do not acquire any ownership or other intellectual property rights, including to any copyright, trademark, patent, trade secret, logos, characters, service marks, by accessing or using the Services. Except as expressly authorized by Nestlé, you may not modify, publish, transmit, display, reproduce, distribute, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part.
If any part of the Services includes the provision of a specific IP address, URL or other designation for your use, you acknowledge and agree that you will not receive any proprietary or ownership rights in such designation, and that we may change your IP address, URL or other designation at any time.
8.2. User-Generated Content
The Services may have features that let you submit content or communicate with Nestlé, other users, agents, the general public, and other individuals, including through email, posting comments, reviews or ratings, participating in chats or forums, navigating the Services, and uploading files. Any questions, comments, suggestions, ideas, plans, notes, drawings, images, photographs, pictures, personal information, and other information and/or materials you submit via the Services are referred to here as “User-Generated Content.”
By sharing User-Generated Content on the Services, you warrant and represent that you own or control all of the rights necessary to use your User-Generated Content. You grant Nestlé a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, transmit, create derivative works from, distribute, disclose and publicly display and perform your User-Generated Content for commercial purposes in any media now known or hereafter developed. Without limiting the foregoing, Nestlé is specifically free to use any ideas or concepts contained in any such User-Generated Content for any purpose whatsoever, including, but not limited to, developing, manufacturing, advertising and marketing products. Any such use is without compensation to the person submitting. Nestlé does not waive any rights they may have to similar or related ideas previously known or developed by their employees, or obtained from sources other than you.
By posting User-Generated Content that contains images, photographs, pictures, or that may otherwise be graphical in whole or in part (“Images”), you represent that each person depicted in any Image has provided consent to the distribution, public display and reproduction of any Image. You are fully responsible for any damage or harm resulting from your User-Generated Content, and we assume no liability for User-Generated Content posted or submitted by you or other users.
8.3. Feedback
All communications, feedback, questions, comments, suggestions, proposed features, and the like (collectively, “Feedback”) you submit to us through the Services or otherwise will be
considered non-confidential and non-proprietary with regard to you, but we reserve the right to treat any such Feedback as Nestlé confidential information.
By submitting Feedback to us, you assign to us, free of charge, a perpetual, irrevocable, worldwide license to create derivative works, distribute, reproduce, perform, display, and otherwise use, any intellectual property rights or proprietary information and ideas contained within any such Feedback, including without limitation the right to sublicense or assign any of the foregoing. We will be entitled to use any Feedback you submit to us, and any ideas, concepts, know-how or techniques contained in any such Feedback, for any purpose whatsoever, including but not limited to developing and marketing products and services using such Feedback without restriction and without notifying or compensating you in any way.
Please do not send us any information or materials for which you do not wish to grant us such rights, including, without limitation, any confidential information, or any original creative materials such as product ideas, written materials, photographs, original artwork, or computer code. You are responsible for the information and other content contained in any Feedback you submit to us, including, without limitation, their truthfulness and accuracy.
10. Third-Party Sites and Content
The Services may contain links to websites controlled or operated by persons and companies other than Nestlé, persons other than Nestlé may display and make available content, data, services and products through the Services, or Nestlé may link to, host, or operate websites as a service for retailers or our other partners (“Third-Party Sites”). You acknowledge that Nestlé is not a publisher of, does not control or endorse, and is not responsible or liable for, any such Third-Party Sites or their content, we do not control Third-Party Sites and we are not responsible for their content, their privacy practices, or any other policies provided on those websites. You are responsible for ensuring that your use of Third-Party Sites complies with any applicable terms of service or other agreements. Your linking to any Third-Party Site is at your own risk. Please be mindful of this as you link to Third Party Sites.
11. Third-Party Applications
You acknowledge that your access and use of any third-party applications or software on or through the Services and third-party content (the “Third-Party Applications”) is at your discretion and risk, and Nestlé has no liability to you arising from your use of the Third-Party Applications. Nestlé hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and you agree to indemnify and hold Nestlé harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications.
12. Claims of Copyright Infringement/DMCA Notices
Nestlé respects the Intellectual Property Rights of others and is committed to complying with U.S. Copyright laws. Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). The DMCA provides recourse for owners of copyrighted material who believe their rights under U.S. copyright law have been infringed on the Internet.
If you believe that material available on the Services or residing on our system or network infringes a copyright of yours or a third party for whom you are authorized to act, please notify our Designated Agent by using the procedures described in the DMCA and below. After receiving notice, we may remove or disable access to any infringing material as provided for in the DMCA. Our Designated Agent under the DMCA is set forth below.
The notice must include the information as provided by the DMCA, 17 U.S.C. § 512(c)(3):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Nestlé to locate the material;
4. Information reasonably sufficient to permit Nestlé to contact the complaining party, such as address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that material you have placed on Nestlé’s system or network has been removed by mistake or as the result of an improper take down notice, you may send our Designated Agent, as set forth below, a “counter notification” containing the following information as provided by the DMCA, 17 U.S.C. § 512(g)(3):
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Nestlé may be found, and you will accept service of process from the person who provided notification that led to the mistaken removal of your material or an agent of such person.
There are substantial penalties for sending false notices. It is Nestlé’s policy, in appropriate circumstances and in its sole judgment, to suspend or terminate the service of any subscriber, account holder, or user who is deemed to be a repeat or blatant infringer of copyrights.
Our Designated Agent to whom notices should be sent is:
Nestlé Health Science U.S. Attn: Legal Department/DMCA Notices 1007 U.S. Highway 202/206 Bldg. JR-2 Bridgewater, NJ 08807
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims.
13. Fitness, Nutrition, Health & Other Information
Nestlé does not warrant that the content on the Services is accurate, complete, or current. Despite our efforts, items on the Services may be mispriced and product and service descriptions may be inaccurate. Nestlé reserves the right to correct any inaccuracies or omissions on the Services, to revoke any offer, to cancel your order, and to take any other actions it deems reasonable or necessary to rectify the error, regardless of whether charges have been applied to your account or credit card.
Without limiting the foregoing, and to the extent applicable, information presented on the Services is intended to impart general fitness, nutrition and health information. Nestlé is not engaged in rendering medical advice or services and submission of information or any other use of the Services does not create a doctor-patient relationship. THE INFORMATION PRESENTED ON THIS WEBSITE IS NOT INTENDED FOR TREATMENT OR DIAGNOSTIC PURPOSES. You should consult your doctor for medical advice or services, including seeking advice regarding a medical condition, illness, treatment and prior to undertaking a new diet or exercise program or utilizing any related services on the website. Advance consultation with your doctor is particularly important if you are, pregnant, breastfeeding, or have health problems. Never disregard professional medical advice or delay in seeking it because of something you have read on the Services.
14. Jurisdiction
The Services are intended for residents of the United States only, and we may take certain measures (such as IP address blocking) to limit access to the Services by only such users. Nestlé makes no representation that the Services are appropriate or available for use in other locations.
15. Warranty Disclaimers
THE SERVICES AND THEIR CONTENTS ARE PROVIDED ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW, NESTLÉ EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, NESTLÉ MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY, OR AVAILABILITY OF THE SERVICES OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE SERVICES. YOU SPECIFICALLY ACKNOWLEDGE THAT NESTLÉ IS NOT LIABLE FOR INACCURATE CONTENT POSTED BY, OR THE DEFAMATORY, OBSCENE, OR UNLAWFUL CONDUCT OF, OTHER THIRD PARTIES OR USERS OF THE SERVICES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NESTLÉ DOES
NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE. NESTLÉ FURTHER MAKES NO WARRANTY THAT THE SERVICES WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT THEY WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT NESTLÉ AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE SERVICES OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST NESTLÉ FOR DISSATISFACTION WITH THE SERVICES OR THE CONTENT IS TO CEASE YOUR USE OF THE SERVICES AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, THEN THE AGGREGATE LIABILITY OF NESTLÉ UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
16. Limitations of Liability
UNDER NO CIRCUMSTANCES SHALL NESTLÉ BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICES, OR THE DATA, CONTENT OR INFORMATION ACCESSED VIA THE SERVICES OR ANY THIRD-PARTY SITE, OR ANY THIRD-PARTY APPLICATION, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE SERVICES, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN, OR FORESEEABLE, EVEN IF NESTLÉ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY ACCESSING THE SERVICES SUBJECT TO THESE TERMS, YOU UNDERSTAND THAT YOU ARE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY WAIVE ALL CLAIMS AGAINST NESTLÉ, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUPPLIERS, AND PROGRAMMERS THAT MAY ARISE FROM YOUR USE OF THE SERVICES. THE TOTAL AGGREGATE LIABILITY OF NESTLÉ WITH REGARD TO YOUR USE OF THE SERVICES TO WHICH THESE TERMS APPLY, SHALL NOT EXCEED FIVE U.S. DOLLARS ($5.00).
17. Indemnification
You agree to indemnify, defend, and hold harmless Nestlé, and its affiliates, subsidiaries, licensors and services providers and such parties’ officers, directors, employees, agents, licensors and suppliers from and against any claims, causes of action, demands, losses, expenses, damages, penalties, liabilities, judgments, awards, expenses, fees or other costs, including but not limited to reasonable attorneys’ fees, brought by third parties as a result of: (i) your violation of these Terms; (ii) your use of the Services and/or any content from the Services; (iii) any User-Generated Content you supply; or (iv) your violation of any law or the rights of a third party.
18. Governing Law
These Terms are to be governed by and construed in accordance with the law of New Jersey, United States of America, without reference to its conflicts of law rules.
19. Dispute Resolution by Mandatory, Binding Arbitration
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU AND NESTLÉ WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
If you and Nestlé have a Dispute (defined below), and we are unable to resolve your concern, you and Nestlé agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. If you intend to initiate an arbitration proceeding, you must first send a verified notice (the “Notice”) that describes the Dispute.
The Notice to Nestlé must be sent to:
Nestlé Health Science U.S. Attn: Legal Department 1007 U.S. Highway 202/206 Bldg. JR-2 Bridgewater, NJ 08807
The Corporate Trust Company 1209 Orange Street Wilmington, DE 19801
The Notice must include your name and contact information (address, telephone number, and email address), and a detailed description of (1) the Dispute, (2) the nature and basis of your claims, and (3) the nature and basis of the relief sought, with a detailed calculation. You must personally sign the Notice. If requested by the Nestlé, you must personally appear at and participate in a telephone settlement conference (if you are represented by counsel, your counsel may also participate) to discuss the Dispute. If the Dispute is not resolved within sixty (60) days after receipt of the Notice (which period can be extended by agreement of the parties), you and Nestlé may commence a formal dispute resolution proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing any formal dispute resolution proceeding, including a demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution process.
If we are unable to resolve the Dispute through the mandatory informal dispute resolution process, you unconditionally agree that, except as set forth below, all claims, controversies, or disputes at law or equity between you and Nestlé that may arise out of or relating in any way to this or previous versions of these Terms, your use of the Services, any information or content contained in the Services, or to any products or services sold or distributed by us or through the Services whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Dispute”) will be resolved by individual, binding arbitration, rather than in court. The sole exceptions to the foregoing requirement to arbitrate are that: (1) either party may assert individual claims in small claims court if those claims otherwise qualify for small claims court and as long as the matter
remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. This arbitration provision shall survive termination of this agreement. BY AGREEING TO THESE TERMS, YOU GIVE UP YOUR RIGHT TO BRING AND PROSECUTE ANY DISPUTES WITH NESTLÉ IN A COURT OF LAW OR BEFORE A JURY. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS OR REPRESENTATIVE ACTIONS, except that you may assert claims in small claims court if your claims qualify and the case proceeds as an individual (non-class, non-representative) case. This Dispute Resolution section evidences a transaction in interstate commerce and the Federal Arbitration Act applies to the interpretation and enforcement of this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), in favor or against only the parties to the arbitration and only to the extent necessary to provide the relief warranted by the party’s individual claim, including injunctive and declaratory relief or statutory damages. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding. The arbitrator must follow these Term of Use as a court would. The arbitrator may not consider any prior settlement offers in making the decision. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party, provided that the arbitrator may consider rulings in other arbitrations involving different individuals.
You and Nestlé agree that the arbitration will be administered by the American Arbitration Association (“AAA”), adr.org. (If the AAA is unavailable or unwilling to administer arbitrations consistent with this Dispute Resolution section, another arbitration provider shall be selected by the parties that will administer arbitrations consistent with this Dispute Resolution section. If the parties cannot agree on a provider, one shall be selected by the court that will administer arbitrations consistent with this Dispute Resolution section.). To begin an arbitration proceeding, after satisfying the condition precedent identified above, you must (1) send a verified and personally signed demand for arbitration that describes (a) the nature and basis of your claims, and (b) the nature and basis of the relief sought, including a detailed calculation to: Nestlé Health Science U.S., Attn: Legal Department, 1007 U.S. Highway 202/206, Bldg. JR-2, Bridgewater, NJ 08807 and The Corporate Trust Company, 1209 Orange Street, Wilmington, DE 19801 for Nestlé; and (2) contact the AAA and follow the appropriate procedures with the AAA to commence the arbitration. Notwithstanding anything to the contrary, Nestlé will pay all fees and costs that it is required by law to pay.
The arbitration hearing may be held in person in the county where you live or at another mutually agreed location as set forth in the AAA rules. You and Nestlé may also agree to have the arbitration conducted by telephone or based solely on written submissions. If requested, you shall personally appear (with your counsel if you have one) at an initial telephone conference with a case manager before an arbitrator is appointed.
Except as expressly provided in this Dispute Resolution section, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Dispute Resolution section including, but not limited to, a claim that all or any part of it is void or voidable. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s applicable consumer rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless
they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator.
The arbitrator will decide all claims in accordance with applicable law. The arbitrator shall not be bound by rulings in prior arbitrations involving other customers of Nestlé but is bound by rulings in prior arbitrations involving the same customer of Nestlé to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the arbitrator's award may be entered in any court having jurisdiction.
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, you and Nestlé agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action. NEITHER YOU NOR NESTLÉ WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH ANY PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. Unless you and Nestlé agree otherwise, a Dispute may not be consolidated with a claim by any person or entity that is not a party to the arbitration proceeding, no arbitration or proceeding will be combined with another and the arbitrator may not adjudicate or determine any form of a representative, class, consolidated, collective, or private attorney general proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party bringing the claim, if such relief is warranted by the facts and law. Any relief awarded by the arbitrator will not affect other customers of Nestlé.
If for any reason a claim proceeds in court rather than in arbitration both you and Nestlé waive any right to a jury trial OR TO PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER TO THE FULLEST EXTENT PERMITTED BY LAW. If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Section, the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. If any party is permitted to seek a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
Special Additional Procedures for Mass Arbitration: If twenty-five (25) or more similar claims are asserted against Nestlé by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Nestlé shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process, which shall be completed within 180 days from the selection of cases. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process, which shall be completed within 180 days from the selection of cases. The
remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated, or otherwise resolved. To the extent your claim has not been adjudicated, resolved, or withdrawn within 18 months following the second bellwether process, you may elect to opt-out of the bellwether process and provide your Demand for Arbitration to the AAA for adjudication pursuant to the AAA Consumer Arbitration Rules and Multiple Consumer Case Filing Fee Schedule. To the extent you have provided Notice of a Dispute, the statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Dispute Resolution section from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Nestlé.
Future Changes to Dispute Resolution Section: Notwithstanding any provision to the contrary, we agree that if the Nestlé makes any future changes to this Dispute Resolution section (other than a change to the mailing or email address), you may reject any such change by sending us written notice within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Dispute Resolution section.
20. Electronic Communications
When you visit or use the Services, or send emails to us, you are communicating with us electronically. You consent to receive communications from Nestlé electronically. You agree that this electronic document and any other electronic agreement, notice, or other communication that we provide to you meets any legal requirement that such communication be in writing.
21. Revisions to Terms and Conditions
We may change these Terms without advance notice. Please visit this page periodically to see the most current Terms that govern your use.
22. Severability
If any part of these Terms is determined to be invalid or unenforceable for any reason under relevant law, then that part will be deemed replaced with a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining Terms will continue in full force and effect. Nestlé’s failure to enforce strict performance of any part of these Terms does not waive any of our rights. Nestlé may assign its rights and duties under these Terms to any party at any time.
23. No Joint Venture
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Nestlé as a result of these Terms. You may not assign these Terms without the prior written consent of Nestlé in all instances. Nestlé may assign these Terms, in whole or in part, at any time. Nestlé’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of Nestlé’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the
Services or information provided to or gathered by Nestlé with respect to such use, including disclosing the identity of anyone providing User-Generated Content.
24. Entire Agreement
Other than as may be set forth in these Terms any other terms that may apply, including the Privacy Policy and all other documents expressly incorporated herein by reference, constitute the entire agreement between you and Nestlé with respect to the Services, and supersede all prior and contemporaneous communications and proposals, whether electronic, oral, or written, between you and Nestlé related thereto. A printed version of these Terms and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
25. Contact Information
You may contact us regarding these Terms at:
Nestlé Health Science U.S. Attn: Legal Department 1007 U.S. Highway 202/206 Bldg. JR-2 Bridgewater, NJ 08807