Document

TERMS OF USE

These terms will be effective July 27, 2022

General

Vital Pharmaceuticals, Inc., d/b/a Bang Energy (“Bang Energy,” “we,” “us,” “our,” or “the Company”) owns and operates this website, bangenergy.com. These Terms of Use – General (“Terms of Use”) apply to the website located at bangenergy.com and all associated websites owned or operated by Bang Energy which are linked to bangenergy.com (collectively referred to as the “Site”). BY USING THIS SITE, YOU AGREE THAT YOU HAVE THOROUGHLY READ AND UNDERSTAND THE TERMS OF USE. IF YOU DO NOT UNDERSTAND OR AGREE TO THESE TERMS OF USE, DO NOT USE THE SITE.

These Terms of Use constitute an agreement between you and Bang Energy.

Your access to and use of the Site is subject to these Terms of Use and the Privacy Policy. As long as you comply with these Terms of Use, we grant you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.

Terms and Conditions

The Site contains many of the valuable trademarks, names, titles, logos, images, designs, copyrights and other proprietary materials owned and/or registered by Bang Energy and its affiliates (collectively, the “Materials”). You should assume that all Materials contained on the Site are either the intellectual property of Bang Energy or its affiliates or the intellectual property of third parties. Bang Energy neither represents nor warrants that your use of the Materials will not infringe the intellectual property rights of third parties not owned by or affiliated with Bang Energy.

You may not modify, alter or change any Materials or distribute, publish, transmit, reuse, re-post or use the content of the Site for commercial purposes, including, without limitation, the text, images, audio and video.

Unauthorized use of the Materials is strictly prohibited and is a violation of the rights of Bang Energy, its affiliates, and/or third parties, including, without limitation, under copyright laws, trademark laws, the laws of privacy and publicity.

While Bang Energy uses reasonable efforts to include accurate and up to date information on the Site, we make no warranties or representations as to the accuracy, correctness, and reliability of such information. Bang Energy makes no representations that the Materials presented on this Site are appropriate or available for use in countries other than the United States. Those who do access the Site from other countries are solely responsible for compliance with the local laws of that country. Moreover, Bang Energy does not assume any liability or responsibility for any omissions or errors (including, without limitation, typographical errors and technical errors) contained in the Material contained on the Site.

Information on the Site is subject to change without notice. Information regarding Bang Energy’s products and services is applicable only in the United States, unless otherwise expressly noted. Certain Bang Energy-branded products and services may not be available in certain territories.

Use of the Site is done at user’s own risk. Neither Bang Energy nor any other party involved in creating the Site shall be liable for any direct, incidental, special, consequential, indirect or punitive damages arising out of user’s access to, or use of the Site, or downloading of any materials, data, text, images, video or audio from the Site, including, without limitation, damage to, or viruses that may infect, your computer equipment or other property as a result thereof. Without limiting the foregoing, everything on the Site is provided to you “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.

From time to time, Bang Energy may ask that you transmit to the Site, by e-mail, your feedback on its products and/or services. Any communication or material you transmit or post to the Site will be (a) treated as non-confidential and non-proprietary by Bang Energy, (b) become the property of Bang Energy, in which Bang Energy shall now and hereinafter own all rights, title, and interest therein, and (c) be used without restriction by Bang Energy or its licensees and affiliates at their sole discretion without any obligation, compensation or other liability to you. Such use may be for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting whole or in part, in any medium and in any manner on the Site or otherwise.

Notwithstanding the foregoing, Bang Energy maintains a longstanding policy of not accepting or considering any unsolicited creative ideas, suggestions or materials from the public (“Submissions”) and, therefore, you should not make any Submissions to Bang Energy in any communications through the Site or otherwise. Nonetheless, if you do send us a Submission, despite our request not to do so, then such Submission shall immediately become the property of Bang Energy and we shall exclusively now and hereinafter own all rights, title, and interest therein. Moreover, Bang Energy shall be free to use any Submissions for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. Bang Energy shall not be liable for or be responsible for payment of any compensation for such use or disclosure of such Submission or for any similarities in the Submission and any future Bang Energy uses or activities.

The trademarks displayed on the Site are registered and unregistered trademarks of Bang Energy or its affiliates. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark displayed on the Site, or any license or right to use any other trademark owned by any other third party. In the event that you misuse any trademark in violation of these Terms of Use, Bang Energy will aggressively protect and enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

The Site may link to sites not maintained by or related to Bang Energy. Such hyperlinks are provided as a service to users and are not sponsored by, endorsed or otherwise affiliated with the Site or with the products and services of Bang Energy. Bang Energy has not reviewed all of the sites linked to the Site and is not responsible for the content of any off-site pages or links to any other sites. Viewing all other sites is at your own risk.

In the event that Bang Energy may, from time to time, allow for discussions, chats, postings, transmissions, bulletin boards and the like on the Site, we are under no obligation to monitor or review such transmitted information and assume no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger or inaccuracy of any such information. Nonetheless, the following standards strictly apply to any and all material that you contribute to the Site (“Contributions”) and any associated interactive services:

Contributions must:

  • Be accurate and truthful (when they state facts).
  • Be genuinely held (when they state opinions).
  • Comply with the laws of the United States of America and in any other country where they may be published. Bang Energy will fully cooperate with any law enforcement authorities or court order requesting or directing Bang Energy to disclose the identity of anyone posting any such information or materials.

Contributions shall not:

  • Contain any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability or otherwise violate any law.
  • Infringe any copyright, trademark, right to publicity or right to privacy of any third party entity or individual.
  • Be made in breach of any legal duty owed to any other person, such as a contractual or other duty of confidentiality.
  • Give the impression that they emanate from Bang Energy.

Health Related Information

Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration (“FDA”) and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product labels and packaging prior to use. Information available on or through the Site is not meant to substitute for the advice provided by your doctor or other health care professional. You should not use the information available on or through the Site, including but not limited to information that may be provided by healthcare or nutrition professionals, for diagnosing or treating a health condition or disease.

Mobile Terms of Service

The Bang Energy mobile message service (the "Service") is operated by Bang Energy. Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.

By consenting to Bang Energy’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Bang Energy through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).

You understand that you do not have to sign up for this Service in order to make any purchases, and your consent is not a condition of any purchase from Bang Energy. Your participation in this Service is completely voluntary.

We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of the Service at any time. Text the single keyword command STOP to +18334161252 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Bang Energy mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.

For Service support or assistance, text HELP to +18334161252 or email [email protected]

We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the Service with your new number.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.

We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Policy.

Violation of Terms of Use

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

The Company may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if it determines that you have violated these Terms of Use or other agreements or guidelines that may be associated with your use of the Site.

Any violation by you of these Terms of Use will constitute an unlawful and unfair business practice and will cause irreparable harm to the Company for which monetary damages would be inadequate. You consent to Bang Energy obtaining any injunctive or equitable relief should we deem such action to be necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that the Company may have at law or in equity.

If Bang Energy takes any legal action against you because of your violation of these Terms of Use, the Company will be entitled to recover from you, and you shall be obligated to pay, all reasonable attorneys’ fees (both for outside counsel and in-house counsel) and costs of such action in addition to any other relief granted to Bang Energy. Under no circumstance will the Company be liable to you or any third party for termination of your access to the Site because of any violation of these Terms of Use.

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH THE COMPANY, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

  1. Applicability of Arbitration Agreement. Any dispute or claim relating in any way to your use of the Site or to any products or services sold or distributed by the Company through the Site that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms set forth below, except that you and Bang Energy are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, or when you engage in efforts to interfere with the Site or engage with the Site in unauthorized ways (for example, automated ways). Class actions and class arbitrations are not permitted; you and Bang Energy may bring a claim only on your own behalf and cannot seek relief that would affect other users of the Site. If there is a final judicial determination that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with this provision’s limitations, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision.

  2. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section pursuant to the AAA Consumer Arbitration Rules. If AAA is not available to arbitrate, the parties shall select an alternative ADR Provider. The rules of the ADR Provider (“Arbitration Rules”) shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules conflict with these Terms of Use. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

    The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than five thousand U.S. dollars (US $5,000.00) may be resolved through filing a small claims court action or binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is more than five thousand U.S. dollars (US $5,000.00), the right to a hearing and the location of any such hearing will be determined by the Arbitration Rules and these Terms of Use. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username, email address or phone number you provided to sign up for products or services via the Site, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute you send to us should be mailed to Vital Pharmaceuticals, Inc., Attn: Office of General Counsel, 1600 N. Park Drive, Weston, Florida 33326. Before we commence arbitration, we will send you a Notice of Dispute to the email address you provided when you signed up for products or services on the Site, or other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.

  3. Additional Rules for Non-appearance Based Arbitration. If nonappearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

  4. Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Bang Energy, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms of Use. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.

  5. Waiver of Jury Trial. You hereby waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, INSTEAD ELECTING THAT ALL CLAIMS AND DISPUTES SHALL BE RESOLVED BY ARBITRATION. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and the Company waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.

  6. Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.

  7. Venue. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree that such disputes shall be governed by the laws of the State of Florida without regard to conflict of law principles. You consent to submit to the personal jurisdiction by and venue in the state and federal courts located in Broward County Florida, and you waive any objection to such jurisdiction or venue.

  8. Survival. This Arbitration Agreement will survive the termination of your relationship with Bang Energy.

If any portion of these Terms of Use is deemed unlawful, void or unenforceable, then that part shall be deemed severable and will not affect the validity and enforceability of any remaining provisions.

These Terms of Use set forth the entire understanding and agreement between you and Bang Energy with respect to the Site. You acknowledge that any other agreements, understandings, communications, and negotiations between you and Bang Energy with respect to the Site are superseded by these Terms of Use and our Privacy Policy, the terms of which shall prevail.

We may change our Site and policies, and we may need to make changes to these Terms of Use so that they accurately reflect the Site and our policies from time to time. Bang Energy reserves the right to make these changes in its sole discretion. Unless otherwise required by law, we will notify you (for example, through our Site) before we make changes to these Terms of Use and give you an opportunity to review them before they go into effect. Then, if you continue to use the Site, you will be bound by the updated Terms of Use. You should therefore periodically visit this page to review the then current Terms of Use.

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