Terms of Service

Rev. 5-10-10

Welcome to nutraMetrix.com. nutraMetrix (“nutraMetrix”) is a division of Market America, Inc. (“Market America”). nutraMetrix, Market America and/or their affiliates (“we,” “us,” or “our”) provide Web site features to you subject to the following terms of service (the “Terms”).

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

These Terms set forth the legally binding terms for your use of nutrametrix.com and its related sites, including, without limitation, nutraMetrix’s advertisement sites, all nutraMetrix Banner Advertisements (“Banner Ads”) and all nutraMetrix Health Professional Web Portals (collectively the “Site”). By browsing, using or accessing the Site, you signify that you have read, understand and agree to be bound by these Terms. Additionally, when you use any current or future nutraMetrix service (e.g., nutraMetrix blog) (the “Service(s)”) you also signify that you have read, understand and agree to be bound by these Terms as well as the guidelines, policies, terms and conditions applicable to such Service(s). You are only authorized to use the Site (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and these Terms. If you do not agree to be bound by these Terms and to follow all applicable laws, you should leave the Site immediately.

1. AGREEMENT BETWEEN YOU AND NUTRAMETRIX

These Terms apply to nutrametrix.com and its related sites including, without limitation, nutraMetrix’s advertisement sites, all nutraMetrix Banner Advertisements (“Banner Ads”) and all nutraMetrix Health Professional Web Portals (collectively the “Site”). These Terms do not apply to the content of third party Web sites. In the event that any of the terms contained herein conflict with any other terms or any conditions, policies, guidelines or notices contained on, or applicable to, any particular portion of the Site or any Service, these Terms shall control.

2. PRIVACY

Please review our Privacy Policy, which also governs your visit to the Site, unless otherwise noted. If another Privacy Policy is provided on a particular portion of the Site, then that privacy policy will govern your visit to that particular portion of the Site.

3. INTENDED AUDIENCE

This Site is a business and commercial site and is not intended for use by persons under the age of 18. nutraMetrix does not sell products or Services to children. We sell them to adults who can purchase them with a valid, permitted payment method. We published the material on this Site as a service to our Health Professional Independent Distributors and their patients who reside in the United States (including its territories). This Site is not intended for access or use outside of these areas. We make no claims that the information contained on this Site is appropriate for all jurisdictions. If you access this Site from outside of the countries indicated, you do so at your own risk. You are responsible for compliance with the laws in your jurisdiction.

4. ELECTRONIC COMMUNICATIONS

When you visit the Site or send e-mail to nutraMetrix, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

5. PURCHASE TERMS

You are responsible for providing a valid credit card number at time of purchase. You represent and warrant that you are an authorized user of the credit card. You are responsible for payment of all applicable federal, state/province, local and city taxes and for payment of all shipping and handling charges. All applicable taxes and shipping and handling charges will be included on your order invoice.

6. THIRD PARTY BUSINESSES

The Site contains links to the sites of affiliated companies, resources, advertisements, published articles, journals, news, and certain other third-party literature and businesses that offer products and/or services from a third party Web site that is accessed through a link on the Site. Because we have no control over the content of linked-to sites or the quality of the goods or services offered by third parties through linked-to sites, you acknowledge and agree that we are not responsible for examining or evaluating, and we do not warrant, endorse or guarantee the offerings of any third parties or the content on, or the availability of, their Web sites. You acknowledge and agree that we are not be responsible or liable to you in any manner, directly or indirectly, for the actions, products or services of, or the content provided by, these or any other third parties or for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on content provided by any third party and/or the quality of any goods or services offered by any third party through a linked-to Web site, through the Site, or otherwise.

7. NUTRAMETRIX RETURN POLICY

We stand behind the quality of our products. Except as indicated below, a customer making a purchase from a nutraMetrix Health Professional through the Site has 30 days after the sale to return products in unused condition and receive a full product refund, less shipping and handling, from the selling Health Professional. If the customer pays for all or part of an order with a Gift Card, refunds for that order will be applied first to the Gift Card, up to the Gift Card amount used to pay for the order. Any remaining amount will be refunded to the customer’s credit card. PLEASE NOTE: Food items, toothpaste, custom products and gift cards cannot be returned for a refund for any reason (collectively the “nutraMetrix Return Policy”). The nutraMetrix Return Policy does not apply to items sold and/or shipped by Linked-To Merchants (as defined below).

8. NUTRAMETRIX SHIPPING POLICY

There is a minimum Shipping and Handling charge of $7.50 for all orders totaling less than $100.00. For all orders of $100 or more, there is a minimum Shipping and Handling charge equal to 7.5% of the total order. For purchases of gift cards totaling less than $100.00, there is a Shipping and Handling charge of $2.95, and for purchases of gift cards totaling $100 or more, there is no Shipping and Handling charge. These rates apply to standard ground shipping only (collectively the “nutraMetrix Shipping Policy”). The nutraMetrix Shipping Policy does not apply to Products sold and/or shipped by Linked-To Merchants (as defined below).

9. LINKED-TO MERCHANT RETURN AND SHIPPING POLICIES

“Linked-To Merchants” are third parties that offer products and/or services from a third party Web site that is accessed through a link on the Site. “Linked-To Merchant Products” are products and services that are offered for sale by a Linked-To Merchant through the Linked-To Merchant’s third party Web site. Linked-To Merchant Products purchased by a nutraMetrix customer are covered by each Linked-To Merchant’s individual Return and Shipping Policies, which are available on each Linked-To Merchant’s third party Web site.

10. OTHER LINKED-TO MERCHANTS POLICIES AND TERMS

In addition to the return and shipping policies mentioned above, all purchases from Linked-To Merchants are governed by the terms and policies posted on the Linked-To Merchant’s third party Web site.

11. CONFIDENTIALITY

You agree that all information you provide to us or to your Health Professional will be true, accurate and complete. You agree to maintain the confidentiality of each identification number, key and password (“Identifiers”) that you are provided by us or your Health Professional. You agree that you are responsible for all activities that occur under your account or any of your Identifiers. You agree to immediately notify nutraMetrix or Market America of any unauthorized use of your account or any of your Identifiers or any other breach of security. We are not responsible for any misuse of your account by someone who uses any of your Identifiers.

12. COPYRIGHT/PATENT

All Site design, text, graphics, logos, button icons, images, photos, audio clips, video clips, digital downloads, data compilations and software are owned solely and exclusively by Market America or its content suppliers and protected by U.S. and international copyright or patent laws. The compilation of all content on the Site is the exclusive property of Market America and protected by U.S. and international copyright laws. All software used on this Site is the property of Market America or its software suppliers and protected by United States and international copyright or patent laws. The contents of the Site are Copyright © 2003-2010 Market America, Inc. ALL RIGHTS RESERVED. No Site material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any medium including but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Market America.

13. TRADEMARKS

nutraMetrix, the nutraMetrix logo, Market America, “Built on Product. Powered by People®,” all nutraMetrix and Market America product and service names and logos, UnFranchise®, and all other nutraMetrix and Market America graphics, page headers, button icons, logos, scripts and service names are service marks, trade names, trademarks and/or trade dress of Market America in the United States and/or other countries (collectively “MA’s Marks”). MA’s Marks may not be used in connection with any product or service that is not Market America’s, in any manner that is likely, in the discretion of Market America, to cause confusion among customers, or to disparage or discredit nutraMetrix. All other trademarks not owned by Market America that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Market America.

14. LICENSE AND SITE ACCESS

nutraMetrix and Market America grant you a limited license to access and make personal use of the Site. This license does not include the right to download (other than page caching) or modify the Site or any portion thereof. This license does not include any resale or commercial use of the Site or its contents; any collection and/or use of any product /service listings, descriptions, or prices; any derivative use of the Site or its contents; any downloading or copying of account information for the benefit of another merchant or any other third party or to the detriment of nutraMetrix; or any use of data mining, robots, or similar data gathering and extraction tools. The Site, or any portion thereof, may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Market America. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of nutraMetrix and/or Market America without the express written consent of Market America. You may not use any meta tags or any other “hidden text” utilizing the names or trademarks of nutraMetrix and/or Market America without the express written consent of Market America. Any unauthorized use terminates the permission or license granted by nutraMetrix and Market America.

15. REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT

Visitors may post comments to the nutraMetrix blog so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a communication or other content. We reserve the right (but we do not have the obligation) to remove or edit such content, but we do not regularly review posted content.

If you do post content or submit material, unless we indicate otherwise, you grant Market America and nutraMetrix a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You also grant nutraMetrix and Market America and their sublicensees the right to use the name and photos that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to, or violate any rights of, any person or entity. We reserve the right (but do not have the obligation) to monitor and edit or remove any activity or content. We take no responsibility and assume no liability for any content posted by you or any third party.

16. RISK OF LOSS

The risk of loss and title for all items purchased from nutraMetrix and/or Market America pass to you upon our delivery of the items to the shipper.

17. PRODUCT / SERVICE DESCRIPTIONS

We make every attempt to provide you with accurate information. However, we do not warrant or guarantee that product and service descriptions or other contents of the Site are accurate, complete, reliable, current, or error-free. If a product or service offered for sale by us is not as described, your sole remedy is to return it to us in unused condition for a refund, as set forth in the nutraMetrix Return Policy. If a product or service offered by Linked-To Merchant is not as described, you have no remedy against nutraMetrix or Market America. Your sole remedy will be against the offending Linked-To Merchant.

18. PRICING

Except where noted otherwise, the Price displayed for products on our Web site represents the full retail price of the product. Despite our best efforts, a small number of the items offered for sale on the Site may be mispriced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Please note that this policy applies only to products sold and shipped by nutraMetrix or Market America. Linked-To Merchants may follow different policies in the event of a mispriced item.

19. MODIFICATION OF SITE POLICIES AND THESE TERMS

Please review our other policies posted on this Site. These policies also govern your visit to the Site. We reserve the right to change our Site, policies and these Terms at any time, in our discretion. You are responsible for regularly reviewing our policies, these Terms and additional terms posted on particular portions of the Site. Your continued use of the Site constitutes your agreement to all such terms, conditions, policies and notices.

20. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NUTRAMETRIX AND MARKET AMERICA EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER MARKET AMERICA NOR NUTRAMETRIX MAKE ANY WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, OR THAT (iv) ANY ERRORS IN THE SITE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NUTRAMETRIX, MARKET AMERICA OR ANY OF OUR HEALTH PROFESSIONALS OR INDEPENDENT DISTRIBUTORS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

21. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER NUTRAMETRIX, MARKET AMERICA NOR THEIR INDEPENDENT DISTRIBUTORS, HEALTH PROFESSIONALS, LINKED-TO MERCHANTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM (i) THE USE OF, OR THE INABILITY TO USE, THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; (v) MISDIRECTED ORDERS OR LOST PROFITS, LOST REGISTRATIONS, LOST GOODWILL, OR LOST OR STOLEN PROGRAMS OR OTHER DATA; OR (vi) ANY OTHER MATTER RELATING TO THE SITE EVEN IF NUTRAMETRIX, MARKET AMERICA, THEIR EMPLOYEES, INDEPENDENT DISTRIBUTORS, HEALTH PROFESSIONALS OR LINKED-TO MERCHANTS, ARE ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES, LOSSES OR EXPENSES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

22. COPYRIGHT COMPLIANTS

We respect the intellectual property of others. Following is our Notice and Procedure for Making Claims of Copyright Infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed.

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that you claim has been infringed upon;
  • A description of the location on the Site of the material that you claim is infringing;
  • Your address, telephone number, and e-mail address;
  • A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our agent for notice of copyright or other intellectual property infringement can be reached as follows:

By email: copyrights@marketamerica.com

23. CHOICE OF LAW AND VENUE

Any dispute that may arise between you and nutraMetrix and/or Market America, including, without limitation, claims for enforcement, breach or violation of duties or rights under these Terms shall be governed by and adjudicated under the laws of the State of North Carolina, without regard to conflict of laws principles. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Guilford County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of the Site.

24. INDEMNIFICATION

You agree to indemnify and hold nutraMetrix, Market America and their parents, subsidiaries, affiliates, officers, employees, Health Professionals and Independent Distributors harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of your use of, conduct on or content provided to the Site.

25. GENERAL

a. You agree that no joint venture, partnership, employment, or agency relationship exists between you and nutraMetrix as a result of these Terms or use of the Site.

b. We reserve the right to disclose any personal information about you or your use of the Site, including its contents, without your prior permission, if we have a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of nutraMetrix, Market America or their affiliated companies; (3) enforce these Terms; or (4) act to protect the interests of the Independent Distributors, Health Professionals, employees, principals or others involved with nutraMetrix or Market America.

c. Our performance of these Terms is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by us with respect to such use.

d. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms shall continue in effect.

e. Unless otherwise specified herein, these Terms constitute the entire agreement between you, Market America and/or nutraMetrix with respect to the Site and these Terms supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you, Market America and/or nutraMetrix with respect to the Site.

f. A printed version of these Terms and of any notice given in electronic form shall 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.

g. You agree not to resell any merchandise or services you purchase through the Site, unless you are a current nutraMetrix Health Professional. Customers agree to not resell any merchandise or services purchased.

h. We reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders at any time in its sole discretion.