Terms & Conditions
Welcome to Fit Snack
Date of Last Revision: December 17th, 2014
Access and Use of the Service
The Service is designed to allow users to send and receive boxes or packages of goods, samples, offers, coupons, articles and other information (each a “Box”), review products and Boxes (defined below), receive newsletters with information and offers, and participate in the Fit Snack content community.
Boxes and Newsletters:
The contents of each Box will vary, and we make no guarantees regarding the content of the box or of the accuracy of the newsletters and information. We make no guarantee that you will receive a particular product or number of products in a Box or that certain products will be available in your Box. Many of our suppliers’ products come in limited quantities and may not be available in the future. It is your responsibility to review the ingredients of each product to avoid allergic reactions or other side effects. The products within the Box are not manufactured by Fit Snack, but rather by Fit Snack’s suppliers. If you have any questions or complaints about a product, please contact us at [email protected]. For information on returns and refunds, please see our Frequently Asked Questions
Your Registration Obligations:
Sweepstakes and Contests:
From time to time Fit Snack may make available certain sweepstakes and contests on the Site. Your participation in any such sweepstakes and/or contest is subject to and governed by the applicable Official Rules as set forth on, or linked to, any specific landing page for each such sweepstakes or contest on the Site. All such sweepstakes and contest terms are hereby incorporated by reference into these Terms of Service.
Member Account, Password and Security:
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Fit Snack of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Fit Snack will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service:
Fit Snack reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Fit Snack will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage:
You acknowledge that Fit Snack may establish general practices and
limits concerning use of the Service, including without limitation the maximum
period of time that reviews, product designs, data or other content will be
retained by the Service and the maximum storage space that will be allotted on Fit
Snack’s servers on your behalf. You agree that Fit Snack has no responsibility
or liability for the deletion or failure to store any reviews, product designs,
data or other content maintained or transmitted by the Service. You acknowledge
that Fit Snack reserves the right to terminate accounts that are inactive for
an extended period of time. You further acknowledge that Fit Snack reserves the
right to change these general practices and limits at any time, in its sole
discretion, with or without notice.
Conditions of Use: comments or posts, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “post”) or email or otherwise transmit or use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Fit Snack. Fit Snack reserves the right to investigate and take appropriate legal action against anyone who, in Fit Snack’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
1. post, email or otherwise transmit any content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of Fit Snack, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Fit Snack or its users to any harm or liability of any type;
2. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
3. solicit personal information from anyone under the age of 18;
4. harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
5. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
6. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
7. violate any applicable local, state, national or international law, or any regulations having the force of law;
8. further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
9. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Payment and Auto-Renewal:
To the extent you wish to make a purchase using the Service (for example, to purchase individual Boxes or Box subscriptions), you will be required to provide Fit Snack information regarding your credit card or other payment instrument (such as PayPal). You represent and warrant to Fit Snack that such information is true and that you are authorized to use the payment instrument for the initial subscription term and each renewal term. If you subscribe to the Service, you will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Fit Snack the amount that is specified in the Service in accordance with these Terms of Service. If you have subscribed to the Service, you hereby authorize Fit Snack to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable subscription plan until you terminate your account, and you further agree to pay any charges so incurred. You understand and accept that, unless otherwise expressly stated, our Service is a subscription that operates on an auto-renewal basis such that your credit card or other payment instrument will be assessed a monthly fee after the conclusion of your initial subscription package. All payments made are non-refundable. If you dispute any charges you must let Fit Snack know within thirty (30) days after the date that Fit Snack charges you. If you have paid for a Box but did not receive it, please contact us at [email protected]. We reserve the right to increase Fit Snack’s subscription plan prices at any time. If Fit Snack does, Fit Snack will provide notice of the change on the Site or in email to you, at Fit Snack’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Third party payments: Any purchases made with a third party such as Living Social, Groupon, or Plum District is given a voucher. You can redeem this voucher through one of our subscription plans. If you sign up with one of our subscriptions you will be on an auto-renewal payment plan with the credit card you sign up with.
You agree to pay all taxes, duties and other charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges. In addition, you will remain responsible for any taxes that may be applicable to your purchases made through the Service, including any district taxes in your jurisdiction.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use and may not be used for direct commercial endeavors.
Intellectual Property Rights
Service Content, Software and Trademarks:
You acknowledge and agree that the Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Fit Snack, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Fit Snack, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Fit Snack.
The FIT SNACK name and logo are trademarks and service marks of Fit Snack (collectively the “Fit Snack Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Fit Snack. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Fit Snack Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Fit Snack Trademarks will inure to our exclusive benefit.
Third Party Material:
Under no circumstances will Fit Snack be liable in any way for any content posted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted via the Service. You acknowledge that Fit Snack does not pre-screen content, but that Fit Snack and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Fit Snack and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Fit Snack, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Posted on the Site:
You are solely responsible for the content and other materials you post on or through the Service or the Site or transmit to or share with other users or recipients (collectively, “User Content”). You will not post any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By posting any User Content you hereby grant and will grant Fit Snack and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any designs, questions, comments, suggestions, ideas, feedback (including without limitation those related to products and Boxes) or other information about the Site or the Service (“Submissions”), provided by you to Fit Snack are non-confidential and Fit Snack will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Fit Snack may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Fit Snack, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Fit Snack respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Fit Snack of your infringement claim in accordance with the procedure set forth below. Fit Snack will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Fit Snack’s Copyright Agent [email protected] (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
Fit Snack, LLC
2900 Fox Street
Denver, CO 80211
To be effective, the notification must be in writing and contain the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Site or Service, with enough detail that we may find it on the Site or Service;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Fit Snack will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy:
In accordance with the DMCA and other applicable law, Fit Snack has adopted a policy of terminating, in appropriate circumstances and at Fit Snack’s sole discretion, users who are deemed to be repeat infringers. Fit Snack may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites:
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Fit Snack has no control over such sites and resources and Fit Snack is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Fit Snack will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Fit Snack is not liable for any loss or claim that you may have against any such third party.
Third Party Services
In addition, Fit Snack is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third party services. As such, Fit Snack is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party service. Fit Snack enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release:
You agree to release, indemnify and hold Fit Snack and its affiliates and their officers, employees, directors and agent harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIT SNACK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FIT SNACK MAKES NO WARRANTY THAT (I) THE SERVICE, PRODUCTS, BOXES OR ANY INFORMATION THEREIN WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, BOXES, SERVICES, ARTICLES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FIT SNACK WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FIT SNACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE, PRODUCTS OR BOXES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, BOXES, OFFERS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL FIT SNACK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID FIT SNACK IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
At Fit Snack’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Subsequent to making your purchase, you agree to receive our Box for a designated amount of time, as determined by your choice of subscription type. Cancellations may be made at any time, and will go into effect the first month following the end of your current subscription period. You may not enact a cancellation before the end of your subscription period and request that funds be returned.
You agree that Fit Snack, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Fit Snack believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Fit Snack may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Fit Snack may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Fit Snack will not be liable to you or any third-party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Fit Snack will have no liability or responsibility with respect thereto. Fit Snack reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Fit Snack and govern your use of the Service, superseding any prior agreements between you and Fit Snack with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Fit Snack agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of Fit Snack to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 , or by telephone at 916-445-1254 or 800-952-5210.
Questions, Comments or Suggestions?
Please contact us at [email protected] to report any violations of these Terms of Service or to ask any questions regarding this Terms of Service or the Service.