1. ACCEPTANCE OF TERMS
Zero Effort Nutrition, LP (collectively, “Z.E.N.,” “we,” “us” or “our”) welcomes you to use our applications for Z.E.N. Classics, including, without limitation, iOS app, Android app or web app (collectively, the “App”), to browse and purchase Z.E.N. Classics’ products and services, which are then delivered to the address designated by you.
These Terms will remain in full force and effect as long as you are a user of the App, and in the event of termination of any product, service or feature, you will still be bound by your obligations under these Terms.
It is your responsibility to periodically review these Terms. Nevertheless, Z.E.N. reserves the right, at any time, to change the Terms by publishing notice of such changes on the Website. Any use of the App and/or our services and/or products after our publication of any such changes shall constitute your acceptance of these Terms, as modified.
This App is not targeted toward or intended for use by anyone under the age of 18. By using the 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 full power and authority to enter into these Terms. If you use this App, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Z.E.N. and its associates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
2. PRODUCT CATALOG, Z.E.N. COOLER BAG, AND STORAGE/PREPARATION.
By accessing the App, you have the ability to: (i) view a catalog of products, and (ii) purchase the products offered (collectively, the “Service”).
a. Product Catalog
Each item in our product Catalog provides you with:
• The name of the item
• Description of the item
• A list of the ingredients used in the product
• Calorie information
• Allergens (if any)
• All items are delivered in an insulated cooler bag with ice packs (the “Z.E.N. Cooler Bag”).
• To maintain the freshness, you should immediately refrigerate all items in each Z.E.N. Cooler Bag upon opening your Z.E.N. Cooler Bag.
• You should consume the product within three (3) days after delivery, although seafood should be consumed within two (2) days of delivery to ensure optimal freshness.
• All orders must be placed through the App.
• Each order must be at a minimum of $25
• You will receive an email from Z.E.N. confirming your order.
• Z.E.N. contracts delivery services to deliver our Z.E.N. Cooler Bag.
• We deliver our Z.E.N. Cooler Bags throughout Southern California, from San Diego to Santa Barbara with some area excluded.
• Deliveries will be made Sunday through Friday, between 6:00 p.m. and 6:00 a.m. local time, at the night prior to the delivery date of your choosing.
• Z.E.N. Cooler Bag will be delivered and dropped off at the area you designated.
• In the case of bad weather or unforeseen courier issues, we will deliver your order as soon as reasonably possible when the conditions permit or we may need to cancel your order.
You are solely responsible for, and assume all risks related to the safe heating and consumption of the products you receive from us. You are also responsible for knowing about any food allergies you, or those you serve these products to, may have. You understand, acknowledge and agree that we store, portion and package products containing all major allergens and cannot guarantee that cross-contamination will not occur between products. You must verify the products (and their contents) you receive from Z.E.N. before consuming such products.
You agree that upon placement of your order, Z.E.N. may immediately charge your credit card for payment for any charges incurred under your account. You also agree that you are personally liable for all charges incurred under your account and are fully responsible for all activities that occur under your account. If you have a question about a Z.E.N. charge on your credit card statement, please contact customer service by phone at (310) 205-9368 during posted hours or email firstname.lastname@example.org.
7. LIMITED WARRANTY AND RETURN POLICY
All sales are final. If something unexpected happens during the fulfillment of your order, we reserve the right to cancel your order for any reason. If your order is cancelled, a refund will be processed for any payment you have remitted to us. You may also cancel your order with a 3 business-day notice.
For quality issues, please contact us within 3 business days of your delivery at telephone number (310) 205-9368 during posted hours or email email@example.com. In some cases, we may need further documentation from you in order to resolve your request.
a. Access to the Service
Z.E.N. grants you a limited, revocable, nonexclusive, non-transferable license to access the App and use the Service for your own personal use only. You agree that no Materials or Content (as defined in Paragraph 8 below) from the App may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our written permission. Violation of these Terms, including without limitation modification or use of Materials on the App for any purpose other than those permitted in these Terms, shall result in the automatic termination, without notice to you, of your license to access the App and utilize the Service, and also may constitute the infringement of our copyright, trademark and/or other rights. You shall not attempt to access any of our other systems, programs or data that are not made available for public use. Except as expressly stated in the Terms, you are not granted any right or license, by implication, estoppel, or otherwise, in or to any patent, trademark, copyright, or proprietary right of Z.E.N. or any third party, in connection with your use of the App and any Materials provided by us or any third party on the App. Elements of the App, including page headers, custom graphics, logos, sounds, images, the “look and feel” of the App (including its design, layout, color combinations, button shapes and other graphical elements) and button icons, are protected by copyright, trade dress and other state and federal laws and may not be copied or imitated, in whole or in part.
b. Creating An Account
From time-to-time, Z.E.N. may offer Promotions by and through the App, or other means. By providing true and accurate information in connection with the applicable Promotion registration form(s) and agreeing to the Contest Rules applicable to each Promotion, you can obtain, or attempt to obtain, a chance to win the prize(s) and other awards offered through each Promotion, if any. You understand and agree that Z.E.N. shall not be liable to you or any third party for any claim in connection with your participation in any of the Promotions.
d. Restrictions on Use of App
You agree that in connection with your use of the App, you will not do any of the following:
• Circumvent, disable or otherwise interfere with security-related features of the App or features that prevent or restrict use or copying of any Materials, or enforce limitations on use of the App or Materials.
• Copy, reproduce, republish, upload, post, transmit, or distribute in any way any Materials, in whole or in part, without our written permission, other than as expressly allowed by us.
• Transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
• Use any data mining, robots, spiders, or similar data gathering and extraction methods within the App or in any way reproduce or circumvent the navigational structure or presentation of the App or its contents without our prior written consent.
• Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the App or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Website.
• Use any meta tags or any other “hidden text” utilizing the name “Z.E.N.” or any substantially similar name without our written consent.
• Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure.
• “Frame” or “mirror” any part of the App.
• Engage in spamming or flooding.
• Remove any copyright, trademark or other proprietary rights notices contained on the App.
• Use the App or Materials for any unlawful purpose.
• (i) Make any resale or commercial use of the App or Company Materials; or (ii) make any derivative use of the App or Company Materials.
e. Links to Third Party Sites
The App may contain links to other websites, which are completely independent of this App and are provided to you only as a convenience. Z.E.N. makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in, or the products or services provided or sold by, any such site. Your linking to any other websites is at your own risk and you acknowledge that you bear all risks associated with access to and use of any content, information, data, advertising, products, services, or materials on or available through such websites, and your access to and use of such websites is subject to the terms and conditions of use applicable to such websites. You agree that Z.E.N. is not responsible for any loss or damage of any sort you may incur from dealing with such third party website(s).
You acknowledge that Z.E.N. may establish limits concerning use of the App and/or our service and/or products and reserves the right at any time to modify our services and products (or any part thereof), as wells as the App’s content, functionality or hours of availability, upon publishing notice of such changes on the App.
You acknowledge that any of the foregoing Limitations will not be cause for a refund for any of our Products and that Z.E.N. shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
g. Privacy and Information Disclosure
h. Communications to Us; User Content
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation to you.
As noted above, the Services provide you with the ability to post and upload User Content to the App. You expressly acknowledge and agree that once you submit your User Content, unless you designate it as “private,” it will be accessible by others, and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make publicly available. YOU, AND NOT Z.E.N., ARE ENTIRELY RESPONSIBLE FOR ALL THE USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby irrevocably grant us and our sublicensees and assignees a non-exclusive, transferable, perpetual, royalty-free, freely sublicensable (through multiple tiers) license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) any and all of your User Content that you have not designated as “private,” your username, the picture associated with your username, and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. Without limiting the foregoing, you acknowledge and agree that uses of your User Content, username, and associated picture permitted by the foregoing rights and licenses may include the display of such User Content, username, and associated picture adjacent to advertising and other material or content, including for profit.
If you submit User Content to us, each such submission constitutes a representation and warranty to Z.E.N. that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under this Section, and that it and its use by Z.E.N. and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property, privacy, publicity, or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our community guidelines set forth above.
a. Website Content
This App is owned and operated by Z.E.N. All right, title and interest in and to the materials provided on this App, including but not limited to the “look and feel” of the App (including its design, layout, color combinations, button shapes and other graphical elements), information, documents, logos, graphics, sounds, page headers, button icons, service marks, trademarks, trade dress, and images (collectively, the “Materials”) are owned either by Z.E.N. Except as otherwise expressly provided by Z.E.N., none of the Materials may be copied, republished, reproduced, uploaded, downloaded, displayed, posted, distributed, or transmitted, in any way, including without limitation on any other website, apps or in a networked computer environment, and nothing on this App shall be construed to confer any license under any of Z.E.N. intellectual property rights, whether by implication, estoppel, or otherwise. Any rights not expressly granted herein to you are hereby reserved by Z.E.N.
All Website design, text, graphics, and the selection and arrangement thereof, are owned by Z.E.N. Copyright © 2010, Z.E.N. Inc. ALL RIGHTS RESERVED.
“Z.E.N.”, the Company’s logo, “Eat Clean. Live Lean.”, all images and text, and all page headers, custom graphics and button icons are service marks, registered trademarks and/or trade dress of Z.E.N. All other trademarks, product names and company names or logos cited herein or on the Website are the property of their respective owners.
9. LIMITATIONS OF LIABILITY AND DAMAGES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Z.E.N. BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN ANY WAY RELATED, TO THE ACCESS TO OR USE OF THIS APP OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS, 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 (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). IF THERE IS LIABILITY IN ANY LEGAL PROCEEDING FOUND ON THE PART OF Z.E.N., ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS, IT WILL BE LIMITED TO THE AMOUNT PAID TO THE COMPANY FOR THE PRODUCTS, EXCEPT AS PROVIDED IN AND PURSUANT TO THE ARBITRATION AGREEMENT, BELOW. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OF LIMIATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS SET FORTH IN THIS SECTION 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. RESOLUTION OF THOSE CLAIMS, WILL BE GOVERNED PURSUANT TO THE DISPUTE RESOLUTION PROVISION PROVIDED BELOW.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Z.E.N., its affiliates, officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, attorneys, suppliers and employees from any claim or demand, including reasonable attorneys’ fees and court costs, made by any third party that is caused by, arise out of or are related to (a) any use or misuse of this App, by you or any third party you authorize to access or use our App, (b) any User Content you create, post, share or store on or through the App or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Z.E.N. Please note that some jurisdictions may not allow rights of indemnification in certain circumstances. As a result, some of the above exclusion may not apply to you.
11. ENFORCEMENT OF RULES AND POLICIES
We may investigate any reported violation of our policies or complaints and take any appropriate action that we deem appropriate. While we are not obligated to take any action, such action may include, but is not limited to, issuing warnings, suspension or termination of your rights to use our Website. You agree that Z.E.N. shall not be liable to you or any third party for any termination of your access to the App, and you agree not to attempt to use the App after said termination. We also reserve the right to report any activity that we suspect violates any law or regulation to appropriate law enforcement officials or other third parties.
In order to protect our rights, property, personal safety, and those rights, property and the personal safety of our users and viewers, and to ensure the integrity and operation of our business and systems, may choose to cooperate with any law enforcement request for information or documents, any administrative, civil or criminal subpoena, or any court order, and we may disclose your information (including, without limitation, user profile information (i.e. name, e-mail address, etc.), IP addressing traffic information, and usage history regarding a user in connection with such circumstances.
You are solely responsible for the content that you submit on or through the App, and any content or information that you transmit to other users or third party advertisers on the App.
12. CHOICE OF LAW
The Terms and the relationship between you and Z.E.N. shall be governed by the laws of the State of California without regard to any conflicts of laws principles.
13. DISPUTE RESOLUTION BY BINDING ARBITRATION
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Right Rights, Including Your Right to File a Lawsuit In Court.
Initial dispute Resolution: Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating arbitration.
Agreement to Binding Arbitration: If the parties do not reach an agreed upon solution with a period of thirty (30) days from the time informal dispute resolution is pursued, then either party may initiate binding arbitration. All claims arising out of or relating to this agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the App shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of AAA’s Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement, including, but not limited to any claim that all or any part of this agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. The arbitrator’s award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction, subject to review in accordance with applicable statutes governing arbitration awards. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN CIVIL COURT.
Class Action and Class Arbitration Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right To Opt-Out. You have the right to opt out and not be bound by the arbitration provision provided above. If you do not wish to be bound by this arbitration clause, you must notify Z.E.N. in writing within 30 days after registering to use the Z.E.N. App, or your rejection of arbitration will not be effective. You must send your request to: firstname.lastname@example.org. Your request must include your telephone number(s) and a clear statement of your intent, such as “I reject the arbitration clause stated in the Z.E.N. App Terms and Conditions.” Please be aware that if you exercise your right to opt-out, Z.E.N. also will not be bound by the arbitration provision.
Exclusive Venue For Litigation. To the extent that the arbitration provisions set forth above do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal court located in Los Angeles, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Los Angeles, California for any litigation other than small claims court actions.
14. GENERAL INFORMATION
The Terms constitute the entire agreement between you and Z.E.N. and govern your use of the App and our Services and Products, superseding any prior agreements between you and Z.E.N. The failure of Z.E.N. to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms do not limit any rights that Z.E.N. may have under trade secret, copyright, patent or other laws. The employees of Z.E.N. are not authorized to make modifications to the Terms, or to make any additional representations, commitments, or warranties binding on Z.E.N., except in a writing signed by an authorized officer of Z.E.N. If any provision of the Terms 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 the Terms 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 the use of the App, the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that the Terms shall not be construed against the drafting party, i.e., Z.E.N.
You warrant, represent and agree that, by accessing and/or using of the App, its Content and/or the Services, you (i) do so with knowledge of any and all rights that you may have with respect to the provisions of these Terms, (ii) have carefully read and considered these Terms and fully understand its contents and the significance of its contents, (iii) are consenting to these Terms of your own informed and free will, based upon such party’s own judgment and without any coercion or fear of retaliation, and (iv) you have been afforded the opportunity to obtain independent legal advice with respect to these Terms.