Morinaga Nutritional Foods, Inc.
Last Updated and Effective Date: January 19, 2024
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1. BINDING EFFECT.
This is a binding agreement. By using the Internet sites of Morinaga Nutritional Foods, Inc., and its affiliated companies (collectively “Morinaga”) located at www.morinaga-usa.com, www.morinu.com, www.silkenpuree.com, www.morinagaprobiotics-usa.com, www.pnfinc.com, and any other Morinaga websites that link to these Terms and Conditions (collectively the “Site”) or any services provided in connection with the Site (the “Service”), you agree to abide by these Terms and Conditions, as they may be amended by Morinaga from time to time in its sole discretion. Morinaga will post a notice on the Site any time these Terms and Conditions have been changed or otherwise updated. It is your responsibility to review these Terms and Conditions periodically, and if at any time you find these Terms and Conditions unacceptable, you must immediately leave the Site and cease all use of the Service and the Site. YOU AGREE THAT BY USING THE SERVICE YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.
When you are required to open an account to use or access the Site or Service, you must complete the registration process by providing the complete and accurate information requested on the registration form. You will also be asked to provide a username and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Morinaga immediately of any unauthorized use of your account, username, or password. Morinaga shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Morinaga, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
3. USER CONTENT.
You grant Morinaga a license to use the materials you post to the Site or Service. By posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site or Service, you are granting Morinaga, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use User Content in connection with the operation of the Internet business of Morinaga, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that Morinaga may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
4. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS.
When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your User ID. The burden of proving that any Content does not violate any laws or third-party rights rests solely with you.
5. INAPPROPRIATE CONTENT.
You shall not make the following types of Content available. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content that (a) is libelous, defamatory, obscene, pornographic, abusive, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or (c) advertises or otherwise solicits funds or is a solicitation for goods or services. Morinaga reserves the right to terminate your receipt, transmission, or other distribution of any such material using the Service, and, if applicable, to delete any such material from its servers. Morinaga intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms and Conditions or of any applicable laws.
6. COPYRIGHT INFRINGEMENT.
Morinaga has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Morinaga has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of Morinaga or of a third party, or otherwise violated any intellectual property laws or regulations. Morinaga’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Morinaga to delete, edit, or disable the material in question, you must provide Morinaga with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Morinaga to locate the material; (d) information reasonably sufficient to permit Morinaga to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Morinaga’s designated agent at:
Morinaga Nutritional Foods, Inc.
3838 Del Amo Blvd. Suite #201
Torrance, CA 90503
Tel: +1 (310) 787-0200
Fax: +1 (310) 787-2727
7. ALLEGED VIOLATIONS.
Morinaga reserves the right to terminate your use of the Service and/or the Site. To ensure that Morinaga provides a high quality experience for you and for other users of the Site and the Service, you agree that Morinaga or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site or the Service. Morinaga does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Morinaga reserves the right to terminate your account or your access to the Site immediately, with or without notice to you, and without liability to you, if Morinaga believes that you have violated any of the Terms and Conditions, furnished Morinaga with false or misleading information, or interfered with use of the Site or the Service by others.
8. NO WARRANTIES.
MORINAGA HEREBY DISCLAIMS ALL WARRANTIES. MORINAGA IS MAKING THE SITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MORINAGA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MORINAGA DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITED LIABILITY.
MORINAGA’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MORINAGA BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY MORINAGA. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
10. AFFILIATED SITES.
Morinaga has no control over, and no liability for any third-party websites or materials. Morinaga works with a number of partners and affiliates whose Internet sites may be linked with the Site. Because neither Morinaga nor the Site has control over the content and performance of these partner and affiliate sites, Morinaga makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Morinaga assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that Morinaga makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third-party content, and that, unless expressly provided otherwise, these Terms and Conditions shall govern your use of any and all third party content.
11. PROHIBITED USES.
Morinaga imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Morinaga in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
You agree to indemnify Morinaga for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless Morinaga, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Site, your violation of these Terms and Conditions, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Morinaga will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
14. All contents of Site or Service are: Copyright © 2024 Morinaga Nutritional Foods, Inc., 3838 Del Amo Blvd., Suite #201, Torrance, CA 90503. All rights reserved. MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY DISPUTE, CLAIM, OR CONTROVERSY RELATING IN ANY WAY TO THE TERMS, YOUR USE OF THE SITE, OR PRODUCTS OR SERVICES SOLD, DISTRIBUTED, ISSUED, OR SERVICED BY OR THROUGH US—IRRESPECTIVE OF WHEN THAT DISPUTE, CLAIM, OR CONTROVERSY AROSE—WILL BE RESOLVED SOLELY BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH IN THE TERMS, RATHER THAN IN COURT. YOU AND WE THEREBY EACH AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, AND AGREE THAT YOU AND WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Exceptions. The arbitration agreement and class action waiver set forth in this Section 14 shall be subject to these limited exceptions:
You may assert claims in small claims court if your claims apply.
In the event that the arbitration agreement in the Terms is for any reason held to be unenforceable, any litigation against us (except for small claims court actions) may be commenced only in a federal or state court located within Los Angeles County, California, and you and we each consent to the jurisdiction of those courts for such purposes.
You and we each retain the right to participate in class-wide settlement of claims.
Informal Dispute Resolution. You and we each recognize and agree that good faith, informal efforts to resolve disputes often result in prompt, low-cost, and mutually beneficial outcomes. Therefore, you and we each agree that, before either of us may commence an arbitration or assert a claim in small claims court, you and we will engage in the following informal dispute resolution process:
The party seeking to initiate a claim in arbitration or small claims court (“claimant”) must give written notice to the other party (“respondent”). To notify us that you intend to initiate informal dispute resolution, you must send an email to Morinaga Nutritional Foods Inc. at MorinagaProbiotics@morinu.com, providing: your full name; the email address and mailing address associated with your Live Nation or Ticketmaster account; your counsel’s name and contact information, if you are represented by counsel; and a brief description of your claim(s) and the relief sought. To notify you that we intend to initiate informal dispute resolution, we will email you at the email address associated with your account or identification and provide a brief description of our claim(s) and the relief sought, and our counsel’s name and contact information.
You and we will then personally meet and confer, via teleconference or videoconference, in a good faith effort to informally resolve any claim covered by this mutual arbitration agreement. If either you or us is represented by counsel, that counsel may participate in the informal dispute resolution conference.
All offers, promises, conduct, and statements made in the course of the informal dispute resolution process by any party, its agents, employees, and attorneys are confidential and not admissible for any purpose in any subsequent proceeding, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the informal dispute resolution process.
The informal dispute resolution conference shall occur within sixty (60) days of receipt of the written notice described above, unless an extension is mutually agreed upon by you and us. If, after participating in that conference, you and we have been unable to resolve the dispute, the claimant may commence an arbitration or assert a claim in small claims court in accordance with this arbitration agreement.
Any statute of limitations will be tolled while you and we engage in the informal dispute resolution process described in this section.
Governing Law; Interpretation and Enforcement. The arbitration agreement in the Terms is governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“FAA”), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver. State arbitration laws do not govern in any respect. Further, you and we each agree that the Terms evidence a transaction involving interstate commerce, and will be governed by and construed in accordance with federal law to the fullest extent possible.
Arbitration Generally; Relief Available. There is no judge or jury in arbitration, and court review of an arbitration award is limited pursuant to the FAA. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the Terms as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief if authorized by law and warranted by the individual claim(s).
Arbitration Proceedings and Rules. The following rules and procedures shall apply:
Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to the AAA Consumer Arbitration Rules and the Consumer Due Process Protocol (collectively, “AAA Rules”) in effect at the time any demand for arbitration is filed with AAA, as modified herein. If the AAA is unavailable or unwilling to apply this section as written, the parties shall mutually agree on an alternative administrator that will administer the proceeding under this section as written. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an arbitration administrator that will do so. Any arbitration will be held before a single neutral arbitrator.
To increase the efficiency of administration and resolution of arbitrations: in the event of a claim seeking equitable relief (including injunctive relief), the arbitrator shall bifurcate the proceeding and rule on liability first, before conducting any proceedings (including discovery) related to the appropriate relief.
Unless applicable law provides otherwise, the arbitration proceeding and all records pertaining to it—including but not limited to any documents prepared or produced in connection with the arbitration proceeding, as well as the hearing and the arbitration award—will be confidential and will not be disclosed to any third party, except as necessary to obtain court confirmation of the arbitration award.
Commencing an Arbitration. To begin an arbitration proceeding, you must send the demand for arbitration or arbitration notice form made available from the arbitration administrator and supplement that form with a detailed description of your claim, including with the information required for your Notice and the accompanying signed certification of compliance with the informal process referenced above (collectively referred to as “demand for arbitration”), to AAA. You must personally sign your demand for arbitration. You agree also to send Morinaga a copy of your demand for arbitration at MorinagaProbiotics@morinu.com. If the Company initiates arbitration, we will send a copy of our demand for arbitration to your email address on file with us.
You may choose to have the arbitration conducted by telephone, virtually, based on written submissions, or in person in the county where you live or at another location reasonably convenient for you, or at a mutually agreed-upon location. The Company reserves the right to request an in-person or videoconference hearing at any point within 14 days after its deadline to file any answer. After that time, the Company retains the right to request an in-person or virtual hearing from the arbitrator, which the arbitrator may elect to require along with your participation (with your counsel if you are represented). Should a hearing take place in person, it shall take place consistent with the geographic parameters set forth above.
Arbitration Fees and Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Upon a showing of financial hardship, the Company will consider your request to promptly reimburse your portion of the arbitration fees provided for in the AAA Rules.
In the event that the arbitration is conducted by a different arbitration provider in accordance with the Terms, payment of any filing, administration, or arbitrator fees shall be governed by that provider’s rules.
You and we each agree that AAA, and any other arbitration provider selected pursuant to the Terms has discretion to modify the amount or timing of any fees due under any applicable rules or fee schedules, and further agree not to oppose any modifications to the timing or amount of any fees due—provided that such modifications do not increase the fees to either you or us.
Attorneys’ Fees. You are responsible for your own attorneys’ fees; we will not pay any attorneys’ fees unless ordered to do so by the arbitrator. For the avoidance of doubt, in cases where a statute gives you the right to recover attorneys’ fees if you prevail, the arbitrator may award attorneys’ fees pursuant to that statute.
Delegation; Interpretation. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable; however, in the event of a dispute about which particular version of this Agreement you agreed to, a court will decide that specific question. This arbitration agreement is intended to be broadly interpreted and will survive termination of the Terms.
Limited Right to Appeal. A court review of the arbitrator’s decision is limited pursuant to the FAA.
15. GOVERNING LAW AND VENUE.
These Terms and Conditions shall be construed in accordance with and governed by the Federal Arbitration Act, the laws of the United States, and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Los Angeles County, California, USA in all disputes arising out of or related to the use of the Site or Service.
16. SEVERABILITY; WAIVER.
If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms and Conditions to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms and Conditions shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
17. NO LICENSE.
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Morinaga or by any third party.
18. CALIFORNIA USE ONLY.
The Site is controlled and operated by Morinaga from its offices in the State of California. Morinaga makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Morinaga’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
Morinaga may, in its sole discretion and without prior notice, (a) revise these Terms and Conditions; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. Morinaga shall post any revision to these Terms and Conditions to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms and Conditions and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.
20. NO ASSIGNMENT.
Morinaga may assign these Terms and Conditions to a successor in interest (in whole or in part) but you may not assign the Terms and Conditions without the prior express written consent of Morinaga.
21. NO RELATIONSHIP.
Nothing contained in these Terms and Conditions creates a partnership, joint venture, agency or other such relationship by and between Morinaga and you.
22. TEMPORARY DELAY IN PERFORMANCE.
If Morinaga is or you are prevented from performing or unable to perform any obligation under these Terms and Conditions due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such cause.
Headings and captions are for convenience only.
BY USING THE SERVICE OR ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM. YOU AGREE THAT YOUR USE OF A KEYPAD, MOUSE OR OTHER DEVICE TO SELECT A BUTTON OR ICON OR SIMILAR ACT OR TO OTHERWISE PROVIDE MORINAGA ANY ACKNOWLEDGMENT OR CONSENT CONSTITUTES YOUR ELECTRONIC SIGNATURE, WHICH IS EQUIVALENT TO YOUR SIGNATURE IN WRITING. YOU ALSO AGREE THAT NO THIRD-PARTY VERIFICATION IS NECESSARY TO VALIDATE YOUR ELECTRONIC SIGNATURE. YOU FURTHER AGREE THAT EACH USE OF YOUR ELECTRONIC SIGNATURE IN CONNECTION WITH THE SERVICE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS AS THEY EXIST ON THE DATE OF YOUR ELECTRONIC SIGNATURE.