Last Updated: November 5, 2019
WELCOME TO PROTEAU! WE HOPE YOU WILL BENEFIT FROM OUR PRODUCTS AND THIS WEBSITE (OUR “SITE”).
Note that these Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
Please email us at firstname.lastname@example.org if you have any questions. Thank you for visiting our Site and for supporting our products!
We may modify these Terms at any time, and such modification shall be effective immediately upon our providing notice of such modifications by, for example, sending an email notification, providing notice through our Site or updating the “Last Updated” date at the beginning of these Terms. Your continued use of our Site or of our products shall be deemed your acceptance of such changes. If you do not wish to be bound by these Terms, please do not use our Site or our products.
We reserve the right in our sole discretion to modify, suspend or discontinue our Site (or any features thereof) or the provision of our products at any time.
ELIGIBILITY AND GENERAL USE OF OUR SITE
Our Site is not targeted toward or intended for use by anyone under the age of 18. By using our Site, 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 our Site, or engaged in any activity that could result in suspension or removal from our Site, and (d) 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.
You agree to use our Site for your own personal, non-commercial use only. You are not permitted to resell or otherwise use our products for commercial purposes. You also agree that your use of our Site and any of our products does not violate any applicable law or regulation.
The content of our Site is our exclusive property. You agree to not extract, modify, reproduce or distribute any of our Site’s content for any purpose other than for your own personal, non-commercial use, without our prior written consent.
USER ACCOUNTS AND COMMUNICATIONS
To access and use certain areas or features of our Site and to order our products, you will need to register for an account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who accesses or uses our Site on your behalf or using your account credentials (including with respect to the ordering of our products), and (e) immediately notify us if you discover or otherwise suspect any security breaches related to your account. You further understand and agree that we may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your account or your orders. It is your responsibility to keep your account information, including your phone number, updated.
By creating an account on our Site, you consent to receive electronic communications from us. These communications may include notices about your account and orders and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. 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.
By providing your mobile phone number to us through our Site or in connection with your order, receipt or use of our Product(s), you consent to receive calls or text messages at any such phone number sent by or on behalf of us, including autodialed calls and/or text messages, for marketing, promotional, operational or transactional purposes, such as updates on the delivery status of your order of our products. You may opt out of marketing and promotional calls or messages by following the applicable unsubscribe instructions provided to you. Following such opt-out, you may continue to receive calls or messages for a short period of time while we process your request. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you.
All of our products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue offering certain products without prior notice. We strive to provide you with high-quality products, and given the perishable nature of our products and market conditions beyond our control, we may be required to make substitutions from time to time.
We will collect applicable sales, use and other tax on products shipped to jurisdictions for which we determine we have a duty to collect tax applicable to your purchase. If an item is subject to tax, you agree that the amount of tax shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in applicable tax rates.
We only ship out orders Monday through Wednesday; orders placed after Wednesday at 6 AM PT/9AM ET will ship the following Monday (or Tuesday if that Monday is a holiday).
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 provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by FedEx or other third-party delivery service. When you purchase a product from our Site, shipping times, if any, that we may provide are estimates only. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a product for export outside of the United States.
You are responsible for inspecting all products for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the products you receive. To maintain the quality and integrity of the products, we recommend that you immediately refrigerate all perishable products upon delivery or purchase.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. 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 events beyond our control that interfere with our ability to deliver your order, we will attempt to deliver your order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date.
There is a considerable amount of planning for each of your orders as they are made fresh. As a result, once you confirm your purchase no refunds are offered. However, if you cancel your order at least 48 hours prior to your subscription renewal date you will be credited your purchase price for a future order.
REFUNDS FOR DAMAGED PRODUCTS
We will issue a refund for any product you can reasonably demonstrate was damaged prior to or during transit. If you received any damaged product, please e-mail us at email@example.com
From time to time there may be information on our Site that contains inaccuracies, omissions or typographical errors, that may relate to product descriptions, availability and pricing. We reserve the right to correct any inaccuracies, omissions or errors and to update information at any time without prior notice (including after you have submitted your order).
We have made every effort to display the colors of our products as accurately as possible. However, we cannot guarantee that your monitor’s display will be accurate as the actual colors you see depend on your monitor.
IMPROPER USE OF OUR SITE
You agree not to use our Site to:
(a) harm others, including, but not limited to, infringing upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any third party;
(b) violate any laws, regulations, treaties or governmental or judicial order;
(c) send or enable the transmission of junk email, “phishing” or “spamming” or unsolicited or duplicative messages;
(d) distribute, transmit or upload programs or material that contains malicious code, including, but not limited to, viruses, cancelbots, time bombs, Trojan horses, worms, spyware, Easter eggs, or other potentially harmful programs, materials or information;
(e) impair, disrupt, alter or otherwise interfere with the content, features, functions, or use of our Site;
(f) improperly display any TCP/IP packet header or part of the header information in any e-mail or other postings;
(g) gain illegal or unauthorized access to other computers or networks through hacking or other means;
(h) gain unauthorized access to our Site or any third-party website; or
(i) assist or permit any person to engage in any of the activities described above.
Even though the above activities are prohibited, you agree if you become exposed to them while using our Site neither we nor any of our officers, shareholders, directors, advertisers, employees or corporate partners will in any way be responsible for any damages caused by such exposure.
THIRD PARTY WEBSITES
COMMENTS AND SUGGESTIONS; USER CONTENT
We greatly value your suggestions, comments, feedback, postcards, ideas, and other submissions you may provide to us (“Comments”). Comments shall be our property and the offering of Comments to us shall constitute your assignment to us of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Thus, we will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Comments. We shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay any compensation for any Comments or (3) to respond to any user Comments.
You agree that no Comments submitted by you will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary rights. You further agree that no Comments submitted by you will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you provide to us.
When you upload, email or otherwise submit content to us or our Site, you give us and those we work with a worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Site and our products. This license continues even if you stop using our Site and our products. Do ensure you have the necessary rights to grant us this license for any content that you submit to us.
If you believe our Site contains content that infringes on copyrights in your work, please e-mail the following information to firstname.lastname@example.org:
(a) A description of the copyrighted work that you claim has been infringed upon and the location where the original or an authorized copy of the copyrighted work exists;
(b) A description of where the infringing material is located on our website;
(c) Your name, address, telephone number, and e-mail address;
(d) The signature of the copyright owner or of the person authorized to act on behalf of the copyright owner;
(e) A statement that you have a good-faith belief that our use of the content is not authorized by the copyright owner, its agent, or the law.
(f) A statement by you, under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
LIMITATION OF LIABILITY; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROTEAU AND OUR MANAGERS, MEMBERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, MANUFACTURERS AND SUPPLIERS (COLLECTIVELY, THE “PROTEAU PARTIES”) SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY, LOSS OR DAMAGE, OF ANY KIND WHATSOEVER, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF OUR SITE OR THE PURCHASE, CONSUMPTION OR USE OF ANY PRODUCTS SOLD THROUGH OUR SITE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE PROTEAU PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM US, OR ACCESS OR USE OF OUR SITE OR CONTENT, EXCEED THE GREATER OF $100 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 THE
PROTEAU 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), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS, LIABILITY OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE, RESULTING FROM OR ARISING OUT OF ANYONE’S ACCESS OR USE OF OUR SITE, ANY CONTENT POSTED ON OUR SITE OR TRANSMITTED TO USERS, OR ANY INTERACTIONS BETWEEN OR AMONG USERS OF OUR SITE, WHETHER ONLINE OR OFFLINE.
THE LIMITATIONS SET FORTH HEREIN WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
CONTENT IS FOR INFORMATIONAL PURPOSES ONLY.
THE CONTENT OF OUR SITE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED TO DIAGNOSE OR TREAT A HEALTH OR OTHER PROBLEM OR DISEASE. NEITHER THE CONTENT NOR ANY PRODUCTS OFFERED THROUGH OUR SITE ARE INTENDED TO BE, NOR SHOULD THEY BE USED AS, A SUBSTITUTE FOR PROFESSIONAL DIAGNOSIS OR TREATMENT IN ANY WAY. DO NOT USE THE INFORMATION OR PRODUCTS AVAILABLE ON OR THROUGH OUR SITE AS A SUBSTITUTE FOR PROFESSIONAL EVALUATION AND TREATMENT (MEDICAL, NUTRITIONAL OR OTHERWISE). ANY INFORMATION THAT YOU FIND ON OUR SITE, RECEIVE FROM US, OUR AGENTS OR EMPLOYEES, OBTAIN ON WEBSITES WHICH WE LINK TO, OR OBTAIN THROUGH CONTACTS YOU MAY MAKE THROUGH OUR SITE OR PRODUCTS OFFERED THROUGH OUR SITE, SHOULD BE VERIFIED WITH YOUR PROFESSIONAL HEALTH CARE PROVIDER. PLEASE CONSULT YOUR PROFESSIONAL HEALTH CARE PROVIDER WITH ANY SPECIFIC HEALTH QUESTIONS OR PROBLEMS YOU MAY HAVE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR ANY CONDITION REQUIRING IMMEDIATE ATTENTION, CALL YOUR DOCTOR OR 911 IMMEDIATELY. WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC MEDICAL TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON OR PURSUANT TO OUR SITE. RELIANCE ON ANY INFORMATION OR PRODUCTS PROVIDED BY US, OUR AGENTS OR EMPLOYEES IS SOLELY AT YOUR OWN RISK AND WE HEREBY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION THEREWITH.
DISCLAIMERS; PRODUCTS ARE SOLD “AS IS”.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE HANDLING, PREPARING, STORAGE, COOKING, USE AND CONSUMPTION OF OUR PRODUCTS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING OUR 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 COMMON ALLERGENS 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 OUR SITE, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITE, 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 OUR THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON OUR SITE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, AND THE AVAILABILITY AND VARIABILITY OF INGREDIENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY CONTENT RELATED TO OUR PRODUCTS PROVIDED BY OR DISPLAYED THROUGH A THIRD PARTY CHANNEL, INCLUDING, WITHOUT LIMITATION, REGARDING ITS ACCURACY OR COMPLETENESS.
ALL PRODUCTS ARE SOLD “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR OF MERCHANTABILITY.
WE ARE NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM YOUR USE OF OR RELIANCE ON THE CONTENT, OR ANY OTHER MATERIAL APPEARING ON OR THROUGH OUR SITE OR OF OUR PRODUCTS.
WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RESULTING FROM YOUR ACCESS AND USE OF OUR SITE. YOU (AND NOT US) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OR ANY OTHER DAMAGES FROM YOUR USE OF OUR SITE OR OF OUR PRODUCTS.
PROFESSIONAL ADVICE DISCLAIMER
We do not provide medical or counseling advice. None of our services and nothing stated or posted on shop.drinkproteau.com is intended to be, and must not be taken to be, the practice of medical or counseling care. For the purposes of this agreement, the practice of medicine and counseling includes but is not limited to, diagnosis, prognosis, advice, psychiatry, psychology, psychotherapy or general health care treatment. Please seek the advice of your medical professionals as appropriate regarding the evaluation of any information, opinion or content on shop.drinkproteau.com
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless us and the other Proteau Parties (as defined above under the heading “Limitation of Liability; Release”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of our Site, our content or our products by you or any third party you authorize to access or use such Site, content or products, (b) any user content you create, post, share or store on or through our Site or our pages or feeds on third party social media platforms, (c) any Comments you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify us of any third party Claims, cooperate with the Proteau Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the
Proteau Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and any
STATUTE OF LIMITATIONS
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SITE OR OUR PRODUCTS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
These Terms and your use of our Site and of our products shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
ARBITRATION; NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
For any dispute you have with us, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we cannot resolve a dispute informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) in connection with our Site or our products by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.
The arbitration will be conducted in New York. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to our Site.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATING IN A CLASS ACTION.
You acknowledge that we are based in New York and agree that our Site and our products do not give rise to personal jurisdiction, either specific or general, over us in jurisdictions other than New York. You and we agree to submit to the personal jurisdiction of a state court for any actions for which either party retains the right to seek injunctive or other equitable relief, as described in the arbitration provision above.