Vita-Mix Corporation ("Vita-Mix") maintains this site (the "Site") so that you can shop for our products and for your personal entertainment, information, education and communication. Please feel free to browse this Site. The units sold on vitamix.com are not for resale. Purchasing for resale may void product warranties. You may download material displayed on this Site for non-commercial, personal use only, provided you also retain the copyright and other proprietary notices contained on the materials. You may not, however, distribute, modify, broadcast, transmit, reuse, report, or otherwise use the contents of this Site for public or commercial purposes, or copy or post the material displayed on this Site on any network computer or server, including the text, images, audio, and video without Vita-Mix's written permission.
Your access and use of this Site is also subject to the following terms and conditions ("Terms and Conditions") and all applicable laws. By accessing and browsing this Site, you accept, without limitation or qualification, the Terms and Conditions.
Terms and Conditions
- Site Use and Protections. Vita-Mix grants you a non-exclusive, non-transferable, non-assignable limited right to use the contents of this Site for your personal use. Any unauthorized use of this Site will terminate your limited right immediately and you will be responsible for any violation of law, including any trademark, trade name or copyright laws that may result. You should assume that everything you see or read on this Site is copyright protected unless otherwise noted and may not be used except as provided in these Terms and Conditions or in the text on this Site without the express written permission of Vita-Mix. Vita-Mix shall retain the exclusive right, title and interest in and to any material you see, read, experience or download from this Site. Vita-Mix does not represent or warrant to you that your use of materials displayed on this Site will not infringe the rights of other third parties who are not owned by or otherwise affiliated with Vita-Mix.
- Disclaimer of Accuracy; Changes to Site. While Vita-Mix uses reasonable efforts to include accurate and up-to-date information on this Site, Vita-Mix makes no warranties or representations as to its accuracy. Vita-Mix assumes no liability or responsibility for any errors or omissions in the content on this Site. Vita-Mix reserves the right to update and revise these Terms and Conditions or make changes to these web pages at any time without notice. You are bound by any such revisions and changes and should therefore periodically visit this page to review the then current Terms and Conditions to which you are bound. Your continued use of this Site shall be your unqualified acceptance of any such revisions, changes or any new information provided therein.
- Products and Product Information. Prices posted on this Site are quoted in U.S. dollars only. In addition, there may be errors or inaccuracies on this Site relating to products, product descriptions, pricing, terms and conditions of sale, shipping and delivery time or product availability. Vita-Mix reserves the right to change, correct or update such product information at any time, even after you have placed your order. Vitamix also reserves the right to limit quantity available for purchase of any product at any time without notice. In the event of a product pricing error, Vita-Mix will notify you and will wait for your final approval of the corrected pricing before completing your order.
- Disclaimer or Use; Limitation of Liability. Your use and browsing of this Site is at your risk. Neither Vita-Mix nor any other party involved in creating, producing, or delivering this Site is liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to, use of or inability to use this Site. Without limiting the foregoing, everything on this Site is provided to you "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, 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. Vita-Mix shall not be responsible or liable for any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in this Site or your downloading of any materials, data, text, images, video, or audio from this Site.
- User Provided Information and Communication. You should not send confidential or protected information or creative materials to us via this Site that you do not want to become the exclusive property of Vita-Mix. Any communication or material you transmit or post to this Site, including any data, questions, comments, notes, suggestions, or the like is, and will be treated as, non-confidential, non-proprietary and unprotected information. Anything you transmit or post to this Site shall be deemed to have been assigned to Vita-Mix, shall remain the exclusive property of Vita-Mix and may be used anywhere and in any medium, without compensation to you, by Vita-Mix or its affiliates, for any purpose, including but not limited to reproduction, disclosure, transmission, publication, broadcast, licensing and posting. Furthermore, Vita-Mix is free to use, without compensation to you, any ideas, concepts, know-how, techniques or other intellectual property contained in any communication you send to this Site for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products using such information.
- Copyright Protection and Enforcement. Images of people, places or things displayed on this Site are either the property of, or used with permission by, Vita-Mix. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms and Conditions or by other specific permission provided elsewhere on this Site. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
- Trademark; Service Mark and Trade Name Protection and Enforcement. The trademarks, logos, and service marks (collectively the "Trademarks") displayed on this Site, are registered and unregistered Trademarks of Vita-Mix and others. In addition, page headers, graphics, icons and scripts are service marks and protected intellectual property of the Company and may not be copied, used or imitated without prior written consent of Vita-Mix. Nothing contained on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Site without the express written permission of Vita-Mix or such third party that may own the Trademarks displayed on this Site. Your misuse of the Trademarks displayed on this Site, or any other content on this Site is strictly prohibited. You are also advised that Vita-Mix will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
- Prohibited Uses and Content. Although Vita-Mix may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on this Site, Vita-Mix is under no obligation to do so and assumes 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 contained in any information contained within such locations on this Site. You are prohibited from posting or transmitting 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; otherwise violate any law; interfere with anyone else's use or privacy; or contain any false, deceptive or misleading statements. Vita-Mix will fully cooperate with any law enforcement authorities or court order requesting or directing Vita-Mix to disclose the identity of anyone posting any such information or material(s) and may remove, edit or otherwise change any such material(s) posted.
- Your Account. As a condition to your continued access to and use of this Site, you agree: (a) you will protect your username and password; (b) you will assume full responsibility and liability for all Site activity under your account; (c) the Vita-Mix products for sale on this Site are for purchase by adults ages 18 and over; (d) by using this Site you hereby represent and warrant that you are 18 years old or over; and (e) Vita-Mix reserves the right and you hereby acknowledge its right to cancel your account or block or otherwise prevent your future access to or use of this Site.
- U.S. Law. Vita-Mix controls and operates this Site from its headquarters in Cleveland, Ohio, in the United States of America. Vita-Mix in no way implies that the materials on this Site are appropriate or available for use outside of the United States. If you use this Site from locations outside of the United States, you are responsible for compliance with any applicable local laws. In addition, you may not use or export the materials or products available from this Site in violation of U.S. export laws and regulations.
Please read this agreement carefully. It sets forth the legally binding terms and conditions for your participation in the Vitamix rewards program.
Vita-Mix Management Corporation (“Vitamix”) offers rewards (this “Program”), which is a rewards platform where eligible persons have an opportunity to accumulate Points (defined below) by participating in offered activities, subject to the terms and conditions set forth in these terms of service (these “Terms”). This Program is operated and administered on behalf of Vitamix by a service provider, CrowdTwist, Inc. (“CrowdTwist”). As used in these Terms, the terms “we,” “us,” and “our” shall be deemed to collectively refer to both Vitamix and CrowdTwist.
By accessing or participating in the Program, you accept and agree to be legally bound by these Terms, whether or not you sign-up as a Member (defined below) of the Program. If you wish to become a Member and participate in the Program, please read these Terms and indicate your acceptance to these Terms by following the instructions in the Program sign-up process. It is important that you review these Terms regularly. We may impose limits on certain features, activities, promotions or services and may restrict, suspend, terminate your access to the Program, in whole or in part, at any time and for any or no reason, with or without prior notice and without liability.
Each time you access and/or use the Program, you agree to be bound by and comply with these Terms and any Additional Terms (defined below). If you do not agree to these Terms, please do not participate in the Program. The business realities associated with operating the Program are such that, without the limitations that are set forth in these Terms – such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – we would not make the Program available to you.
Table of Contents
- Program Sign-Up
- Earning Points
- Member-Required Disclosures and Representations and Warranties
- Timing and Termination
- Content, Ownership, Limited License and Rights of Others
- Terms Applicable to User-Generated Content
- Member Disputes
- Code of Conduct
- Program and Content Use Restrictions
- Linked Sites; Advertisements; Dealings with Third Parties
- Limitation on Liability
- Our Rights
- Dispute Resolution
- Waiver of Injunctive or Other Equitable Relief
- Update to Terms
- Communications, Notices and Customer Service
- General Provisions
1. Eligibility. To participate in the Program, you must be at the time of Program enrollment: (i) at least eighteen (18) years of age; (ii) a legal resident and physically located in the United States of America or Canada (“Locations”); and (iii) have a Vitamix.com account. If you don’t have a Vitamix.com account (“Online Account”) and would like to create one, please visit Vitamix.com/rewards. In order to access and use the Program, Members must have a Device (defined below) that is capable of accessing the Internet.
2. Program Sign-Up. To become a Member, eligible individuals may sign-up for this Program by logging-in to their Online Account. You must accept these Terms, and provide additional information during the Program enrollment. Enrolled persons will also have an account related to the Program (referred to herein as the “Member Account”) that is accessible through your Online Account. Individuals who sign-up for the Program and receive a Member Account are referred to in these Terms as, “Members.” Participation in the Program constitutes Member’s full and unconditional agreement to these Terms and Vitamix’s and CrowdTwist’s decisions, which are final and binding in all matters related to the Program.
In connection with your Online Account and the Member Account, you agree that: (i) You will provide true, accurate, current, and complete information about yourself in connection with the sign-up process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (ii) You are solely responsible for all activities that occur under your Online Account and Member Account – whether or not you authorized the activity; (iii) You are solely responsible for maintaining the confidentiality of your Online Account password and for restricting access to your Device so that others may not access the Program or your Member Account using your name, username, or password; (iv) You will immediately notify us of any unauthorized use of your Online Account, Member Account, password, or username, or any other breach of security by calling us at the following phone number: (800) 848-2649; and (v) You will not sell, transfer, or assign your Online Account or Member Account. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, or any applicable law, then we may suspend or terminate your participation in the Program. We also reserve the more general and broad right to terminate your Online Account or Member Account or suspend or otherwise deny you access to either of them or their benefits – all in our sole discretion, for any reason, and without advance notice or liability.
3. Earning Points. The Program offers Members the ability to accumulate and redeem rewards points (“Points”), on an individual basis and solely for Member’s own Member Account. In order to earn points, members must be logged-in to their Online Account. The Program is structured to offer certain benefits based on the Member’s current balance of “redeemable” Points (that is, Points that have not previously been redeemed) or “lifetime” Points (that is, all prior Points accumulated by Member, whether previously redeemed or not). From time to time, we may establish, at our sole discretion, activities pursuant to which Members may “earn” Points (“Qualifying Activities”). Examples of “Qualifying Activities” include, but are not limited to, becoming a Member, writing a product review, visiting or watching a video, or engaging in certain specified activities related to social networks. Qualifying Activities may be added, discontinued or be made available again, at any time, and from time to time. Points may expire (and become non-redeemable) after 18 months or upon discontinuation of the Program. In such event, notice of termination and expiration of Points will be posted on the Program. Please note that we reserve the right to institute additional expiration dates for Points, as determined in our sole discretion. Actions (even if they are considered Qualifying Activities) taken prior to Program sign-up are not eligible to earn Points, except to the extent expressly indicated, if any. Points can be tracked in your Member Account, which can be accessed through your Online Account. Points are always subject to verification and eligibility determined by us, in our sole and absolute discretion.
We reserve the right, in our sole discretion, at any time during the duration of this Program, all as set forth in these Terms, to: (i) change the number of Points awarded, or to award no Points, for any particular Qualifying Activity, (ii) offer additional or new Qualifying Activities for a limited time or permanently, (iii) delete any or all means to earn Points, (iv) limit the number of times or frequency a Member may earn Points for engaging in a Qualifying Activity or engaging in the activity during a specific time period, and (v) offer Points earning opportunities to select groups of Members. Also, Vitamix may offer Points for engaging in a Qualifying Activity under one set of rules for one promotion, and may opt not to offer Points for engaging in that same activity under a subsequent promotion. Once a Qualifying Activity has been successfully completed and verified, the corresponding number of Points will appear in your Member Account. Points will be awarded within 48 hours for most activities, while others will take up to 1 week based on data processing. For some Qualifying Activities, if you reverse your performance of such activity, the Points awarded to you for such activity may be removed from your redeemable total.
Each Member will be responsible for ensuring the accuracy of his/her Program Point totals. If a Member believes his/her Program Point total is not accurate, or that Points earned were not credited, please call us at the following phone number: (800) 848-2649 within 7 days of the end of the applicable activity. Points subsequently determined, in the sole discretion of Vitamix, to be invalid, will be removed from a Member’s Point accumulation total.
Any Points you earn by completing a Qualifying Activity are considered a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right solely for use towards the earning of rewards. Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your Points, which remain Vitamix property at all times. Points have no “real world” value and are not redeemable for cash, transferable or assignable for any reason or otherwise by operation of law. Points have no purpose or use except in exchange for rewards (if any) offered via the Program. Accordingly, you may not purchase, sell, barter, or trade any Points, or offer to purchase, sell, or trade any Points or other virtual items. Any attempt to combine or transfer Points will result in disqualification from the Program and forfeiture of all Points in the Member Account. Points will not be valid unless earned in strict compliance with the requirements as established and intended by us, and Member shall not attempt to earn Points by any means (including, without limitation, by using any script, bot or other automated means) that only simulates compliance with the applicable requirements. Vitamix reserves the right to take any other or additional action it deems appropriate, in its sole discretion, in the event that Vitamix believes, in its sole discretion, that a Member (or Members) has violated these Terms. You agree to abide by Vitamix’s final and binding decisions regarding the Program and your participation in it.
4. Member-Required Disclosures and Representations and Warranties. In connection with certain Qualifying Activities, from time to time, Members will have access to Content (defined below) that is made available through the Program. Each Member who submits or shares Content or User Content (defined below) on third party social sharing sites, such as facebook.com, twitter.com, instagram.com (the “Approved Sites”), in connection with this Program is required by these Terms and by law to disclose anything of value that is received by the Member from Vitamix or CrowdTwist as encouragement for the Member’s sharing of such content.
You acknowledge and agree that if any such disclosures are included by Vitamix within any messaging that you share from the Program, you will not edit, alter or otherwise remove these disclosures from the message. You acknowledge that any failure to abide by the requirements set forth in the previous sentence may result in the termination of your Member Account and forfeiture of all your Points. You may not share Content or otherwise disclose your participation in the Program on your own without disclosing anything of value that you received from Vitamix or CrowdTwist as encouragement for your sharing of such content. Each social media sharing activity available in rewards will instruct you whether or not you need to disclose your connection to the Program and if so, how you should make such disclosures. Members agree and represent and warrant to the following statements:
- I will not post any information or content or conduct any activity that may violate, or which encourages the violation of, applicable local, state or federal laws or regulations and will promptly remove any such content upon request by Vitamix or CrowdTwist.
- I will not post any information or content that may infringe any intellectual property or other right of any third party and will promptly remove any such third party content upon request by Vitamix or CrowdTwist.
- I have read and will fully comply with the Federal Trade Commission’s (“FTC’s”) Endorsement and Testimonial Guides (“Guides”) (https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf) when talking or writing about Vitamix.
Further, and without limitation, I:
- Will clearly and conspicuously disclose that I have received compensation and product and/or other incentive items from Vitamix (as applicable) proximate to any mention by me of Vitamix;
- Will not make any false, misleading or deceptive statement about Vitamix’s products or services;
- Ensure that all my statements accurately reflect only my honest, current opinions and beliefs based on my personal experience;
- Will not purport to speak on behalf of Vitamix; and
- Maintain my social media activities related to this Program in a manner appropriate for a family audience and will not be rude or abusive.
I will follow the guidance at https://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking.
- I will strictly comply with all applicable Approved Site terms of service, membership agreements, privacy policies, and other similar applicable governing documents of any third-party sites, services or venues that I use in performing Program activities, including, without limitation, Twitter’s Terms of Service and Facebook’s Statement of Rights and Responsibilities.
- Rewards Generally. Once earned, Points will be deposited into your Member Account profile (within 7 days) and can be used to acquire rewards such as merchandise, offers and other items of value from the rewards section of the Program, while supplies last. From time to time, we may offer rewards for all Members who have achieved certain Point thresholds or engaged in certain Qualifying Activities, as described at the Program. The rewards section of the Program will list the corresponding Point value required to redeem each item. Members must comply with individual item restrictions where indicated on the rewards section of the Program. We may periodically modify the list of merchandise and other items available for Point redemption as well as the Points needed to receive a reward throughout the Program Period (defined below). All redemptions are subject to these Terms and all limitations or requirements on the Program. Qualifying Activities are likely to be available on a time-limited basis and, when they expire, may no longer be available.
- Redemption of Points. To spend/redeem your Points, navigate through the items listed on the rewards section of the Program. You can choose any item still available for which you have accumulated sufficient Points for redemption. Click the image corresponding to the item you wish to redeem and follow the links and instructions to complete the redemption process. As part of the redemption process, you will receive a confirmation email. Emails will be sent to the email address associated with the Member’s Online Account. The total number of Points a Member can use to redeem an item at any given time is the total number of Points available in their Member Account at the time of redemption. Once a Member has ordered an item from the rewards section of the Program, the order is final and the appropriate number of Points will be deducted immediately from their Member Account.
- Provide Accurate Information. Each Member is responsible for ensuring the mailing address, email address, phone number, and any other contact information associated with his/her Online Account is accurate and up to date. We are not responsible for non-receipt of an item shipped to the mailing address associated with a Member’s Online Account. Changes to Online Accounts, Member Accounts, or the information in them should only be made by the Member to whom such accounts belong.
- Points Redemptions are Final. All Points redemptions for items are final. Points will not be refunded or placed back in a Member’s quantity of redeemable Points for any reason after an order has been placed and merchandise may not be returned for any reason.
- Rewards with Limited Availability. Some items available in the rewards section of the Program may be available in limited quantities, or for a limited time, and will be noted as such. Once the total available number of any such item has been claimed, or once the limited time to redeem such an item has expired, that item will be removed from the rewards section of the Program. If there is a particular reward offered that you would like to receive, you should redeem your Points for that reward as soon as possible (once you have enough Points) because supplies or redemption time may be limited and the Program may be discontinued at any time in our sole discretion. Many rewards are awarded on a first-come, first-served and while-supplies-last basis. If you redeem your Points for a reward and we determine that the reward was unavailable, out of stock or for whatever reason cannot be provided to you, we will “refund” the Points that you exchanged for the reward.
- Forfeiture of Points. Any Points remaining in a Member Account days after the Program End Date (defined below) will be forfeited without compensation. Points have no cash value and are only redeemable for items offered via the Program.
- Points Conversion. From time to time we may make items available in the rewards section of the Program that will allow you to convert your accrued Points into rewards such as gift cards or similar items based on a pre-determined conversion ratio set by us. You understand and agree that we may set the Points conversion ratio for any such rewards in our sole and absolute discretion and we may change such conversion ratio at any time throughout the Program Period. The conversion ratio for Points into rewards may vary among retailers or rewards providers and all details regarding the specific conversion ratio applicable to a reward will be provided in the rewards section of the Program. We also reserve the right to charge you an administrative fee such as a processing or handling fee when converting your Points to a form of gift card (or similar reward item) and you agree to pay any such amounts if requested by us at the time of Points redemption.
- Rewards Sweepstakes. From time to time, as part of the Program activities, Vitamix may elect to conduct sweepstakes, some of which may be open for entry only to Members and others of which may be open to the general public (each a “Sweepstakes”). All Sweepstakes are subject to all rules, terms and conditions of the Sweepstakes, and described in the Official Rules that accompanies the Sweepstakes. Methods of entry into the various Sweepstakes will be detailed in the Official Rules.
- Release and Taxes. Members agree to sign an affidavit, release of liability, publicity release or similar agreement if requested by us prior to receiving your reward. Members are responsible for all applicable taxes, including income tax liability, associated with any item acquired under the Program. Vitamix or CrowdTwist will issue an IRS Form 1099 to Members obtaining any item(s) with a combined total value equal to $600 or more in any single calendar year. Members obtaining any item(s) with a combined total value equal to $600 or more in any single calendar year will be required to provide his/her Social Security Number within the timeframe specified for tax reporting purposes prior to the shipment of the item(s). An IRS Form 1099-MISC will be issued to him/her for the total value of all items awarded for the tax year in which the item(s) are awarded.
- Other Terms Applicable to Rewards. Rewards, other than those which are digital in nature (which include any products or services that a Member can redeem Points for) are provided "as is" with no warranty or guarantee, either express or implied by us. Points are not your personal property, and are not descendible, may not be inherited, bartered or sold to any third party. You cannot transfer Points nor have rewards sent to any third party. Points may not be redeemed with us for money or exchanged with any third party for money. The only way to use Points is to redeem them for Program rewards to be sent to you. Products made available as rewards may be refurbished products. Some rewards may have age eligibility requirements. We reserve the right to verify your eligibility qualifications prior to fulfilling a reward.
- Delivery of Rewards. Many rewards available through the Program will be fulfilled electronically, such as by digital gift card. Rewards which are electronic or digital in nature will be sent to the email address that you provided when you created, or last updated, your Online Account. Tangible rewards items will be mailed to your U.S. postal address that you provided when you created, or last updated, your Online Account. Some rewards will be fulfilled by third-party partners and may not be available in some areas. No rewards will be shipped to P.O. Boxes, APO (Army Post Office) or FPO (Fleet Post Office) addresses, or destinations outside the Locations. Rewards shipped via postal mail will be shipped within approximately eight (8) to twelve (12) weeks from the date your order is processed, unless the Program states a different schedule or the particular reward you ordered is limited in quantity, backordered, or out of stock. We are not liable for any damages to, losses of or delays in any shipments. Rewards that are undeliverable for whatever reason (including because your Program information is incorrect) will not be re-sent and are forfeited, and the Points will not be refunded. The method used to transmit rewards to Members will be chosen by Vitamix and will not be subject to variance at Member’s request.
6. Timing and Termination. The "Program Period" will begin June 2019 and will end on a date to be determined in Vitamix’s sole and absolute discretion, which date shall be posted on the Program or sent to you via email (the "Program End Date"). Vitamix makes no guarantee or representation as to the length of time during which the Program will be offered, and the Program could end at any time. Vitamix reserves the right to cancel, modify, restrict, suspend or terminate this Program or any aspect or feature of the Program, including Points, and/or extend or shorten the current Program Period at any time without notice. After the Program End Date, Members will no longer be permitted to earn or redeem Points, all Points will expire and the Program will no longer be available, and no further liability will be owed by us to any Member.
These Terms will remain in full force and effect while you use the Program and/or are a Member. We may suspend or terminate your membership for any reason, at any time. If we suspend or terminate you because you have breached these Terms, you may either be terminated from the Program or otherwise be restricted by us from redeeming Points or earning more Points until such time (if ever) when we reinstate your membership (at our discretion). In the event that you are terminated as a Member, we may elect to immediately void all of your accumulated Points and, in such instance, you shall not be entitled to redeem Points for any items. Even after your participation is terminated, these Terms will remain in effect. We reserve the right, at our sole discretion, to pursue all of our legal remedies, including, but not limited to, deletion of your Online Account, Member Account, and submitted User Content, from the Program upon any breach by you of these Terms. If you wish to discontinue your participation in this Program, please contact us at (800) 848-2649.
7. Content, Ownership, Limited License and Rights of Others.
- Content. The Program contains a variety of: (i) materials and other items relating to Vitamix and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the "look and feel" of the Program, and the compilation, assembly, and arrangement of the materials of the Program and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Vitamix and CrowdTwist (collectively, "Trademarks"); and (iii) other forms of intellectual property (all of the foregoing, collectively "Content").
- Ownership. The Program (including past, present, and future versions) and the Content are owned or controlled by Vitamix, CrowdTwist and/or our licensors and certain other third parties. All Content included on the Program is used with the permission of Vitamix, such as text, graphics, logos, icons, images, and audio clips. All right, title and interest in and to the Content available on the Program is the property of Vitamix or our licensors or certain other third parties and is protected by United States and international copyright, trademark, patent or other intellectual property rights to the fullest extent possible.
- Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Vitamix grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a "Device") for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Program explicitly for you for use as part of or to be incorporated into your User Content ("Vitamix Licensed Elements"), but only for such purposes as may be explicitly stated at the time that the Vitamix Licensed Elements are made available on the Program; but we and our licensors and certain other third parties, as the case may be, retain ownership of such Vitamix Licensed Elements. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Vitamix’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content and/or Vitamix Licensed Elements, subject to certain Additional Terms. You may not distribute, modify, transmit, reuse, re-post, or use the Content on the Program for public or commercial purposes, including the text, images, audio, and video without Vitamix’s written permission.
- Rights of Others. When using the Program, you must respect the intellectual property and other rights of Vitamix and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Vitamix respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Program, then please contact Vitamix at Legal@vitamix.com or (800) 848-2649.
8. Terms Applicable To User-Generated Content.
- General. Vitamix may now or in the future offer Members the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Program messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, but excluding Vitamix Licensed Elements included therein, “User Content”). Vitamix may allow you to do this through forums, blogs, message boards, social communities, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content. You agree and understand that you may not post, upload, display, share, distribute, transmit, or submit through or in connection to the Program any personally identifiable information.
- License to Vitamix of Your User Content. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User Content, you hereby grant to Vitamix, and you agree to grant to Vitamix, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine the same with other materials, and (b) use the User Content and any ideas, concepts, know-how, or techniques contained therein for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Vitamix to your User Content, you also hereby grant to Vitamix, and agree to grant to Vitamix, the unconditional, perpetual, irrevocable right to use and exploit your name, username, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, royalties, consideration, or remuneration for any of the rights granted in this Section 8.
- Vitamix’s Exclusive Right to Manage our Venue. Vitamix may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any User Content on the Program or any of its social media channels, www.vitamix.com, or other digital properties or channels, and Vitamix may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of or participation in User Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including without limitation, the content restrictions set forth in the Code of Conduct.Such User Content submitted by you or others need not be maintained on the Program by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content in connection with the Program or elsewhere.
- Representations and Warranties Related to Your User Content. Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, as to that User Content: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant Vitamix the rights to it that you are granting by these Terms and any Additional Terms; (b) the User Content is accurate; (c) the User Content does not and, as to Vitamix’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; (d) the User Content will not violate these Terms (including the Code of Conduct) or any Additional Terms, or cause injury or harm to any person; (e) our use of the User Content does not require any payment to any person or entity and does not violate the rights of nor require the license, authorization, approval, or consent by any other person or entity; and (f) you have not received any compensation of any kind for the User Content, unless properly disclosed pursuant to FTC guidelines.
- Enforcement. Vitamix has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Vitamix’s cost and expense, to which you hereby consent and irrevocably appoint Vitamix as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). You acknowledge and agree that you do not acquire any ownership or other rights in the intellectual property or other information and materials of Vitamix.
9. Member Disputes. You are solely responsible for your interactions with other Members, whether online or offline. We are not responsible or liable for the conduct or content of any Member. Vitamix reserves the right, but have no obligation, to monitor or become involved in disputes between you and other Members. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
10. Code of Conduct. You understand and agree that Vitamix may review and delete any User Content that in the sole judgment of Vitamix violates these Terms or which might be offensive, inconsistent with what is appropriate in our Program, illegal, or that might violate the rights, harm, or threaten the safety of Members. The following is a list of the kind of User Content that is prohibited on the Program. Vitamix reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including, without limitation, removing the offending User Content from the Program and terminating the membership of such violators. Content that violates the “Code of Conduct” includes, but is not limited to, User Content that:
- is patently offensive, such as User Content that promotes racism, discrimination, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person or any cursing, stalking, insuring comments, personal attacks or gossip;
- involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”, or flooding;
- contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
- displays obscene, pornographic or sexually explicit material of any kind or is defamatory or slanderous;
- promotes any infringing, illegal, or other similarly inappropriate activity;
- impersonates any other person, user, or company, or may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company;
- contains personal identifiable information;
- solicits personal information from anyone; and
- engages in commercial activities and/or sales without Vitamix’s prior written consent, including, but not limited to, contests, sweepstakes, barter, advertising, and pyramid schemes.
Even though all of this is strictly prohibited, there is a small chance that Members might become exposed to such items and each Member further waives Member’s right to any damages (from any party) related to such exposure.
Your participation in the Program is subject to these additional rules that are part of our Code of Conduct:
- Your User Content. All of your User Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User Content or has any rights to your User Content, or if anyone appears in the User Content, then you must also have their permission to submit such User Content to Vitamix. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Vitamix as your User Content, then you must obtain your friend’s and the photographer’s permission to do so.)
- No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Program, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
- Don’t Damage the Site or Anyone’s Computers or Other Devices. Your User Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Program or any computer or other Device.
- Don’t Share Other Peoples’ Personal Information. Your User Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Vitamix.
If you submit User Content that we reasonably believe violates this Code of Conduct, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Program. If you discover any content that you feel constitutes an alleged infringement of intellectual property rights, contact Vitamix at Legal@vitamix.com or (800) 848-2649.
11. Program and Content Use Restrictions.
- Program Use Restrictions. You agree that you will not: (i) use the Program for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) transmit any chain letters or junk email to other Members; (iii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iv) engage in any activities through or in connection with the Program that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Vitamix; (v) reverse engineer, decompile, disassemble, reverse assemble, or modify any site source or object code or any software or other products, services, or processes accessible through any portion of the Program; (vi) engage in any activity that interferes with a user’s access to the Program or the proper operation of the Program, or otherwise causes harm to the Program, Vitamix, or other Members of the Program; (vii) interfere with or circumvent any security feature of the Program or any feature that restricts or enforces limitations on use of or access to the Program, the Content, or the User Content; or (viii) otherwise violate these Terms or any Additional Terms.
- Content Use Restrictions. You also agree that, in using the Program: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Program by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content (other than to the extent of your permitted use of the Vitamix Licensed Elements, if applicable); (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or websites, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Vitamix or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
- Availability of Program and Content. Vitamix may immediately suspend or terminate the availability of the Program and Content (and any elements and features of them) in whole or in part for any reason, in Vitamix’s sole discretion, and without advance notice or liability.
- Reservation of All Rights Not Granted as to Content and Program. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Program. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Vitamix and its licensors and other third parties. Any unauthorized use of any Content or the Program for any purpose is prohibited.
12. Linked Sites; Advertisements; Dealings with Third Parties.
- Linked Sites; Advertisements. The Program may contain other links to sites that are controlled by third parties (“Linked Sites”). Those Linked Sites are not controlled by Vitamix, and Members acknowledge that Vitamix is not responsible for the content of any such Linked Site or any link contained in a Linked Site. Vitamix provides such links only as a convenience, and the inclusion of any link does not imply endorsement by Vitamix of any Linked Site. Vitamix does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Vitamix is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Sites. Finally, Vitamix will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Vitamix disclaims all liability in connection therewith.
- Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Program (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Vitamix disclaims all liability in connection therewith.
13. Disclaimers. YOUR ACCESS TO AND USE OF THE PROGRAM IS AT YOUR SOLE RISK. THE PROGRAM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Vitamix, CrowdTwist, their parent companies and each of their respective subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, “Program Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- the Program (including the Content and the User Content);
- the functions, features, or any other elements on, or made accessible through, the Program;
- any products, services, or instructions offered or referenced at or linked through the Program;
- security associated with the transmission of your User Content transmitted to Vitamix or via the Program;
- whether the Program or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- whether the information (including any instructions) on the Program is accurate, complete, correct, adequate, useful, timely, or reliable;
- whether any defects to or errors on the Program will be repaired or corrected;
- whether your access to the Program will be uninterrupted;
- whether the Program will be available at any particular time or location; and
- whether your use of the Program is lawful in any particular jurisdiction.
Except for any specific warranties provided herein or in additional terms provided by a Program Party, Program Parties hereby further disclaim all warranties, express or implied, including the warranties of merchantability, fitness for a particular purpose, non-infringement or misappropriation of intellectual property rights of third parties, title, custom, trade, quiet enjoyment, system integration, and freedom from computer virus.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
14. Limitation on Liability. UNDER NO CIRCUMSTANCES WILL ANY PROGRAM PARTIES BE RESPONSIBLE OR LIABLE TO YOU, OR ANYONE ACTING ON YOUR BEHALF, FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE OR PROFITS, ARISING OUT OF THE ACTS OR OMISSIONS OF ANY PROGRAM PARTY IN CONNECTION WITH THE PROGRAM.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Program Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Program).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
IF ANY PROGRAM PARTY IMPROPERLY DENIES AN ACCRUAL OF POINTS OR A REWARD, LIABILITY WILL NOT EXCEED THE EQUIVALENT VALUE, AS DETERMINED BY VITAMX, OF THAT ACCRUAL OF POINTS OR REWARD.For purposes of clarity, the prior sentence does not expand or limit any express, written product warranty that is provided by Vitamix or a manufacturer of a physical product.
15. Our Rights. Vitamix reserves the right to modify, suspend, cancel or discontinue the Program, in whole or in part, for any reason, at its sole discretion, with or without notice to Members. Vitamix may, among other things, withdraw, limit, modify, suspend or cancel any item and/or modify or regulate the Points, items or benefits you may have accrued. Each Member agrees that Vitamix will not be liable to the Member or any third party for any modification or discontinuance of the Program. Vitamix reserves the right to interpret and apply the policies and procedures communicated in these Terms. All determinations by Vitamix, including determinations of eligibility, and proper authorization of Point and item redemption, shall be final and conclusive in each case. Vitamix reserves the right to terminate any Member’s participation in the Program, to deny award of any item and/or terminate service if, in Vitamix’s sole judgment, such Member has in any way violated these Terms.
16. Fraud. Fraud or abuse relating to the registration process, providing of personal information, or redemption of items is a violation of these Terms. Users are solely responsible for any fraudulent use that may occur due to the theft of or sharing of a Member’s password. Members agree to immediately notify Vitamix of any unauthorized use of their Online Account or Member Account or any other breach of security known to them. The Program is a service provided to an individual Member, not a company or other entity, and a company or other entity may not direct, encourage or allow individuals to participate for anything other than individual use. Vitamix reserves the right to terminate or suspend a Member’s participation in the Program and/or void a Member’s Points if any Member engages in fraudulent activity or otherwise uses this Program other than in accordance with these Terms and applicable law.
Any attempt by any member or any other individual or entity to damage any web site or undermine the legitimate operation of the program is a violation of these Terms. Vitamix reserves the right to investigate any suspicious activity and to seek damages from any such person to the fullest extent permitted by law.
17. Dispute Resolution. Any claim or dispute between the parties or any claim, dispute, or controversy involving Member and any other party arising from or relating to these Terms or the Program, including, without limitation, the arbitrability of any claim or dispute and the validity and enforceability of this mandatory arbitration provision or these Terms, shall be resolved by BINDING ARBITRATION. Any arbitration proceeding will take place in Cuyahoga County, Ohio. A single arbitrator shall conduct arbitration, under the Federal Rules of Evidence and the American Arbitration Association (“AAA”) Consumer Arbitration Rules in effect at the time the claim is filed. To obtain rules and form, contact the AAA at 800.778.7879, www.adr.org/consumer (website), or email@example.com(E-Mail). If AAA cannot or will not administer the arbitration, Member agrees to submit the claim to JAMS for proceedings conducted under JAMS’ Comprehensive Arbitration Rules. If both designated arbitration forums cannot or will not administer the arbitration, it remains Vitamix’s, CrowdTwist’s and Member’s intent to arbitrate and to have appointed an arbitrator pursuant to 9 USC § 5. Member agrees not to participate in a representative capacity or as a member of any class of claimants pertaining to any claims or disputes covered by this mandatory arbitration provision. No arbitrator shall be allowed to conduct arbitration on a class-wide basis, and the arbitrator shall not be allowed to consolidate arbitration demands filed by Vitamix’s other customers. If any other term is unenforceable in this mandatory arbitration provision, the remaining terms are severable and enforceable to the fullest extent permitted by law. This mandatory arbitration provision shall be governed by the Federal Arbitration Act. By participating in the Program, Member agrees to the terms of this mandatory arbitration provision. MEMBER UNDERSTANDS THAT MEMBER IS VOLUNTARILY WAIVING MEMBER’S RIGHT TO A JURY TRIAL, JUDGE TRIAL, OR RIGHT TO ASSERT ANY CLAIMS AGAINST VITAMIX AND CROWDTWIST AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION FOR CLAIMS OR DISPUTES arising from or relating to these Terms or the Program, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW. These Terms and any Additional Terms will be governed by and construed in accordance with, and dispute will be resolved in accordance with, the laws of the State of Ohio, without regard to its conflicts of law provisions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE AGAINST US, THEN YOU MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
18. Waiver of Injunctive or Other Equitable Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITES, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY US (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF VITAMIX.
19. Indemnity. In exchange for the right to participate in the Program, you agree to indemnify, defend (at our option) and hold us harmless from and against any and all damages, losses, liabilities, claims, costs, investigations, judgments, fines, penalties, settlements, interest, expenses or demands, including, but not limited to, personal injury, death, or damage to or loss of property, that directly or indirectly arise from or are related to: (i) your User Content; (ii) your use of the Program and your activities in connection with the Program; (iii) your breach or anticipatory breach of these Terms or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Program or your activities in connection with the website and the Program; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) our use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by us in the defense of any Claim and Losses. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Vitamix. We are not responsible for technical, hardware, network connections or incomplete or delayed computer transmissions, regardless of cause.
20. Updates to Terms. These Terms (and, as applicable, Additional Terms), in the form posted at the time of your participation in the Program, shall govern such participation. THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE PROGRAM MAY BE MODIFIED AND WE MAY CEASE OFFERING THE PROGRAM UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE PROGRAM YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS. YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE PROGRAM OR VIA EMAIL (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE PROGRAM AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE REVISED TERMS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Program (at least prior to each transaction or submission). The revised Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Program will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the rewards home page, and the e-mail you associated with your Online Account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or Additional Terms by discontinuing use of the Program and related services.
If you have a question regarding using the Program, you may contact Vitamix Customer Support by calling our toll-free number at (800) 848-2649. You acknowledge that the provision of customer support is at our sole discretion and that we have no obligation to provide you with customer support of any kind.
22. General Provisions.
- Severability. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
- Communications. 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.
- Investigations; Cooperation with Law Enforcement; Termination; Survival. We reserve the right, without any limitation, to: (i) investigate any suspected breaches of its site’s security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms and any Additional Terms; (iii) investigate any information obtained by us in connection with reviewing law enforcement databases or complying with criminal laws; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms and any Additional Terms; and (vi) discontinue the Program, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to us under these Terms or any Additional Terms. Upon suspension or termination of your access to the Program, or upon notice from us, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Program. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to us in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
- Assignment. We may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Vitamix.
- No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or us in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service, mobile service, and other services needed for your access to and use of the Program and you will be responsible for all charges related to them.
Terms Applicable To User-Generated Content on Social Media and Other Digital Channels
- General. Vita-Mix Management Corporation (together with its affiliates, “Vitamix”) may now or in the future request consent, permission, or agreement (“Permission”) from users on social media platforms or otherwise to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on its social media channels, www.vitamix.com, or other digital properties or channels, all or a portion of certain messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and ideas contained therein that have been posted or otherwise shared by such users through social media or otherwise (collectively, but excluding any Vitamix-owned or licensed intellectual property included therein, “User Content”). These terms and conditions (these “Terms”) shall apply to all such Permissions and User Content for which Permission is granted. Each time you grant Permission with respect to any User Content, you agree to these Terms in their entirety with respect to such User Content. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content.
- License to Vitamix of Your User Content. Except as otherwise described in any applicable Additional Terms, by granting Permission with respect to any User Content, you hereby grant to Vitamix, and you agree to grant to Vitamix, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of such User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine the same with other materials, and (b) use the User Content and any ideas, concepts, know-how, or techniques contained therein for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Vitamix to such User Content, you also hereby grant to Vitamix, and agree to grant to Vitamix, the unconditional, perpetual, irrevocable right to use and exploit your name, username, persona, and likeness in connection with any such User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any such User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, royalties, consideration, or remuneration for any of the rights granted pursuant to these Terms or any Additional Terms.
- Vitamix’s Exclusive Right to Manage our Venue. Vitamix is under no obligation to use any User Content for which you have granted Permission. Vitamix may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any User Content on any of its social media channels, www.vitamix.com, or other digital properties or channels, and Vitamix may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of or participation in User Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Vitamix is under no obligation to return or preserve any User Content.
- Representations and Warranties Related to Your User Content. Each time you grant Permission with respect to any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any such User Content, and that, as to that User Content: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to grant Vitamix the rights to it that you are granting by these Terms and any Additional Terms; (b) the User Content is accurate; (c) the User Content does not and, as to Vitamix’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; (d) the User Content will not violate these Terms or any Additional Terms, or cause injury or harm to any person; (e) our use of the User Content does not require any payment to any person or entity and does not violate the rights of nor require the license, authorization, approval, or consent by any other person or entity; and (f) you have not received any compensation of any kind for the User Content, unless properly disclosed pursuant to FTC guidelines.
- Enforcement. Vitamix has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to any User Content for which you have granted Permission, including by bringing and controlling actions in your name and on your behalf (at Vitamix’s cost and expense, to which you hereby consent and irrevocably appoint Vitamix as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). You acknowledge and agree that you do not acquire any ownership or other rights in the intellectual property or other information and materials of Vitamix.
- Rights of Others. Vitamix respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of User Content without your Permission, then please contact Vitamix at Legal@vitamix.com or (800) 848-2649.
- Updates to Terms. Vitamix reserves the right to modify these Terms at any time without advance notice. Therefore, you should review the posted Terms and any applicable Additional Terms each time you grant Permission for any User Content. The revised Terms will be effective as to new Permissions as of the time that we post them, or such later date as may be specified. However, the Terms (and any applicable Additional Terms) that applied at the time of pervious Permissions will continue to apply to such prior Permissions unless mutually agreed.
- Limitation of Liability; Indemnification. To the extent permitted by law, Vitamix shall not be liable in any way in connection with any User Content. You shall be liable for and shall indemnify Vitamix against any and all claims, actions, liabilities, losses, damages, expenses (including reasonable legal expenses) incurred by Vitamix which arise directly from a breach by you of your obligations, representations, or warranties under these Terms.
- Miscellaneous. These Terms are personal to you and may not be assigned or transferred by you for any reason whatsoever without Vitamix’s prior written consent; and any action or conduct in violation of the foregoing shall be void and without effect. No provision of these Terms shall be waived unless such waiver is in writing, and a waiver of any breach or failure to comply with these Terms shall not be construed as or constitute a continuing waiver of such provision or of any other breach or failure to comply. If any provision of these Terms shall be held unenforceable, invalid or void to any extent for any reason, such provision shall remain in full force and effect to the maximum extent allowable, if any, and the enforceability or validity of the remaining provisions of these Terms shall not be affected thereby. This Agreement shall be governed by and construed under the laws of the State of Ohio applicable to contracts executed and performed entirely within the State of Ohio, without regard to the choice of law provisions thereof. You submit to the exclusive jurisdiction of federal and state courts located in Cuyahoga County, Ohio for any actions, suits or proceedings arising out of or relating to this Agreement. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE AGAINST VITAMIX, THEN YOU MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.