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Terms of Use

TERMS OF USE
Revised: December 22, 2021
1. ACCEPTANCE OF TERMS

(a) 5 Star Nutrition, LLC, d/b/a Defyned Brands (“Defyned”) makes this website or online platform and related services (collectively, the “Service”) available for access or use subject to the terms and conditions in these Terms of Use (the “TOU”). Defyned may, in its sole discretion, update the TOU at any time. You can access and review the most-current version of the TOU at the URL for this page or by clicking on the “Terms of Use” link within the Service or as otherwise made available by Defyned.

(b) PLEASE REVIEW THE TOU CAREFULLY. IT IMPOSES BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”). YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 21 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

(c) BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST UNINSTALL ANY COMPONENTS OF THE SERVICE FROM ANY DEVICE WITHIN YOUR CUSTODY OR CONTROL.

(d) You represent and warrant that you are: (i) at least 18 years of age or the age of majority in your jurisdiction, whichever is greater, and of legal age to form a binding contract; or (ii) at least 13 years of age and have obtained the consent of your parent or guardian to access and use the Service and be bound by the TOU. You further represent and warrant that you are not a person barred from accessing or using the Service under the laws of your country of residence or any other applicable jurisdiction.

2. OTHER AGREEMENTS AND TERMS

(a) In addition to the TOU, your access to and use of the Service are further subject to the Defyned Privacy Policy and any usage or other policies relating to the Service posted or otherwise made available to you by Defyned, including any purchase, subscription, delivery or other similar terms posted within the Service (the Privacy Policy and any such usage or other policies, collectively, “Additional Terms”). The Additional Terms are part of the TOU and are hereby incorporated by reference, and you agree to be bound by the Additional Terms.

(b) You acknowledge and agree that: (i) by accessing or using the Service, Defyned may receive certain information about you, including personal information, and Defyned may collect, use, disclose, store and process such information in accordance with the TOU, including any Additional Terms; and (ii) technical processing and transmission of data, including Your Content (defined in Section 9(a)), associated with the Service may require transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.

3. REGISTRATION AND ACCOUNT

(a) You may browse and access some parts of the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Defyned reasonably suspects that you have done so, Defyned may suspend or terminate your account.

(b) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use, and regardless of your knowledge of such use. Upon becoming aware of any unauthorized access to or use of your account or password or any other similar breach of security, you shall promptly notify Defyned. 

(c) If your account remains inactive for three months or longer, Defyned reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Content.

4. SMS AND TEXT MESSAGES

Some portions of the Service may allow you to provide Defyned with your phone number for receipt of certain transaction, marketing and other communications via SMS from Defyned. By providing your phone number, you consent to receipt of such communications at the number provided. Consent is not a condition of any purchase. Message and data rates may apply. Message frequency varies. Reply HELP for help or STOP to cancel. For additional information, please see Messaging Terms and Conditions.

5. FEES AND TAXES

(a) You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Service. Some features of the Service are free to use, but fees may apply for product purchases, subscriptions, premium features and other components. If there is a fee listed for any portion of the Service, by making a purchase or accessing or using that portion, you agree to pay the fee.

(b) Any and all amounts payable hereunder by you are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). You are solely responsible for paying all applicable Taxes, except for any Taxes based upon Defyned’s net income. If Defyned has the legal obligation to collect any Taxes, you shall reimburse Defyned upon invoice by Defyned.

6. EXTERNAL MATERIALS AND THIRD-PARTY SERVICES

(a) The Service or users of the Service may provide links or other connections to other websites or resources. Defyned does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). External Materials are subject to different terms of use and privacy policies. You are responsible for reviewing and complying with such terms of use and privacy policies.

(b) Without limiting the generality of Section 5(a), you acknowledge and agree that, in order for you to access or use the Service, including certain additional functions or features such as use of in-store body composition analyzers, you may be required to sign up for an account with third-party services that are embedded in or work together with the Service (each, a “Third-Party Service”). Access to and use of a Third-Party Service, and a Third-Party Provider’s collection, use, storage, disclosure and processing of data, are subject to the applicable Third-Party Provider’s terms of use and privacy policy.

(c) Notwithstanding Section 5(b), you acknowledge and agree that by accessing or using the Service, Defyned may receive information about you from Third-Party Services relating to your access to or use of the Service. You acknowledge and agree that Defyned’s collection, use, storage, disclosure and processing of such information are subject to the TOU and Defyned’s Privacy Policy, notwithstanding anything to the contrary in the applicable Third-Party Provider’s terms of use or privacy policy.

7. GRANT OF RIGHTS

(a) Defyned grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to: (i) access and view pages within the Service; (ii) access and use any online software, application and other similar component within the Service, to the extent that the Service provides you with access to or use of such component, but only in the form made accessible by Defyned within the Service; and (iii) install, run and operate mobile applications that Defyned makes available for accessing or using the Service (each a, “Mobile App”) on a mobile device that you own or control, but only in executable, machine-readable, object code form.

(b) All rights granted to you under the TOU are subject to your compliance with the TOU, including all Additional Terms, in all material respects and may only be exercised by you for your personal, non-commercial use.

8. IOS MOBILE APPS

(a) If any Mobile App is downloaded by you from the Apple Inc. (“Apple”) App Store (each, an “iOS Mobile App”), the right set forth in Section 6(a)(iii) with respect to such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the Apple App Store Terms of Service.

(b) With respect to any iOS Mobile App, you and Defyned acknowledge and agree that the TOU is concluded between you and Defyned only, and not with Apple, and Apple is not responsible for iOS Mobile Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Mobile Apps. Defyned, not Apple, is responsible for addressing any claims from you or any third party relating to iOS Mobile Apps or your possession and/or use of iOS Mobile Apps, including product liability claims, any claim that iOS Mobile Apps fail to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of the TOU with respect to iOS Mobile Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the TOU against you as a third-party beneficiary hereof with respect to iOS Mobile Apps. Subject to Section 15, Defyned, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Mobile Apps.

9. THIRD-PARTY COMPONENTS

Some components of the Service may be provided with or incorporate third-party components licensed under open source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements relating to such components.

10. RESPONSIBILITY FOR CONTENT

(a) All information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Defyned, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Defyned, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).

(b) Defyned has no obligation to pre-screen Content, although Defyned reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Defyned shall have the right to remove any Content that violates the TOU.

(c) You represent and warrant that: (i) you have all necessary rights and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of another party.

11. RIGHTS TO CONTENT

(a) Defyned does not claim ownership of Your Content. However, you hereby grant Defyned and its service providers a worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to and use of the Service to you and other users; and (ii) monitor and improve the Service. To the extent you have made any portion of Your Content accessible to others through the Service, Defyned may continue to make that portion of Your Content accessible to others through the Service even after: (1) termination pursuant to Section 19; or (2) you have deleted your account or that portion of Your Content from your account.

(b) As between Defyned and you, Defyned owns all rights, title and interest (including all intellectual property rights) in the Service and all improvements, enhancements or modifications thereto, including all Content and other materials therein (except with respect to Your Content). The Service is protected by United States and international copyright, patent, trademark, trade secret and other intellectual property laws and treaties. Defyned reserves all rights not expressly granted to you.

(c) You acknowledge and agree that Defyned may collect or generate Aggregate Data (defined below) in connection with providing you with access to and use of the Service, and you hereby grant Defyned a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose, consistent with the Defyned Privacy Policy. “Aggregate Data” means Your Content or any data generated through your access to or use of the Service that has been aggregated or de-identified in a manner that does not reveal any personal information about you and cannot reasonably be used identify you as the source or subject of such data.

12. USER CONDUCT

In connection with your access to or use of the Service, you shall not (subject to the limited rights expressly granted to you in Section 6):

(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) any applicable law or contractual or fiduciary obligation prohibits you from making available (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any copyright, patent, trademark, trade secret or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses, malware or any other code, files or programs designed to interrupt, destroy, limit the functionality of, make unauthorized modifications to, or perform any unauthorized actions through any software or hardware; or (vi) consists of information that you know or have reason to believe is false or inaccurate;

(b) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service (except for Your Content);

(c) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service;

(d) remove or obscure any proprietary notice that appears within the Service;

(e) access or use the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any other products or services offered by Defyned;

(f) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose;

(g) impersonate any person or entity, including Defyned personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;

(h) forge headers or otherwise manipulate identifiers to disguise the origin of any Content transmitted through the Service;

(i) act in any manner that negatively affects the ability of other users to access or use the Service;

(j) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;

(k) 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;

(l) frame or utilize any framing technique to enclose the Service or any portion of the Service (including Content);

(m) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service, or substantially download, reproduce or archive any portion of the Service;

(n) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account or password; or

(o) violate any applicable local, state, provincial, federal, international or other law or regulation.

13. SUGGESTIONS

If you elect to provide or make available to Defyned any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), you hereby grant Defyned a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make or have made Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.

14. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES

Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services within or through the Service (collectively, “Third-Party Merchants”), including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Third-Party Merchant.

15. MODIFICATIONS TO THE SERVICE

(a) Subject to any Additional Terms, Defyned reserves the right to modify, suspend or discontinue the Service or any product or service to which it connects, with or without notice, and Defyned shall not be liable to you or to any third party for any such modification, suspension or discontinuance.

(b) Defyned may, in its sole discretion, from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service or related products or services (collectively, “Updates”). Defyned may develop Updates that require installation by you before you continue to access or use the Service or related products or services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.

(c) The Service may experience temporary interruptions due to technical difficulties, maintenance or testing, or Updates, including those required to reflect changes in relevant laws and regulatory requirements. Defyned has no obligation to provide any specific content through the Service.

16. INDEMNIFICATION

You agree that Defyned shall have no liability for and you shall indemnify, defend and hold Defyned and its affiliates, and each of their officers, directors, employees, agents, partners, business associates and licensors (collectively, the “Defyned Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, arising from or relating to: (a) Your Content; (b) your violation of the TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your access to or use of the Service.

17. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEFYNED PARTIES EXPRESSLY DISCLAIM: (i) ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (ii) ANY LOSS, DAMAGE OR OTHER LIABILITY ARISING FROM OR RELATING TO EXTERNAL MATERIALS, THIRD-PARTY SERVICES, THIRD-PARTY COMPONENTS OR THIRD-PARTY MERCHANTS, OR ANY OTHER PRODUCTS OR SERVICES NOT PROVIDED BY DEFYNED.

(b) THE DEFYNED PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.

18. LIMITATION OF LIABILITY

(a) THE DEFYNED PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM OR RELTAING TO ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE DEFYNED PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE DEFYNED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF $50 OR THE AMOUNT PAID BY YOU TO DEFYNED (IF ANY) FOR ACCESS TO OR USE OF THE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.

(b) 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 MAY HAVE ADDITIONAL RIGHTS.

19. TERMINATION

(a) If you violate the TOU, all rights granted to you under the TOU terminate immediately, with or without notice to you.

(b) Upon termination of the TOU for any reason: (i) you must immediately cease accessing or using the Service; (ii) Defyned may remove and discard Your Content and delete your account; (iii) any provision that, by its terms, is intended to survive the termination of the TOU will survive such termination; and (iv) all rights granted to you under the TOU will immediately terminate, but all other provisions will survive termination.

20. GOVERNING LAW

The TOU will be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.

21. BINDING ARBITRATION AND CLASS ACTION WAIVER

(a) ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

(b) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas, or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

(c) YOU AND DEFYNED EACH: (i) AGREES THAT ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 21 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND DEFYNED EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

(d) Notwithstanding anything to the contrary, you and Defyned may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 21.

(e) If Defyned implements any material change to this Section 21, such change will not apply to any Claim for which you provided written notice to Defyned before the implementation of the change.

22. LEGAL COMPLIANCE

(a) The Service may be subject to United States export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State.

(b) You represent and warrant that you are not: (i) located in a country that is subject to a United States Government embargo or sanctions or designated by the United States Government as a “terrorist supporting” country; and (ii) listed on any United States Government list of prohibited or restricted parties, including the Specially Designated Nationals List. You further represent and warrant that you will access and use the Service in compliance with all applicable laws and regulations, including all such laws and regulations relating to EAR, OFAC and ITAR.

23. UNITED STATES GOVERNMENT ENTITIES

This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.

24. NO THIRD-PARTY BENEFICIARIES

You acknowledge and agree that there are no third-party beneficiaries to the TOU, except for the Defyned Parties and Apple (as set forth in Section 7).

 

25. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Defyned’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Defyned’s Agent for Notice of Copyright Claims can be reached as follows:

5 Star Nutrition, LLC, d/b/a Defyned Brands
Attn: Agent for Notice of Copyright Claims
8500 Shoal Creek, Bldg 4, Suite 150
Austin, TX 78757
Phone: ‪‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬888.301.0065 ‬‬
Email: info@defynedbrands.com


26. CALIFORNIA USERS AND RESIDENTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, by telephone at (800) 952-5210, or as otherwise set forth at https://www.dca.ca.gov/about_us/contactus.shtml (or a successful URL).

 

27. GENERAL PROVISIONS

The TOU (together with the Additional Terms) constitutes the entire agreement between you and Defyned concerning your access to and use of the Service. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Defyned with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms, the TOU will take precedence and govern. The TOU may not be amended by you except in a writing executed by you and an authorized representative of Defyned. For the purposes of the TOU, the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of Defyned. Defyned may assign or delegate any of its rights or obligations under the TOU without your consent. The failure of Defyned to exercise or enforce any right or provision of the TOU will not constitute a waiver of such right or provision. If any provision of the TOU is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by Defyned hereunder due to any act of god, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities, insurrection or any other cause beyond Defyned’s reasonable control will excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

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