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Effective Date: October 4th, 2023
PLEASE NOTE THAT THESE TERMS REQUIRE THAT DISPUTES BE RESOLVED ONLY BY FINAL AND BINDING INDIVIDUAL ARBITRATION (AND NOT BY COURT LITIGATION). THIS MEANS THAT YOU WAIVE ANY RIGHT TO A JURY TRIAL, AND WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN CLASS ACTIONS AGAINST US. IN ARBITRATION, THERE IS NO JURY, LESS DISCOVERY, AND LIMITED APPELLATE REVIEW AS COMPARED TO COURT LITIGATION. Please review the provision Arbitration Agreement and Class Action Waiver in Section 6 of these Terms for complete details. PLEASE REVIEW CAREFULLY.
California Residents: The Boost Loyalty Rewards Program may be considered a “financial incentive” under California law. Please review our California Notice of Financial Incentive.
1. GENERAL TERMS
Boost, a Nestlé Health Science U.S. brand, or its affiliates and subsidiaries (“Sponsor,” “Boost,” “we,” “us,” or “our”) offers Eligible Members, as defined below (collectively, “Members,” and each individually, a “Member” or “you”) the opportunity to participate in the Boost Loyalty Rewards Program (the “Program” or the “Loyalty Rewards Program”). This Program is administered on behalf of Sponsor by YOTPO Ltd. (“Administrator”).
Through the Program, you may have the opportunity to earn rewards (“Rewards” or “Points”) for purchasing products, referring friends, having product reviews accepted for site publication, and other activities specified by Boost in these Boost Loyalty Rewards Program Terms and Conditions (“Terms” or “Program Rules”), on the Boost website at https://www.boost.com/ (the “Website” or the “Site”), and/or on Boost social media sites (at https://www.facebook.com/BOOST.Nutritional.Products/, https://www.instagram.com/boostnutrition) (each individually, a “Social Media Site” and together “Social Media” or “Social Media Sites”). Note that Rewards are not available for items purchased through third-party sites, such as Amazon, Walmart Marketplace, or eBay. These Terms govern the Loyalty Rewards Program and Sponsor’s relationships with Members of the Program. Any reference to “you” or “your” in these Program Rules means the person enrolling in the Program. Boost reserves the right to modify or cancel any aspect of the Program or the Program itself at any time and for any reason, including the Rewards offered through the Program.
Sponsor and Administrator have the sole discretion to interpret and apply the Program Rules, and all questions or disputes regarding these Program Rules will be resolved by Sponsor and Administrator in their discretion. Neither the Program nor any Reward or benefit offered by the Program creates, constitutes or gives rise to any legal or contractual rights by Members against Sponsor, Administrator and/or their subsidiaries or affiliates.
The Program is offered only to (a) legal residents in the 50 United States, the District of Columbia, U.S. territories, and APO/DPO/FPO locations (b) who are at least 18 years of age or older (each an “Eligible Member” or “Member” or “you”). Employees, officers and directors of Sponsor, Administrator, and each of their respective subsidiaries and affiliated companies, and the immediate family members or persons living in their same household are not eligible to participate in the Program. Sponsor reserves the right to limit the number of Members in the Program. All federal, state, provincial, and local laws and regulations apply.
Only individuals are eligible for Loyalty Rewards Program Membership (“Membership”), and each individual may maintain only one (1) Boost account (“Membership Account” or “Account”). If more than one Membership Account is opened by an individual, he/she will only receive Points for the Account that was opened first. The duplicate (second) Membership Account will be canceled. Corporations, groups and/or associated entities cannot enroll as Loyalty Rewards Program Members.
To participate in the Loyalty Rewards Program, you must create a Membership Account. Eligible Members may enroll by clicking on the links and following the instructions at the Website to provide the requested information (e.g., registering on the Site with an email address and password (your “User ID”), and accepting enrollment in the Program) and agreeing to these Terms. Your email and password will be your credentials for accessing the Program. Members must provide the required information to be enrolled and to be eligible to earn Rewards.
Each Member is solely responsible for all activities that occur under his/her Account and for maintaining the security of his/her login credentials. You are responsible for protecting your email login. If your email login is compromised (e.g., you become aware that an unauthorized person has access to your email account), you agree to immediately inform Boost by calling 1-800-247-7893. Members must not disclose login credentials to any third party for any reason. Boost will not be liable for any loss or damage of any kind arising from a Member’s failure to comply with the requirements of this paragraph or any Member responsibilities under these Program Rules.
Boost reserves the right to reject, revoke, cancel or suspend any Membership, Reward, sweepstakes, and/or any and all unredeemed Points, or take any other action at its discretion, at any time with immediate effect and without written notice or liability to any Member, for any reason in Boost’s sole discretion, including, but not limited to, if Boost believes: (a) the Member has (1) violated any of the Program Rules; (2) acted in a manner inconsistent with applicable law, regulations or ordinances; (3) engaged in any misconduct or wrongdoing in connection with the Loyalty Rewards Program; (4) accumulated Points by purchasing products for purposes other than personal use (e.g. for resale or distribution purposes); or (5) engaged in abusive, fraudulent, inappropriate, or hostile conduct in connection with the Loyalty Rewards Program, or Boost or its Members or employees; or (b) Boost’s provision of the Loyalty Rewards Program and/or any associated benefits (including but not limited to Points, sweepstakes, coupons) to Member may violate any applicable laws to which Boost is subject from time to time. Membership in the Program may be revoked at any time. If you are not eligible to participate, you are prohibited from accessing, using, and registering for the Loyalty Rewards Program. If you are registered for an Account with this Loyalty Rewards Program and want to stop participating, delete or cancel your account by calling 1-800-247-7893 and speaking with a Boost Contact Center Associate.
3. PROGRAM PARTICIPATION
a. Reward Tier Cycle
Points earned will be viewable through the Member’s online Account. There are three (3) Reward Tiers (“Tiers”), and only actions from the past twelve (12) months will be counted toward tier eligibility (“Reward Tier Cycle”). Upon reaching the required spend, the relevant Tier and the specified Rewards associated with that Tier (described in more detail below), will be unlocked.
Boost reserves the right to modify, reset or terminate any Reward Tier Cycle(s) at any time, with or without notice or cause, in its sole discretion.
b. Earning Points
Once a Member has completed the enrollment process, they may begin “earning” points. Through your participation in the Program, you as a Member will have the opportunity to earn points (“Points”) each Reward Tier Cycle by purchasing products directly from the Website and for engaging in or completing certain specified qualifying tasks or activities (each, a “Qualifying Activity”) on the Website. Purchases made or activities performed prior to enrollment or on third-party sites are not eligible to earn Points. For each Qualifying Activity completed during a Reward Tier Cycle, the Member will receive a pre-determined and pre-announced number of Points (“Point Value”) for that Reward Tier Cycle, as determined by Boost in its sole discretion. A full and up-to-date list of Qualifying Activities for the current Reward Tier Cycle and their Point Values may be found in your online Account portal. From time to time, Boost may periodically offer additional promotions and Qualifying Activities through which you may be able to earn Points. Any such offers are subject to additional terms, which may be revoked or revised in Boost’s sole discretion.
Members that refer a friend(s) through the Boost’s Loyalty Rewards Program, when such friend makes a purchase that ships from the Site, will receive $10 off a Boost.com purchase for each successful referral. The date of the referral will be measured by the date on which the friend’s purchase ships. After the Member earns Points for two (2) qualifying referrals per calendar month, the Member will not accrue any additional Points if they refer any additional friends through the Program who make a purchase on the Site that ships that month.
Boost reserves the right in its sole discretion, at any time during the duration of this Loyalty Rewards Program, to change the number of Points awarded, or to award no Points, for any particular Qualifying Activity, to offer additional or new Qualifying Activities for a limited time or permanently, to delete any or all means to earn Points, to limit the number of times a Member may earn Points for engaging in a Qualifying Activity or engaging in the activity during a specific time period, or to offer Points earning opportunities to select groups of Members.
Also, Boost may offer Points for engaging in a Qualifying Activity under one set of Official Rules for one promotion, and may opt not to offer Points for engaging in that same activity under a subsequent promotion.
c. Limitations and Exclusions on Qualifying Activities
Members’ Account and activities in connection with this Loyalty Rewards Program are subject to these Program Rules, including the below limitations and exclusions:
Points earned may be redeemed towards one-time Member purchases in 100 point increments up to 600 points. Every 100 points qualifies a Member for $5.00 off their one-time purchase after any subscribe & save discount and before shipping & taxes. Points may be redeemed toward purchases as part of the Boost® Subscription Program. Points may not be applied to an order with any additional promotional coupons. Points will follow a first in, first out system: when a Member redeems Points towards a purchase or Reward, the first Points that were historically earned will be applied first.
Upon reaching a pre-announced annual spend, certain Rewards Tiers and associated Rewards will be unlocked for redemption by the Member. There are three (3) Reward Tiers and upon reaching the required annual spend, the relevant Tier and the Rewards associated with that Tier will be unlocked. The Rewards Tiers are in ascending order: Bronze ($0 - $249), Silver ($250 - $499), and Gold ($500 or more). Unlocking a Reward Tier does not reset your accumulated Points.
Points expire one (1) year from the date they are earned.
Each Tier contains one or more Rewards, which may vary from year to year. Boost may change or remove any Reward at any time and without notice. Rewards may include, but are not limited to a birthday points, early access to new products and restocks, point multipliers, loyalty anniversary points and more. Rewards may vary depending on the Program Rules at the time of access, and subject to availability. To view the current Rewards being offered for each Tier, please visit https://www.boost.com/rewards.
In order to unlock the Silver Tier, the Member must spend between $250 - $499 on products that ship out within a Reward Tier Cycle. In order to unlock the Gold Tier, the Member must spend at least $500 on products that ship out within a Reward Tier Cycle. Boost reserves the right to change, modify, or otherwise alter these requirements at any time and without notice.
Boost may modify, terminate or remove any Reward, the requirements for earning Rewards, and/or the terms and conditions applicable to any specific Reward at any time. Rewards may vary depending on the Program Rules at the time of access, and are subject to availability.
5. PROGRAM ACKNOWLEDGEMENTS.
By enrolling in this Loyalty Rewards Program, each Member acknowledges and agrees that:
6. ADDITIONAL TERMS AND CONDITIONS
a. Program Updates; Member Communications
From time to time, Rewards and other information will be updated on the Boost Loyalty Rewards Program Website (https://www.boost.com/rewards).
Please check the Website from time to time for the most up-to-date information and notices.
Any changes to Member contact information should be made by Member under their My Account page. By creating an Account and becoming a Member of the Program, Member agrees to receive advertising, marketing materials and other communications from Boost as permitted by law. Boost is not responsible for communications, including Rewards, lost due to a change of email address or other contact information.
ANY AND ALL APPLICABLE FEDERAL, STATE, PROVINCIAL, AND LOCAL TAXES AND ALL FEES AND EXPENSES RELATED TO ACCEPTANCE AND USE OF REWARD ARE NOT SPECIFICALLY STATED HEREIN ARE THE RESPONSIBILITY SOLELY OF MEMBER.
c. Termination / Cancellation
With the exception of individual promotions, which shall have start and end dates as set forth in the Official Rules for the individual promotions, the Boost Loyalty Rewards Program has no predetermined termination date and may continue until such time as Boost, at its sole discretion, elects to designate a program termination date. Boost reserves the right, in its sole discretion and without notice, to terminate, cancel or expire the Program, in whole or in part, or an individual Member’s enrollment in the Program for any reason and at its sole discretion, with or without cause.
“Termination” shall be defined as ending the Boost Loyalty Rewards Program, with no further ability to earn Points and/or redeem Rewards by any Member in the Program; the Program has not been terminated if a replacement/successor program is made available to the Program Members that offers the Members a reasonable means to earn Points and redeem Rewards. “Cancellation” shall be defined as the expiration or revocation of an individual Member’s Account, for any reason, with or without cause.
Company reserves the right, in its sole discretion and without notice, to cancel a Member’s enrollment in the Program after twelve (12) months of account inactivity. All accrued Points and Rewards will be lost if the membership expires or is cancelled for any reason.
d. Caution and Warning
ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THIS REWARD PROGRAM OR THE WEBSITE IS A VIOLATION OF CRIMINAL AND CIVIL LAWS. SHOULD SUCH AN ATTEMPT BE MADE, BOOST RESERVES THE RIGHT TO SEEK DAMAGES OR OTHER REMEDIES TO THE FULLEST EXTENT PERMITTED BY LAW. Any abuse of the Program, failure to follow any terms of the Program, or any misrepresentation by a Member may subject that Member to termination of his/her Account and will affect eligibility for future participation in the Program. Boost reserves the right to seek all remedies, whether available at law or at equity, criminal or civil, in the event Member defrauds or abuses the Program, fails to follow any terms of the Program, or makes any misrepresentations to Boost.
e. Modification of Agreement
Member acknowledges that Boost has the right to change, update, revise, limit, supplement and otherwise modify the terms of this Agreement and impose new or additional terms and conditions on Member’s use of the Account, at any time, at its discretion, with or without notice, even though such changes may affect the accumulation of Points or the ability to obtain Rewards. Boost reserves the right to change the Program Rules at any time in its sole discretion without prior notice to Member, including but not limited to: (i) the qualifications for membership; (ii) the value of Points earned by the Member; (iii) the qualifying spend on purchases needed to unlock a Tier or earn a Reward; (iv) the start, duration, and conclusion of each Reward Tier Cycle; and (v) the Rewards available to be earned.
f. LIMITATION OF LIABILITY AND RELEASE
BY ENROLLING IN THE PROGRAM, ACCUMULATING POINTS AND RECEIVING REWARDS, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF YOUR HEIRS, EXECUTORS, AND ADMINISTRATORS, AGREE: (A) TO BE BOUND BY THESE PROGRAM RULES AND BY ALL APPLICABLE LAWS AND DECISIONS OF SPONSOR AND ADMINISTRATOR, WHICH SHALL BE BINDING AND FINAL; (B) TO WAIVE ANY RIGHTS TO CLAIM AMBIGUITY WITH RESPECT TO THESE TERMS AND CONDITIONS; (C) TO WAIVE ALL OF YOUR RIGHTS TO BRING ANY CLAIM, ACTION, OR PROCEEDING AGAINST BOOST, YOTPO, PARENT OR AFFILIATED ENTITIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) IN CONNECTION WITH THE WEBSITE, ANY REWARDS PROGRAM, INCLUDING ANY REWARD, AND (D) TO FOREVER AND IRREVOCABLY AGREE TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, CAUSES OF ACTION, PROCEEDINGS, DEMANDS, FINES, PENALTIES, LIABILITY COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, OUTSIDE ATTORNEYS' OR LEGAL FEES) THAT MAY ARISE IN CONNECTION WITH: (I) THE WEBSITE, ANY REWARDS PROGRAM, OR ANY ACTIVITIES IN CONNECTION WITH THE WEBSITE OR A REWARDS PROGRAM, OR ANY REWARD, INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION OR INABILITY TO PARTICIPATE IN ANY REWARDS PROGRAM OR OTHER ACTIVITY, (II) TYPOGRAPHICAL, PRINTING, AND OTHER ERRORS IN THESE PROGRAM RULES OR ANY REWARDS PROGRAM MATERIALS, (III) ANY CHANGE IN ANY REWARD (OR ANY COMPONENTS THEREOF) DUE TO UNAVAILABILITY, OR DUE TO REASONS BEYOND BOOST CONTROL, (IV) ANY INTERRUPTIONS IN OR POSTPONEMENT, CANCELLATION, OR MODIFICATION OF ANY REWARDS PROGRAM, (V) HUMAN ERROR, (VI) INCORRECT OR INACCURATE TRANSCRIPTION, RECEIPT OR TRANSMISSION OF ANY ENTRY, (VII) ANY TECHNICAL MALFUNCTIONS OR UNAVAILABILITY OF THE WEBSITE OR ANY TELEPHONE NETWORK, COMPUTER SYSTEM, COMPUTER ONLINE SYSTEM, COMPUTER TIMING AND/OR DATING MECHANISM, COMPUTER EQUIPMENT, SOFTWARE, OR INTERNET SERVICE PROVIDER, OR MAIL SERVICE UTILIZED BY BOOST, ANY OF THE RELEASED PARTIES OR BY YOU, (VIII) INTERRUPTION OR INABILITY TO ACCESS THE WEBSITE OR ANY ONLINE SERVICE VIA THE INTERNET DUE TO HARDWARE OR SOFTWARE COMPATIBILITY PROBLEMS, (IX) ANY LOST/DELAYED DATA TRANSMISSIONS, OMISSIONS, INTERRUPTIONS, DEFECTS, AND/OR ANY OTHER ERRORS OR MALFUNCTIONS, (X) ANY LATE, LOST, STOLEN, MUTILATED, MISDIRECTED, ILLEGIBLE, DELAYED, GARBLED, CORRUPTED, DESTROYED, INCOMPLETE, UNDELIVERABLE OR DAMAGED REWARDS PROGRAM SUBMISSIONS, (XI) ANY WRONGFUL, NEGLIGENT, OR UNAUTHORIZED ACT OR OMISSION ON THE PART OF ANY OF THE RELEASED PARTIES OR OF ANY OTHER THIRD PARTY, (XII) LOST, LATE, STOLEN, MISDIRECTED, DAMAGED OR DESTROYED REWARDS (OR ANY ELEMENT THEREOF), OR (XIII) THE NEGLIGENCE OR WILLFUL MISCONDUCT BY YOU OR OF ANY THIRD PARTY. BOOST AND RELEASED PARTIES ARE NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE, WHETHER TO YOU OR TO ANY OTHER PERSON OR TO ANY PROPERTY, RELATED TO OR RESULTING FROM YOUR PARTICIPATION IN ANY REWARDS PROGRAM, IN ANY ACTIVITY OR “CHALLENGE” AND/OR THE ACCEPTANCE OR USE OF ANY REWARD. BY PARTICIPATING IN THE REWARDS PROGRAM, OR THE USE OF ANY REWARD, YOU EXPRESSLY ASSUME ALL LIABILITY AND RESPONSIBILITY FOR YOUR PARTICIPATION AND AGREE THAT PARTICIPATION IS SOLELY AT YOUR OWN RISK.
By enrolling in this Loyalty Rewards Program, Member agrees for Member and Member’s heirs, executors, administrators and assigns, to release and hold harmless, and hereby releases and holds harmless, the Released Parties from any and all liability for loss, harm, damage, injury, cost or expense whatsoever arising from or in connection with: (1) any unauthorized access to, alteration or use of Member’s account, transmissions or data, any material or data sent or received or not sent or received through this Loyalty Rewards Program, (2) any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any third party or any infringement of another's rights, including intellectual property rights; or (3) a Member’s acceptance, possession, grant, or use of any points, prize or reward, including without limitation, product failure or liability, personal injury, death and property damage arising therefrom. Any health information provided on the Website or by Boost is for educational and entertainment purposes only, and are not to be interpreted as a recommendation for a specific treatment plan, product, or course of action. Boost disclaims any liability from and in connection with the Website, and you agree that we are not liable for any injury you may sustain by participating in the Program.
IN NO EVENT SHALL THE RELEASED PARTIES HAVE ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR, AND THE RELEASED PARTIES SHALL BE HELD HARMLESS BY ALL MEMBERS AGAINST, ANY AND ALL INJURIES, LOSSES OR DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO PERSONS, INCLUDING PERSONAL INJURY OR DEATH, OR PROPERTY, ARISING IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM ACCEPTANCE, POSSESSION, MISUSE OR USE OF POINTS OR ANY REWARD OR PRIZE, AND/OR PARTICIPATING IN THE LOYALTY REWARDS PROGRAM, PROGRAM-RELATED ACTIVITIES, AND OTHER PROMOTIONS OPERATED IN CONNECTION WITH THIS LOYALTY REWARDS PROGRAM, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE FOR ANY (A) MATTER BEYOND THEIR REASONABLE CONTROL, OR (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED. SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE RELEASED PARTIES ARE NOT RESPONSIBLE IF ANY REWARD CANNOT BE AWARDED DUE TO CANCELLATIONS, DELAYS, OR INTERRUPTIONS DUE TO ACTS OF GOD, ACTS OF WAR, NATURAL DISASTERS, WEATHER, OR TERRORISM. BY PARTICIPATING IN THIS LOYALTY REWARDS PROGRAM, MEMBER AGREES THAT THE RELEASED PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INJURIES, DAMAGES, OR LOSSES OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES TO PERSONS, INCLUDING DEATH, OR TO PROPERTY ARISING OUT OF ACCESS TO AND USE OF ANY WEBSITE ASSOCIATED WITH THIS LOYALTY REWARDS PROGRAM OR THE DOWNLOADING FROM AND/OR PRINTING OF MATERIAL DOWNLOADED FROM SUCH SITE. BOOST DISCLAIMS ANY LIABILITY FROM AND IN CONNECTION WITH THE WEBSITE.
g. DISCLAIMER OF ALL WARRANTIES
THIS LOYALTY REWARDS PROGRAM, INCLUDING, WITHOUT LIMITATION, POINTS AND REWARDS, AND ALL PROGRAM SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NEITHER SPONSOR OR ITS AGENCIES, AGENTS, SUPPLIERS OR REPRESENTATIVES WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THIS LOYALTY REWARDS PROGRAM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THIS LOYALTY REWARDS PROGRAM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED; OR (F) ANY LEADERBOARD USED IN CONNECTION WITH THIS LOYALTY REWARDS PROGRAM OR ANY RELATED PROMOTION IS ACCURATE OR COMPLETE. A MEMBER’S USE OF THE REWARDS PROGRAM IS SOLELY AT THE MEMBER’S OWN RISK.
h. DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. IT LIMITS THE RIGHT TO OBTAIN DISCOVERY OTHER THAN AS PERMITTED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”), AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR BOOST WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
For purposes of this Section, “Boost” shall include its subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.
(a) Mandatory Notice Of Dispute And Informal Dispute Resolution Process. If you and Boost have a Dispute (defined below), you and Boost agree to make a good faith effort to resolve the Dispute informally prior to initiating a formal arbitration proceeding. Before initiating an arbitration, you and Boost each agree to first provide the other with a detailed written notice (“Notice of Dispute”). The Notice of Dispute must include (i) the name, telephone number, mailing address, and email address of the person or entity providing the notice; (ii) a statement of the legal claims asserted and the factual basis for those claims; and (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy.
If you provide a Notice of Dispute to Boost, the Notice of Dispute must be mailed via first-class mail, FedEx, or UPS to: Nestlé HealthCare Nutrition, Inc., Attn: Boost Legal Department, 121 River Street, 9th Floor, Hoboken, NJ 07030. Your Notice of Dispute must include your personal signature. If Boost provides you with a Notice of Dispute, Boost will mail the notice via first-class mail, FedEx, or UPS to the billing address associated with your Account and/or billing information (the “Notice Address”). If Boost is unable to reach you at the Notice Address, it may provide a Notice of Dispute to you via email at the email address associated with your Account.
If requested by the party that receives the Notice of Dispute, the other party must personally appear at and participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Dispute.
For a period of sixty (60) days from the date of receipt of a complete Notice of Dispute, you and Boost agree to make attempts to resolve the Dispute prior to commencing an arbitration and not to commence an arbitration proceeding until the 60-day post-notice resolution period expires, which period may be extended by agreement of the parties. If an agreement cannot be reached within 60 days of receipt of the Notice of Dispute, you or Boost may commence an arbitration proceeding, pursuant to the procedure outlined below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing any formal dispute resolution proceeding, including a demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution process.
If the sufficiency of a Notice of Dispute or compliance with this mandatory informal dispute resolution process is at issue, it may be decided by a court of competent jurisdiction at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.
(b) ARBITRATION AGREEMENT. IF WE ARE UNABLE TO RESOLVE ANY DISPUTE THROUGH THE INFORMAL DISPUTE RESOLUTION PROCESS, YOU AND WE AGREE THAT ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND ANY BOOST PARTIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, ARISING OUT OF OR RELATING TO THE SITES, TO THE USE OR ACCESS THEREOF, TO THE PRODUCTS, SERVICES, MATERIALS, PROMOTIONS, PROGRAMS OR OTHER FEATURES OFFERED ON OR THROUGH THE SITES, AND/OR TO THE APPLICATION, ENFORCEABILITY, SCOPE, OR INTERPRETATION OF THIS AGREEMENT TO ARBITRATE (“Disputes”), SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION. THE SOLE EXCEPTIONS TO THIS REQUIREMENT ARE THAT (I) YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY, as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (II) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Dispute will be given the broadest possible meaning permitted by law. It includes claims that arose before this or any prior agreement or that arise after the termination of this agreement. BY AGREEING TO THESE TERMS, YOU GIVE UP YOUR RIGHT TO BRING AND PROSECUTE ANY DISPUTES WITH BOOST IN A COURT OF LAW OR BEFORE A JURY TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
ALL DISPUTES SHALL BE DETERMINED BY BINDING ARBITRATION (1) ADMINISTERED BY JAMS, PURSUANT TO THE JAMS STREAMLINED ARBITRATION RULES & PROCEDURES EFFECTIVE JUNE 1, 2021 (THE “JAMS RULES”), AND AS MODIFIED BY THIS AGREEMENT TO ARBITRATE; (2) CONDUCTED BY A SINGLE, NEUTRAL ARBITRATOR; AND (3) TAKE PLACE TELEPHONICALLY UNLESS AN IN-PERSON HEARING IS SPECIFICALLY REQUESTED BY EITHER PARTY. IF AN IN-PERSON HEARING IS REQUESTED, SUCH IN-PERSON HEARINGS SHALL TAKE PLACE IN THE COUNTY OF THE BILLING ADDRESS ASSOCIATED WITH YOUR MEMBERSHIP IN THE REWARDS PROGRAM, OR THE COUNTY WHERE YOU RESIDE, IN THE INSTANCE WHERE NO ACCOUNT EXISTS. TO THE EXTENT THAT THIS AGREEMENT TO ARBITRATE CONFLICTS WITH THE JAMS POLICY ON CONSUMER ARBITRATIONS PURSUANT TO PRE-DISPUTE CLAUSES MINIMUM STANDARDS OF PROCEDURAL FAIRNESS (THE “MINIMUM STANDARDS”), THE MINIMUM STANDARD IN THAT REGARD WILL APPLY. You and a Boost representative shall personally appear (with counsel if you and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
DISPUTES MAY ALSO BE REFERRED TO ANOTHER ARBITRATION ORGANIZATION IF YOU AND BOOST AGREE IN WRITING, OR TO AN ARBITRATOR APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/ or by calling JAMS at 800-352-5267. To commence an arbitration, a Demand for Arbitration is required to be executed and served on Boost. Service of the Demand for Arbitration on Boost can be mailed to Boost Legal Department, Nestlé HealthCare Nutrition, Inc., Attn: Legal Department, 121 River Street, 9th Floor, Hoboken, NJ 07030, pursuant to the instructions provided by JAMS to submit a Dispute for arbitration. Service of the Demand for Arbitration on you will be sent to the Notice Address. Further instructions on submitting a Demand for Arbitration can be found at www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf.
Except as expressly provided in this Dispute Resolution section, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Dispute Resolution section including, but not limited to, a claim that all or any part of it is void or voidable. The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. The arbitrator shall have the authority under Federal Rule of Civil Procedure 11 to issue sanctions against any party and counsel as a court would. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. Notwithstanding anything to the contrary, Boost will pay all fees and costs that we are required by law to pay.
BECAUSE THE REWARDS PROGRAM PROVIDED TO YOU BY BOOST CONCERNS INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE ARBITRABILITY OF ALL DISPUTES. HOWEVER, APPLICABLE NEW YORK STATE OR U.S. FEDERAL LAW MAY ALSO APPLY TO THE SUBSTANCE OF ANY DISPUTES. YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL.
(c) Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Boost by the same or coordinated counsel or are otherwise coordinated (and your claim is one such claim), you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following process. Counsel for the claimants and counsel for Boost shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any JAMS fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, and Boost shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any JAMS fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, and Boost shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by JAMS in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Boost agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Dispute Resolution section where a Notice of Dispute or Demand for Arbitration has been submitted, from the time the first cases are selected for a bellwether process until the time your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Boost. Should a court of competent jurisdiction decline to enforce these “Special Additional Procedures for Mass Arbitration,” you and we agree that your and our counsel shall engage in good faith with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with JAMS to address reductions in arbitration fees.
(d) NO CLASS ACTIONS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL DISPUTES WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS, COLLECTIVE OR REPRESENTATIVE ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION OR ARBITRATE ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Further, unless both you and Boost expressly agree otherwise, the arbitrator may not consolidate more than one person’s claim and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding.
If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Section (Dispute Resolution), the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
i. INAPPROPRIATE CONTENT AND ACTIONS; MEMBER IDENTITY DISPUTES
In addition, the following terms and conditions apply:
Sponsor reserves the right, in its sole discretion, to disqualify any individual it finds to be (a) tampering with the operation of this Loyalty Rewards Program, or with the Website or any other websites or Approved Sites relating to this Loyalty Rewards Program; or (b) acting in violation of these Program Rules. Any attempt by a Member or any other person to deliberately damage the Website or undermine the legitimate operation of this Loyalty Rewards Program may be a violation of criminal and civil laws; and should such an attempt be made, Sponsor reserves the right to seek remedies and damages (including attorneys’ and experts’ fees) from any such entrant or other person to the fullest extent permitted by law, including seeking criminal prosecution.
For more information about the Program and/or Member Accounts, or if you have other questions, see the Program Website https://www.boost.com/rewards, Program FAQs, or call us at 1-800-247-7893 Monday – Friday: 8 am – 8 pm EST, Saturday: 9 am – 5:30 pm EST.
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