Terms of service
Terms and Conditions OF Sale
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods, including without limitation dietary supplements, probiotic and prebiotic formulations, and related products (collectively, “Goods”), by NSTINCT INC., a Wisconsin corporation with a principal place of business located at 1235 Dakota Dr., Suite C, Grafton, Wisconsin 53024-9477 (“Seller”) to any person or entity that purchases Goods directly from Seller through Seller’s website at https://www.nstinct.com/ (the “Website”) or another Seller-authorized direct-to-consumer sales channel (each, a “Buyer”). Each purchase of Goods submitted by Buyer through the Website or such sales channel is an “Order.” These Terms apply to purchases for personal, household, or other end-use purposes and not for resale, distribution, or other commercial sale unless Seller expressly agrees otherwise in writing. Seller and Buyer may be referred to herein individually as a “Party” or collectively as the “Parties.”
(b) These Terms, together with the applicable Order confirmation or receipt and any policies posted in connection with Seller’s checkout that expressly apply to the purchase, shipment, return, or refund of Goods (collectively, this “Agreement”), comprise the entire agreement between the Parties with respect to the purchase of Goods and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding such purchase. Buyer’s submission of an Order, completion of checkout, or acceptance of Goods constitutes acceptance of these Terms and does not modify or amend this Agreement. Any other terms and conditions proposed by Buyer shall be considered null and void and not enforceable unless expressly agreed to in a writing signed by Seller.
(c) These Terms apply to all direct-to-consumer purchases of Goods through the Website. Buyer’s access to and use of the Website are also governed by Seller’s Website Terms of Use, Privacy Policy, and Legal Disclaimer and Notice (collectively, “Site Policies”). In the event of any conflict between these Terms and the Site Policies with respect to the purchase, sale, payment, delivery, return, warranty, or use of Goods, these Terms shall control. With respect to website access, account use, privacy and data practices, or website content, the applicable Site Policy shall control.
2. ACCEPTANCE. All Orders are subject to acceptance or rejection by Seller in its sole discretion. Buyer’s placement of an Order constitutes an offer to purchase the Goods identified in the Order. Seller’s acceptance of an Order occurs only when Seller confirms the Order electronically via email, through the Website’s checkout or order-confirmation system, or by shipment of the Goods, whichever occurs first. Seller may reject, cancel, or limit any Order before shipment, including due to product unavailability, pricing or product-description errors, suspected fraud, abuse, unauthorized resale or distribution, or Buyer’s violation of these Terms or any Site Policy. If Seller cancels an Order after payment has been processed, Seller will refund the amount charged for the cancelled portion of the Order. Any modification or cancellation requested by Buyer after an Order is submitted is subject to Seller’s approval and any applicable posted checkout, shipping, refund, or return policies.
3. Price; Taxes. All prices for Goods are stated and payable in U.S. dollars. The price for Goods shall be the price displayed on the Website or in the applicable checkout flow at the time Buyer submits the Order, subject to Seller’s right to correct typographical, technical, or other pricing or product-description errors. Prices and product availability are subject to change without notice. Unless expressly stated at checkout, prices do not include any foreign, federal, state or local sales, use, VAT or value-added, excise, privilege, use or other taxes or any tariffs, duties or other charges imposed by any foreign, federal, state, or local governmental authorities arising from the sale, purchase, transportation, delivery, storage, use or consumption of the Goods (collectively, “Taxes”), or any shipping, handling, or similar charges. Buyer shall pay all Taxes and shipping, handling, and other charges shown at checkout or otherwise imposed by applicable law in connection with Buyer’s Order, except for taxes based on Seller’s net income. Seller may collect and remit Taxes as required by applicable law. Seller shall be under no obligation to contest the validity of any Taxes or to prosecute any claims for refunds or returns on behalf of Buyer.
4. Payment. Buyer shall pay all amounts due for an Order at the time of purchase. Seller may provide Order confirmations, receipts, invoices, or other transaction records by email, through the Website, or by other electronic means. Payment shall be processed through Seller’s designated third-party payment processor(s), including Shopify Payments, Stripe, or PayPal. Seller does not directly process, store, or retain full payment card information. If Buyer’s payment is not authorized, is declined, is reversed, or is otherwise not received by Seller or its payment processor, Seller may cancel or suspend the applicable Order, refuse shipment, seek collection of amounts due, and exercise any other rights or remedies available under these Terms or applicable law.
5. DELIVERY. Seller will arrange shipment of Goods to the shipping address Buyer provides in the applicable Order. Shipping methods, estimated delivery times, and shipping charges shall be as set forth on the Website or during checkout. Stated delivery dates are estimates only, and Seller shall not be liable for delays, losses, or damages arising from carrier delays, events outside Seller’s reasonable control, or inaccurate or incomplete shipping information provided by Buyer. Unless otherwise required by applicable law, title to and risk of loss for the Goods shall pass to Buyer when Seller delivers the Goods to the carrier for shipment. Buyer is responsible for providing accurate shipping information and for ensuring that Goods may be lawfully received at the delivery address provided in the Order.
6. INSPECTION OF GOODS. Buyer shall inspect Goods received from Seller within fifteen (15) days after Buyer’s receipt of such Goods (the “Inspection Period”) and either accept or, only if such Goods are Nonconforming Goods, reject such Goods. “Nonconforming Goods” means only the following: (a) the Goods shipped are different than identified in Buyer’s Order; (b) the Goods packaging incorrectly identifies its contents; or (c) the Goods are damaged or subject to defects that are covered by the Warranty stated in Section 7 below. Buyer will be deemed to have accepted Goods unless it provides Seller with written notice of any Nonconforming Goods prior to expiration of the applicable Inspection Period, stating all defects and nonconformities and furnishing such written evidence or other documentation as may be reasonably requested by Seller, including Order number, photographs, lot information, the subject Goods, or a sample thereof. If Seller determines that such Goods are Nonconforming Goods, Seller shall, at its option, either (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund or credit to Buyer the amount paid by Buyer for such Nonconforming Goods. Buyer may not return any Nonconforming Goods to Seller without first obtaining written authorization from Seller. Buyer shall ship, at Seller’s option and expense, all Nonconforming Goods to Seller’s designated facility or properly dispose of such Nonconforming Goods in accordance with Seller’s instructions (and provide written certification of such disposal if requested by Seller). If Seller exercises its option to replace Nonconforming Goods, Seller shall ship to Buyer, at Seller’s expense, the replacement Goods. Except as provided under this Section 6, in Section 7 below, or in any applicable posted refund or return policy, Buyer has no right to return Goods shipped to Buyer pursuant to this Agreement. SUBJECT TO BUYER’S RIGHTS UNDER SECTION 7 BELOW, THE REMEDIES SET FORTH IN THIS SECTION 6 ARE BUYER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS.
(a) For the avoidance of doubt, claims under the Damaged or Defective Products section are separate from and not subject to the limitations or timelines of this Inspection of Goods section.
7. Limited Goods WarrantY.
(a) Subject to the other provisions of this Section 7, Seller warrants to Buyer that, as of the date of shipment, the Goods will conform in material respects with Seller’s applicable product descriptions, specifications, and labeling for such Goods (collectively, the “Warranty”).
(b) Warranty Exclusions. The Warranty does not apply or extend to claims, damages or losses resulting from or relating to: (i) improper handling, storage, or use of the Goods after delivery; (ii) carrier handling after shipment, except to the extent Seller determines that Goods were damaged in transit through no fault of Buyer; (iii) alteration, tampering, contamination, or misuse of the Goods; (iv) neglect, accident, abuse or other causes or events beyond Seller’s control; (v) failure to adhere to Seller’s product labeling, handling, storage, or use instructions; (vi) use of the Goods other than for their intended purposes; (vii) modifications of the Goods not authorized by Seller in writing; or (viii) claims relating to individual health outcomes, product efficacy for any particular health condition, or any use inconsistent with the product labeling, including the mandatory FDA disclaimer.
(c) Warranty Claim Procedure. Seller shall not be liable for a breach of the Warranty unless: (i) Buyer gives written notice of the defect by no later than thirty (30) days after receipt of the applicable Goods; (ii) Buyer provides Seller with information reasonably requested by Seller to evaluate the claim, which may include the Order number, photographs, lot information, the subject Goods, or a sample thereof; (iii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer, if requested to do so by Seller, returns such Goods to Seller’s designated location at Seller’s cost for the examination to take place; and (iv) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) Exclusive Remedies. SELLER’S SOLE LIABILITY AND BUYER’S EXCLUSIVE REMEDIES FOR ANY DEFECTIVE OR NONCONFORMING GOODS COVERED BY THE WARRANTY STATED IN SECTION 7(a) ABOVE SHALL BE LIMITED, AT SELLER’S OPTION, TO REPLACEMENT OF THE GOODS OR REFUND OR CREDIT OF THE PURCHASE PRICE PAID BY BUYER FOR SUCH DEFECTIVE OR NONCONFORMING GOODS, PROVIDED THAT SELLER HAS RECEIVED WRITTEN NOTICE AND SATISFACTORY EVIDENCE OF THE DEFECT OR NONCONFORMITY WITHIN THIRTY (30) DAYS AFTER BUYER’S RECEIPT OF SUCH GOODS. FURTHER, BUYER SHALL COMPLY WITH ALL REASONABLE INSTRUCTIONS OF SELLER REGARDING THE RETURN OR DISPOSAL OF DEFECTIVE OR NONCONFORMING GOODS.
(e) No Other Express or Implied Warranties. THE WARRANTIES STATED IN SECTION 7(a) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OF SELLER WITH RESPECT TO THE GOODS, AND SELLER MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE CONDITION, VALUE, USEFULNESS, DESIGN, QUALITY, SAFETY, EFFICACY, SUITABILITY, OR OPERATION OF THE GOODS; AND SELLER HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTIES REGARDING THE SAFETY, EFFICACY, OR SUITABILITY OF THE GOODS FOR ANY PARTICULAR HEALTH CONDITION OR OUTCOME. THE GOODS ARE DIETARY SUPPLEMENTS AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
(f) FDA and Regulatory Disclaimer. THE GOODS ARE DIETARY SUPPLEMENTS REGULATED UNDER THE DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT OF 1994 (“DSHEA”). THESE STATEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION. THE GOODS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATIONS BY SELLER REGARDING THE THERAPEUTIC OR CURATIVE PROPERTIES OF THE GOODS.
(g) Buyer’s Use Obligations. Buyer shall comply with all applicable federal, state, and local laws, rules, and regulations governing Buyer’s purchase, possession, use, and disposal of the Goods. Buyer shall not resell, redistribute, repackage, relabel, market, advertise, or make any claims regarding the Goods, including any health, therapeutic, curative, or disease claims, except as expressly authorized by Seller in writing and in compliance with applicable law, including without limitation the Federal Food, Drug, and Cosmetic Act, DSHEA, FTC regulations, and applicable state consumer protection laws. Buyer shall not remove or obscure any mandatory FDA disclaimer language included with or on the Goods.
8. Subscription Program.
(a) Seller offers the following subscription plans for Goods through the Website, powered by Recharge, Inc. (“Recharge”):
(b) Subscription Plans. Seller offers a thirty (30)-day supply plan at $59.99 per month and a ninety (90)-day supply plan at $134.97 charged every three (3) months.
(c) Recurring Billing Authorization. By enrolling in a subscription, Buyer authorizes Seller to charge Buyer’s designated payment method on a recurring basis at the applicable subscription price plus shipping. Buyer’s payment method will be charged when Recharge creates each renewal order.
(d) Auto-Renewal. Each subscription automatically renews at the end of the applicable billing cycle (thirty (30) days or ninety (90) days) via Recharge. A renewal order is auto-created at the end of each cycle. Buyer acknowledges and agrees that subscription enrollment constitutes consent to recurring charges as described herein. Buyer’s subscription will automatically renew until canceled.
(e) Renewal Reminder. Seller will send Buyer an email reminder approximately five (5) days before each renewal order is created.
(f) Cancellation. Buyer may cancel at any time before Recharge creates the renewal order (approximately forty-eight (48) hours before shipment) via the online account portal at nstinct.com, by emailing support@nstinct.com, or by calling NStinct customer support. Cancellation is effective immediately; no further renewal orders will be created after cancellation.
(g) Failed Payments. If payment fails, Seller may retry the charge, suspend the subscription, or cancel it after notice to Buyer.
(h) Pricing Changes. Seller may change subscription pricing with reasonable advance notice. Continued enrollment after such notice constitutes acceptance of the new pricing.
(i) Promotional Abuse. Seller reserves the right to cancel subscriptions or deny satisfaction guarantee claims for suspected abuse, including repeated subscribe/cancel cycles for introductory pricing, bulk purchasing, or unauthorized resale.
(j) Treatment of Renewal Orders. Each renewal shipment is governed by these Terms as a separate Order. The Satisfaction Guarantee set forth below does not apply to renewal shipments.
9. Satisfaction Guarantee.
(a) Thirty-Day Guarantee. Seller offers a thirty (30)-day satisfaction guarantee measured from the date of delivery (not the order date).
(b) Eligible Orders. The Satisfaction Guarantee applies to: (i) one-time purchases; (ii) the first shipment of a monthly subscription; and (iii) the first shipment of a ninety (90)-day subscription. The Satisfaction Guarantee does NOT apply to renewal shipments.
(c) One-Time Use. The Satisfaction Guarantee is limited to one (1) use per customer, per product. Once a customer has used the guarantee for a particular product, that product is no longer eligible for that customer.
(d) No Return Required. In most cases, no return of the product is required. Seller reserves the right to request the product back for certain orders (e.g., the ninety (90)-day package). If a return is requested, return shipping is the customer’s responsibility.
(e) Full Refund. Eligible claims receive a full refund of the product purchase price and original shipping charges. Taxes are not refunded. No proration applies.
(f) Refund Processing. Refunds will be issued to the original payment method within five (5) to ten (10) business days after approval.
(g) Exclusions. The Satisfaction Guarantee does not apply in cases of suspected fraud, bulk purchasing, unauthorized resale, or abuse. Seller reserves the right to deny claims at its discretion if abuse is suspected.
(h) Claim Procedure. To submit a claim, contact support@nstinct.com within thirty (30) days of delivery.
(i) Relationship to Other Remedies. The Satisfaction Guarantee is separate from and in addition to Buyer’s rights under the Damaged or Defective Products section below. Using the Satisfaction Guarantee does not affect Buyer’s right to file a damaged/defective claim on a different shipment.
10. Damaged or Defective Products.
(a) Applicability. This section applies independently of the Satisfaction Guarantee and is available for every shipment, including renewal shipments, regardless of whether the customer has used their one-time Satisfaction Guarantee.
(b) Remedy. If a product arrives damaged, defective, or materially different from what was ordered, Buyer is entitled to a replacement or full refund at Seller’s option.
(c) Reporting Requirement. Buyer must report the issue within fifteen (15) to thirty (30) days of receipt by emailing support@nstinct.com with a photograph of the damaged or defective product and the order number.
(d) Return Shipping. If Seller requests return of damaged or defective Goods, Seller bears the cost of return shipping.
(e) Relationship to Warranty. This section does not limit or replace the Limited Goods Warranty in Section 7; rather, it provides an additional, streamlined process for delivery damage and obvious defects.
11. SMS/Text Messaging Terms.
(a) Consent to Receive Messages. By opting in, Buyer agrees to receive recurring SMS/text messages from or on behalf of NSTINCT, Inc. at the number provided. Messages may be sent using an automatic dialing system or other automated technology and are powered by Recharge, Inc.
(b) Message Types. Messages may include transactional communications (e.g., order updates, shipping notifications, subscription renewal reminders, account alerts) and promotional content (e.g., special offers, product launches, cart reminders).
(c) Consent Not Required for Purchase. Consent to receive SMS/text messages is not required to make a purchase. Participation is voluntary.
(d) Message Frequency and Rates. Message frequency may vary. Standard message and data rates may apply.
(e) Opt-Out. Reply “STOP” to any message to unsubscribe from SMS/text messages. For help, contact support@nstinct.com.
(f) Carrier Liability. NSTINCT, Inc. is not responsible for delayed or undelivered messages. Carriers are not liable for message delays or failures.
(g) Number Changes. If Buyer’s mobile number changes, Buyer must re-enroll to continue receiving messages.
(h) Do Not Call Registry. Buyer’s consent to receive messages overrides any Do Not Call registration, as permitted by law.
(i) Privacy. For details on data collection, use, and protection related to SMS messaging, see Seller’s Privacy Policy at https://www.nstinct.com/privacy-policy.
(j) Changes to SMS Service. Seller may change or discontinue the SMS service at any time without notice. Continued participation after changes constitutes acceptance.
12. Limitations of Liability.
(a) No Consequential, Incidental Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER OR any of ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE, DOWN TIME, BUSINESS INTERRUPTION, DIMINUTION IN VALUE, OR OTHER ECONOMIC LOSSES), WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SELLER HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES.
(b) Aggregate Damages Cap. EXCEPT AS STATED IN THIS SECTION 8(b) BELOW, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, SELLER’S AGGREGATE LIABILITY FOR ALL CLAIMS, DAMAGES OR LOSSES RELATING IN ANY MANNER TO THIS AGREEMENT OR THE GOODS, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL NOT EXCEED THE GREATER OF (I) ONE HUNDRED U.S. DOLLARS (US$100.00), OR (II) THE AMOUNT PAID BY BUYER TO SELLER FOR THE GOODS GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. SELLER HAS RELIED ON THE FOREGOING LIMITATION AND BUYER EXPRESSLY ACKNOWLEDGES THAT THIS PROVISION IS ESSENTIAL IN THE ESTABLISHMENT OF THE PRICING OF THE GOODS. THE LIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SET FORTH IN THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; PROVIDED HOWEVER, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 8(b) ABOVE SHALL NOT APPLY TO LIABILITY RESULTING FROM SELLER’S GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT, OR DEATH OR BODILY INJURY CAUSED BY THE GOODS. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. Recall. If Seller or any governmental authority having jurisdiction over the Goods finds that a Good contains a safety hazard, an unsafe condition, a serious defect or deficiency making it necessary that the affected Goods be recalled or withdrawn (collectively, a “Recall”), Seller shall, in its sole discretion, determine the corrective actions to be taken, subject to the requirements of applicable law. If Buyer becomes aware of any information that may result in a Recall, a safety concern, or an adverse event involving the Goods, or if Buyer receives any inquiry from governmental authorities or the media relating to the Goods, Buyer shall notify Seller promptly in writing. Buyer shall reasonably cooperate with Seller in executing any Recall, including by following Seller’s reasonable instructions regarding the return, replacement, disposal, or non-use of affected Goods and by providing information reasonably requested by Seller. Buyer shall not make any public statements regarding any potential or actual Recall except as required by applicable law or authorized by Seller in writing.
10. Indemnification. Buyer shall defend, indemnify and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, owners, members, employees, representatives, and agents harmless from and against any and all demands, claims, suits, proceedings, penalties, injuries, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any: (a) bodily injury, death or property damage caused by Buyer’s misuse, improper storage, alteration, unauthorized resale or distribution, or other acts or omissions with respect to the Goods; (b) breach or default of any representation, covenant, term or condition of this Agreement by Buyer or anyone acting on Buyer’s behalf; (c) negligent or more culpable acts or omissions (including recklessness or willful misconduct) by Buyer or anyone acting on Buyer’s behalf; (d) failure by Buyer or anyone acting on Buyer’s behalf to comply with applicable laws, statutes, rules, regulations or Orders; (e) Buyer’s unauthorized marketing, labeling, advertising, resale, distribution, or claims regarding the Goods, including any unapproved health, therapeutic, curative, or disease claims; or (f) Buyer’s use of the Website, Site Policies, Website content, services, or Goods other than as expressly authorized by Seller.
11. Intellectual Property Rights.
(a) Definition of Intellectual Property Rights. As used in this Agreement, “Intellectual Property Rights” means all industrial and intellectual property rights comprising or relating to: (i) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); (ii) trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, product or strain numbers or similar identifications, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”); (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, URLs, and social media accounts and content; (iv) works of authorship, data, formulas, formulations, processes, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works; (v) trade secrets and inventions; and (vi) all other intellectual or industrial property, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the applicable laws of any jurisdiction in any part of the world.
(b) Ownership. Buyer acknowledges and agrees that: (i) Seller (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts; (ii) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (iii) except as expressly stated in this Agreement, Buyer shall not acquire any ownership interests or license rights in any of Seller’s Intellectual Property Rights; (iv) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (v) if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Party; and (vi) Buyer shall use Seller’s Intellectual Property Rights only in accordance with this Agreement and any instructions of Seller.
(c) Prohibited Acts. Buyer shall not: (i) take any action that may interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (ii) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights; (iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Seller’s Trademarks or any other Trademark that is similar to Seller’s Trademarks or that incorporates Seller’s Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to Seller’s Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products of Seller, Goods purchased under this Agreement, or any Seller Trademark; (vii) misappropriate any of Seller’s Trademarks for use as a domain name, social media handle, account name, or other online identifier; (viii) alter, obscure or remove any of Seller’s Trademarks, trademark or copyright notices, or any other proprietary rights notices placed on the Goods, Website, packaging, labeling, or other materials that Seller may provide; or (ix) modify, alter, adapt, decompile, disassemble, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover or design around any part of Seller’s Intellectual Property Rights or Confidential Information (as defined in Section 12(a)(i) below).
(d) No Trademark License. Buyer is not granted any license or other right to use Seller’s Trademarks or other Intellectual Property Rights except for Buyer’s personal, non-commercial use of the Website and Goods as expressly permitted by these Terms and the Website Terms of Use. Without limiting Section 11(c), Buyer may not use, reproduce, display, register, or otherwise exploit any Seller Trademark, including “NSTINCT™,” “TRUST YOUR GUT™,” “MAKTrek®,” “MAKTabolite®,” or related marks, in connection with any resale, advertising, marketing, domain name, social media account, product, service, or other commercial purpose without Seller’s prior written consent. All goodwill associated with Seller’s Trademarks shall inure solely to Seller or its affiliates, as applicable.
(a) Definitions. As used in this Agreement, the following capitalized terms shall be as defined below:
(i) “Confidential Information” means non-public information and materials (whether oral, written, recorded magnetically or electronically or otherwise stored, and whether or not marked, designated or otherwise identified as “confidential”) that are possessed by or developed for Seller, relate to Seller’s existing or potential business, are not reasonably ascertainable by Seller’s competitors or by the general public through lawful means, and are disclosed by or on behalf of Seller to Buyer in connection with Buyer’s purchase or use of Goods, customer service communications, product support, or access to the Website. Confidential Information includes but is not limited to: trade secrets, as that term is defined under applicable law; non-public research, discoveries, ideas, and patent applications; non-public compositions, formulas, formulations, data, ingredients, materials, specifications, operations and strategies; technology, developments, inventions, improvements, and innovations; processes and methods; proprietary software, firmware, or hardware; marketing and business plans; customer, vendor, and supplier information; contracts; procurement and sales activities and procedures; promotions, costs, pricing, rebates, credit, and financial information. Confidential Information shall also include all documents, materials, notes, analysis, studies, and summaries prepared by Buyer containing or based on, in whole or in part, Seller’s Confidential Information. For the avoidance of doubt, Seller’s non-public composition sheets, proprietary probiotic strain formulations, blend compositions, and specifications for the MAKTrek® 3D Bypass Delivery System and the MAKTabolite® Support System are expressly Confidential Information and trade secrets of Seller.
(ii) “Representative” individually means, and “Representatives” collectively mean, any person or entity acting for or on behalf of Buyer or accessing Seller’s Confidential Information through Buyer, if any.
(b) Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that, as established by documentary evidence: is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 12 by Buyer or any of its Representatives; (ii) is or becomes available to Buyer on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of Buyer or its Representatives prior to being disclosed by or on behalf of Seller; or (iv) was or is independently developed by Buyer without reference to or use of, in whole or in part, any of Seller’s Confidential Information. For clarity, specific items of Confidential Information shall not be deemed to be within one or more of the above exceptions merely because they are embraced by more general information that is within one or more of such exceptions. Further, any combination of specific items of Confidential Information shall not be deemed to be within one or more of the above exceptions merely because such specific items by themselves fall within such exceptions.
(c) Protection of Confidential Information. Subject to Section 12(d) below, Buyer shall, for ten (10) years from receipt of such Confidential Information: (i) protect and safeguard the confidentiality of Seller’s Confidential Information with at least the same degree of care as Buyer would protect Buyer’s own confidential information, but in no event with less than a commercially reasonable degree of care; (ii) not use Seller’s Confidential Information, or permit it to be accessed or used, for any purpose other than to purchase or use Goods, communicate with Seller regarding an Order or the Goods, or exercise Buyer’s rights or perform Buyer’s obligations under this Agreement; and (iii) not disclose or divulge any of Seller’s Confidential Information to any person or entity, except to Representatives of Buyer who have a strict need to know such Confidential Information to assist Buyer with the foregoing permitted purposes, provided that, prior to disclosure, each Representative is informed of the confidential nature of Seller’s Confidential Information and is bound by obligations of confidentiality and non-use with respect to such Confidential Information that are no less restrictive than the terms and conditions of this Section 12. In any event, Buyer shall be fully liable for any breach of this Section 12 by its Representatives.
(d) Protection of Trade Secrets. Notwithstanding anything in this Agreement to the contrary, with respect to Confidential Information of Seller that constitutes a trade secret under applicable law, the rights and obligations of the Parties under this Section 12 shall survive until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Buyer or its Representatives.
(e) Disclosures Required by Legal Process or Authority. If Buyer is compelled by subpoena, court Order or other legal process or authority (collectively, “Legal Process”), to disclose any Confidential Information of Seller, then: (i) Buyer shall provide prompt written notice of the Legal Process so that Seller may seek a protective Order or other remedy limiting its disclosure; and (ii) Buyer shall provide reasonable assistance in opposing such disclosure or seeking a protective Order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Buyer remains subject to the Legal Process, Buyer or its Representatives to whom such Legal Process is directed shall disclose no more than that portion of the Confidential Information which, on the advice of Buyer’s legal counsel, such Legal Process specifically requires Buyer to disclose and shall use commercially reasonable efforts to obtain assurances that such Confidential Information will be afforded confidential treatment. Notwithstanding the foregoing, any disclosure of Confidential Information by Buyer pursuant to Legal Process shall not relieve Buyer from its obligations under this Section 12.
(f) Ownership & Return of Confidential Information. Seller shall remain the exclusive owner of, and retain all rights in its Confidential Information. No disclosure of Confidential Information by Seller shall be construed as an assignment, grant, option, license, or other transfer of any such rights or interests whatsoever to Buyer or any other third party. At any time and upon Seller’s request, Buyer shall promptly return to Seller (or if directed by Seller, promptly destroy and certify in writing that it has done so) all Confidential Information of Seller, along with all copies, abstracts, summaries, writings, documents or other materials containing or based upon, in whole or part, any Confidential Information of Seller. Further, Buyer shall permanently erase all of Seller’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Such archived copies must be destroyed upon the normal expiration of Buyer’s backup files, provided that Buyer shall continue to be bound by the terms and conditions of this Section 12 with respect to such archived Confidential Information. The return or destruction of such documents and materials shall in no way relieve Buyer of any obligation of confidentiality and non-use contained herein.
13. Termination. In addition to any remedies that may be provided under this Agreement, Seller may, to the fullest extent permitted by applicable law and with or without notice, reject or cancel any Order, suspend or terminate Buyer’s account or access to the Website, terminate Buyer’s rights under this Agreement, refuse future sales to Buyer, or take any other action Seller deems necessary or appropriate if Buyer: (i) fails to provide valid payment or any payment is declined, reversed, or not received; (ii) has not otherwise performed or complied with any of these Terms or any applicable Site Policy, in whole or in part; (iii) engages in fraud, abuse, unauthorized resale or distribution, unauthorized health or product claims, or other misuse of the Website or Goods; (iv) violates any applicable law in connection with the Website or Goods; or engages in subscription abuse, promotional abuse, or repeated subscribe/cancel gaming to obtain introductory or promotional pricing; or (vi) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Excused Performance. Seller shall not be in default of, or liable for any delay in the performance of, this Agreement by reason of any of the following: acts of God; flood, fire, tornado, explosion, or other natural or man-made disaster; epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental Orders, laws, emergency proclamations, or quarantine restrictions; actions, embargoes or blockades in effect on or after the effective date of this Agreement; action by any governmental authority or agency; unavailability or shortage of materials; unavailability or shortage of labor; strikes, labor stoppages or slowdowns or other industrial disturbances; shortage of adequate power or transportation facilities; interruptions or degradations in telecommunications, computer, network, or electronic communications systems, cyber-attacks, ransomware; and/or other events (whether or not similar in type or nature to the previously listed events) beyond the control of Seller (each a “Force Majeure Event”). In the event of a Force Majeure Event, (a) Seller’s performance under this Agreement will be postponed by such length of time as may be reasonably necessary to compensate for the delay caused by or resulting from the Force Majeure Event, (b) Seller may allocate its inventory of Goods to its buyers (including Buyer) in any manner it determines, in good faith, to be fair and equitable, and (c) at Seller’s option, terminate this Agreement and/or cancel any Order impacted by the Force Majeure Event, without liability.
15. No Waiver. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by Seller. No waiver by Seller of any default under this Agreement is a waiver of any other or subsequent default. The failure of Seller to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that Seller may have under this Agreement or at law, in equity or otherwise, and shall not be deemed a waiver of any subsequent default by Buyer in performance of the terms and conditions of this Agreement.
16. Modification. No modification of this Agreement or any of its provisions by Buyer is valid unless expressly agreed to in a writing signed by an authorized representative of Seller.
17. No Third-Party Beneficiaries. Except as set forth in this Section 17, the Parties do not confer any rights or remedies upon any person, business or entity other than the Parties to this Agreement and their respective successors and permitted assigns. The Parties hereby designate the indemnitees stated in Section 10 of this Agreement as third-party beneficiaries for the purpose of enforcing their respective rights under Section 10.
18. Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the Parties expressed in this Agreement.
19. RELATIONSHIP OF THE PARTIES. Seller shall operate as an independent contractor in supplying any Goods under this Agreement. Nothing in this Agreement shall be construed to create a joint venture or partnership between the Parties. The officers, employees and agents of one Party shall not be considered officers, employees or agents of the other Party for any purpose whatsoever. Buyer is not authorized to assume or create any obligation or responsibility, including but not limited to, contractual obligations or obligations based on warranties or guarantees, on behalf of or in the name of Seller.
20. HEADINGS. The section headings in this Agreement are for convenience of reference only and shall not be deemed to alter or otherwise affect the meaning or interpretation of any provision hereof.
21. Assignment. Buyer may not assign any of its rights, duties or obligations under this Agreement without Seller’s prior written consent.
22. Remedies. Each of the rights and remedies of Seller under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law, in equity or otherwise.
23. Attorneys’ Fees. In the event Seller is required to retain legal counsel or to initiate any arbitration or litigation to enforce or interpret the terms and conditions of this Agreement or to collect any sums due Seller under this Agreement, Buyer shall, upon demand, pay or reimburse Seller for all reasonable attorneys’ fees and costs and expenses of litigation incurred by Seller.
24. Survival. All of the agreements, representations, warranties, and indemnities made by Buyer in this Agreement shall survive the expiration or termination of this Agreement, subject only to the applicable statutes of limitation.
25. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing. Buyer shall send Notices to Seller at: Nstinct Inc., Attn: Legal Department, 1235 Dakota Dr., Suite C, Grafton, Wisconsin 53024-9477, United States of America, or to such other address or customer-service or legal notice channel as Seller may designate on the Website. Seller may provide Notices to Buyer by email to the email address associated with Buyer’s Order or account, through Buyer’s account or the Website, by posting on the Website where permitted by applicable law, or by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid) to the address associated with Buyer’s Order or account. Except as otherwise provided in this Agreement or required by applicable law, a Notice is effective (a) when sent, posted, or otherwise transmitted if delivered electronically, and (b) upon receipt if delivered by personal delivery, courier, or mail, provided that the Party giving the Notice has complied with the requirements of this Section 25.
26. Governing Law. This Agreement shall be construed and governed under the laws of the State of Wisconsin, without application of conflict of law principles or rules. The Parties hereby exclude the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, each as amended.
27. Resolutions of Disputes. In the event of any dispute or controversy between Seller and Buyer arising out of or in any way related to this Agreement or any Goods (each a “Dispute”), the Parties shall attempt in good faith to resolve through negotiation such Dispute. Either Party may initiate negotiations of any Dispute by providing written notice to the other Party, setting forth the nature of the Dispute. The recipient of such notice will respond in writing within ten (10) calendar days with a statement of its position on and recommended solution to the Dispute. If the Dispute is not resolved by this exchange of correspondence, then representatives of each Party with full settlement authority will meet at a mutually agreeable time and place within thirty (30) calendar days of the date of the initial notice in Order to exchange relevant information and perspectives, and to attempt to resolve the Dispute. If the Dispute is not resolved by these negotiations, such Dispute shall be subject to the provisions of Section 28 below.
28. Submission to Jurisdiction. Any legal suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort or otherwise, shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of Wisconsin, in each case located in Milwaukee County, Wisconsin. Each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court has been brought in an inconvenient form.
29. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
30. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR ANY GOODS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
31. Equitable Remedies. Buyer acknowledges that a breach or threatened breach by Buyer of any of its obligations under this Agreement would give rise to irreparable harm to Seller, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Buyer of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to equitable relief, including a temporary restraining Order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
