Dear valued customer, please read these Terms of Service (hereinafter – “Terms”) carefully before using any feature of musclefitnesspro.com (hereinafter – “Website”) or purchasing any of the products therein.
These Terms govern your use of the Website and any of its features, and together with all other terms and policies specified below, it shall form a legally binding agreement between You (hereinafter – “user” or “you”) and us. Please take your time to read these Terms carefully before making any purchase on the Website. If You have not read and/or understood the provisions of these Terms, we recommend that you do not continue to use the Website and contact our customer support, which will be happy to answer your questions.
We also advise you to read our FAQ section, which is available on the Website, before purchasing any goods or services on the Website.
1. Who we are
Mocha Cyan Inc. (hereinafter referred to as the “Mocha Cyan Inc.”, “we”, “us”, “our”) is a brand name used and operated by a business entity Mocha Cyan Inc., a company incorporated under the laws of United States, data about the company is stored and kept with the Register of Legal Entities in United States, with a registered office address at Mocha Cyan Inc. 18298 Creedkside Preserve Loop #201 Fort Myers, FL 33908. Whenever you will buying anything on the Website you will be entering into a contractual relationship with Us and this contractual relationship shall be bound and determined by these Terms and applicable laws.
Please be noted that all purchases that You will make on the Website will be sent to You from one of our fulfillment centers that will have a different address than our correspondence or office address. If you want to contact us or send us anything by post mail, please contact our customer support first and you will be provided with the address and other contact details.
If you have any questions, inquiries, or complaints regarding the Website or our services You can always contact our customer support at Hello@musclefitnesspro.com.
2. Our products
Mocha Cyan Inc. – is an online retailer of various supplement products (“Products”). Our Products are manufactured in US by licensed and registered manufacturers. All Products are compliant with the legal requirements applicable to such product category in US and other countries where our Products are available.
Please be noted that even though the Products are safe and suitable to be consumed by children, however, the Products and the Website are not primarily designed and created for children. We recommend to keep the Products away from the reach of children and allow them to consume the Products moderately.
Product images are for illustrative purposes only and may differ from the actual product. Due to differences in monitors, colours of products may also appear different to those shown on the site.
Our Products can supplement your dietary needs and be beneficial for your general wellness if used as a part of a balanced diet and regular exercise as well as an overall healthy and active lifestyle.
BCAA AMINO BUILD : $54.99
CREATINE CELL TECH : $79.99 PROTEIN NITRO-TECH : $49.99
MUSCLEBUILDING 100% MASS GAINER : $68.94
PRE-WORKOUT SHATTER ELITE : $39.99
PRE-WORKOUT VAPORX5 : $69.99
BCAA AMINO BUILD | PACK OF 3 :$99.99
VAPORX5 Pre-workout + Shatter Pre-workout + Nitro Tech Protein : $245.99
PRE-WORKOUT VAPORX5 | Pack of 3 : $195.99
PROTEIN NITRO-TECH | Pack of 3 : $159.99
3. Whom do we sell to
Please be noted that our Products are not sold for and cannot be used for commercial use, as we sell our Products for personal use only. We reserve the right to reject any purchase requests if we have a reason to believe that a person is purchasing our Products not for personal, but industrial or commercial use, including but not limited to reselling online or in physical stores.
The Website’s primary target audience is adult users. We do not encourage or address children or minors to visit our Website or make any purchases therein.
We reserve the right to cancel your purchase and reject any payments that you make on the Website if we have a reason to believe that:
You are buying our Products for industrial or commercial use (including reselling or leasing);
You are younger than 13 years of age and purchasing from the United States of America, and other countries where this product is available;
You are younger than 16 years of age and purchasing from any country of the European Union;
You have not read and accepted these Terms.
By agreeing to these Terms and making a purchase on Our Website you confirm to Us, that:
You are above the legal age applicable in your country for entering into any distant purchase agreement;
Your provided contact, billing, and shipping information is true and correct;
You are paying for the product with the credit card that belongs to you or the owner of the credit card has authorized you to use the card and such authorizations were issued in a form which is required in your place of residence;
You are purchasing the products for personal use only.
Once you have placed your order on the Website and made the payment, we will process your order within 1-2 business days. Usually, if you have placed your order before 12 AM Eastern time, we will process your order same day, if later – then within the next business day. If you choose standard delivery, we will deliver your products within 3 to 5 business days.
On your check-out from our store you may be eligible to choose a specific delivery method, such as expedited delivery or Cash on Delivery. As your preferences for delivery method might affect shipping costs, all prices for products in our store are displayed without the shipping costs. You will be provided with a shipping costs estimate on the check-out page, once you have provided your shipping address details.
Please be noted that:
the shipping terms may be affected by customs, natural occurrences, transfers to the carrier, air and ground transportation strikes or delays, pandemic, etc. We will be not responsible for delays if the shipment will be delayed due to the aforementioned reasons;
once Your order has been processed and dispatched we will not be able to accept any changes to Your order.
All Products purchased on our Website will be delivered to you by UPS, FedEx, USPS, or DHL mail. After we finish processing your order we will send you a confirmation letter containing your shipment tracking number. You will be able to track your order by following the tracking link that we will provide to you with a confirmation letter.
In case your purchase does not reach you within 7 business days, please report to our customer support and inform us about an acceptable and reasonable additional period of time upon which we will deliver you your purchase. You shall be entitled to terminate the purchase only if We have failed to deliver your purchase within the additional time limit. Please be noted, that you cannot claim to not have received the purchased goods if the rules set out in this provision are not followed.
30-Day Money-Back Guarantee
We offer a 30-day money-back guarantee for all United States users, placing a purchase request for the first time on our Website. For your first purchase of any Product you can request a refund if you are not satisfied with the purchased Product.
All of our products purchased on our website are backed behind a 30day guarantee, at any time after purchase customers can return products hassle free.
If you are not happy with your purchased Product, please contact our customer support by email (Hello@musclefitnesspro.com) as soon as you can, but not later than within 30 days from receipt of order. Refund on this Money Back Guarantee basis are limited to one time per household and not more than one Product of each Product category.
If you want to return a purchased Product, You are responsible for return shipping. If the product(s) you are returning exceeds a $50 value, we recommend including a tracking option or shipping insurance as an additional security measure.
After receiving your return to our designated address provided to you, we will verify the contents and your proof of purchase.
When Your returned products will be delivered back to us, Your refund will be processed within 14 days after receiving the returned product. You can choose to either receive a money refund, exchange to another Product, or store credit for future purchase.
To handle your money back claim, please be prepared to provide our customer support the following information:
Location of Purchase
Consumed product previously?
Picture(s) of Product and/or concern
We reserve the right to deny any return or refund claim if we believe that the claim is not made in good faith. This money-back guarantee policy might be subject to change without prior notice. We may also amend this policy if required by the laws of the state in which you live.
Certain products on the Website may be designated as Final Sale or Non-refundable. We will not be able to offer you refunds for such products.
Returning a Defected Product
Within 30 days from receipt of order for unused products for unused products, you can return a Product and receive a refund, exchange or store credit for future purchases, if you have received a Product which is either (“Defected Product”):
damaged or contaminated package;
defected, rancid, rotten or otherwise bad; or
substantially different from what you have ordered (incorrect item).
If you have received a defected item, please contact our Customer support by email Hello@musclefitnesspro.com as soon as you can, but no later than within 30 days from receipt of order for unused products the defected item, and be prepared to provide the following information to our customer support:
Location of Purchase
Consumed product previously?
Picture(s) of Product and/or concern
Shipping receipt or invoice.
We will collect the Defected Products from you free of charge – our customer support will provide you with a free shipping label and other details on how we will collect the Defected Product from you. Please be noted that we will only accept returns if they will be delivered to us in ways specified to you by our customer support.
We may refuse to issue a refund for Defected Product, if:
Defected Product was used extensively more than necessary to identify a defect (for example, if half of the Product was used prior to return);
you are unable to provide the Defected Product for inspection;
after close inspection, we have not found the defects that you have specified
Your refund will be processed within 14 days after receiving the Defected Product and inspecting it by us. As a refund, you may choose to either receive a money refund, exchange it to another Product, or store credit for future purchase.
6. Pricing, payments, and charges
Prices for Products sold on the Website might be subject to change. We reserve the right to modify or discontinue further sales of any products. We will not be liable to you or any third-party for any modification, price change, suspension, or discontinuance of the sale of products.
The prices displayed on the Website are not inclusive of shipping costs and taxes, which will be specified in the check-out page once you provided us the necessary details. Consumers from different countries or states may see product or delivery prices which would be different – the prices may be affected by sales taxes which might be applicable depending on each case, or by shipping costs that would be implied for particular locations.
Please be noted that we will never apply any conversion rates or charges dependable on your chosen payment method. However, some banks apply conversion rates for outgoing payments and international transfers – thus, we are not responsible for any bank fees or conversion rates that your bank would apply for any payment made to Us. If you notice any differences between the product prices on our Website or purchase receipt and your bank account statement, please refer to your bank for a detailed explanation of the additional charges.
We accept payments only by credit cards.
7. Rules of conduct
Please be noted that our Products are sold for personal use only. By agreeing with these Terms you confirm that you will only buy our Products for personal use.
You may not use our Products for any illegal or unauthorized purpose nor may you, in the use of the Website, violate any laws. All contents of the Website and the contents of all materials received from us (including graphic designs and other contents) and the relevant parts of the Website belong to the ownership of Mocha Cyan Inc. and are protected by the copyright laws. Any use of any copyrights for purposes other than personal use, without our license, constitutes a breach of copyright.
By agreeing to these Terms, you confirm that you understand that the purchased Products may not be returned once they are delivered to you and you have opened the Product package.
We have the right, but not obligation, to investigate any illegal and/or unauthorized use of the Website and take appropriate legal action, including without limitation, civil, and injunctive relief if we have a reason to believe that you are violating these Terms or applicable laws. While using the Website, you must:
Not use the Website or any of its contents for any illegal purpose, or in violation of any local, state, national, or international law;
Not violate or encourage others to violate the rights of third parties, including intellectual property rights;
Comply with all policies posted on the Website;
Not transfer, legally or factually, your registered account to another person without our written consent;
Provide honest and accurate information to us;
Not use the Website or any of its contents for any commercial purpose, including distribution of any advertising or solicitation;
Not reformat, format, or mirror any portion of any web page of the Website;
Not create any links or redirections to the Website through other websites or emails, without prior written consent given by us;
Not make any attempts to interfere with the proper functioning of the Website or the use and enjoyment of the Website by other users;
Not commercially resell, redistribute or transfer any Products that you buy from us;
Not interfere in any way with security-related features of the Website;
Not access, monitor or copy any content or information of the Website using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission;
Not claim false affiliations, access the accounts of other users without permission, or falsify your identity or any information about you, including age or date of birth;
Not perform any other activity or action which would be incompliant with these Terms or applicable laws.
8. No warranties
Please be noted that all Products are sold “as is” and we provide no warranties regarding suitability for your personal needs or preferences. We provide no warranties or claims with regards to the Products properties and we do not claim that the Products would be suitable to treat, diagnose, mitigate or have any other effect for specific conditions or disease, as our Products are not medical products.
Mocha Cyan Inc. is not a medical organization and we cannot give you any medical advice or assistance. Nothing on the Website should be taken or understood as medical advice or assistance nor should it be interpreted in substitution for any medical advice or assistance, or used, referred to instead of seeking appropriate medical advice or assistance from health care providers. You are solely responsible for evaluating and assessing your own health and dietary needs.
If you have specific allergies or health conditions that might be affecting your body’s fat and protein metabolism, you should consult your dietician or physician before using our products that are high in proteins and healthy fats.
Our Products are intended to be used as part of a healthy lifestyle and may supplement a balanced diet. However, we do not claim that our products should be used as a replacement for a varied and balanced diet. Although many people do not meet dietary recommendations, we recommend that you should aim to eat as varied and balanced diet as possible.
We do not guarantee, represent, or warrant that your use of the Website will be uninterrupted, timely, secure, or error-free. You agree that from time to time we may remove the Website for indefinite periods of time or cancel it at any time, without notice to you.
The Website may provide links to other websites maintained by third parties. Any information, products, software, or services provided on or through third-party sites are controlled by the operators of such sites and not by us or our subsidiary companies. When you access third-party sites, you do so at your own risk.
We honor the privacy of our customers, thus all testimonials and/or comments displayed on the Website might have fictional names and associative pictures. The identity of the consumers is known to us, but we will never display our users’ true names except when a user gives its consent to display his/her name and/or image.
All third-party trademarks displayed on this website are the property of their respective owners. The presence of a third-party‘s trademark on the Website does not mean that we have any rights to such trademarks or that it does have any relationship with that third-party or that the third-party endorses Mocha Cyan Inc..
Unless otherwise indicated, this Website is Mocha Cyan Inc. property and all source code, databases, functionality, software, designs, text, photographs, and graphics on the website are owned or controlled by Mocha Cyan Inc. and are protected by copyright and trademark laws. It is forbidden to copy or use any of the website’s contents without prior written approval by us.
Mocha Cyan Inc. is not affiliated with any governmental authorities or other companies with similar names, products, or services. We are a fully independent private company that strives to provide its customers with the best possible products.
The products offered on or through the website are provided ‘as is; and without warranties of any kind either express or implied. To the fullest extent permissible under applicable law, we disclaim all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose.
The products sold on our website are designed for personal use only. we do not claim that any of our products will be suitable for professional, industrial, or commercial use.
We do not warrant that the website or any of its functions will be uninterrupted or error-free, that defects will be corrected, or that any part of this site or the servers that make the site available, are free of viruses or other harmful components. We expressly disclaim liability for any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. Each user specifically acknowledges that we are not liable for the defamatory, offensive, or illegal conduct of other third-parties, subscribers, members, or other users of the website and that the risk of injury from the foregoing rests entirely with each user.
We do not make any representations or warranties about the correctness, accuracy, timeliness, or reliability of the website or third-party sites. Use of any information on the website or third-party websites is at the user’s own risk. Under no circumstances will we be liable for any loss or damage caused by reliance on information obtained through the website.
Any information provided on the Website is for informational and recreational purposes only and may not be used as dietary or health advice. The Website should not be used in any high-risk activities where damage or injury to persons, property, environment, finances, or business may result if an error occurs. You assume all risk for your use of information provided on the Website.
Mocha Cyan Inc. made every effort to display as accurately as possible the colors and images of all materials that appear on the Website. However, We cannot guarantee that your computer monitor’s display of any color will be accurate as well as that any display of any product or service on the Website will accurately reflect the actual properties of the product or service that You can find on the Website.
You agree to indemnify, defend and hold Mocha Cyan Inc. and its affiliates, and their respective officers, directors, owners, agents, information providers, and licensors harmless from and against all claims, liability, losses, damages, costs, and expenses (including attorneys’ fees) in connection with:
Your use of, or connection to, Our Website;
Any use or alleged use of Your account or Your account password by any person, whether or not authorized by You;
The content of information submitted by You to Us;
Your violation of the rights of any other person or entity;
Your violation of any applicable laws, rules, or regulations.
Mocha Cyan Inc. reserves the right, at its own expense, to assume defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Mocha Cyan Inc. defense of such claim.
Limitation of liability
Under no circumstances, including, but not limited to, negligence, shall we, our subsidiary companies, or affiliates be liable for any direct, indirect, incidental, special or consequential damages that result from the use of, or the inability to use, the website, including its materials, products, or services, or third-party materials, products, or services made available through the website, even if we are advised beforehand of the possibility of such damages. As some states do not allow the exclusion or limitation of certain categories of damages, the above limitation may apply to you in lesser extent. in such states, our liability and the liability of our subsidiary companies or affiliates is limited to the greatest extent that it can be limited under such state law.
In no case shall Mocha Cyan Inc., our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, health issues, sickness, physical problems, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. In no case shall Mocha Cyan Inc., be liable for any recommendations, health claims, statements, or any other advice or information provided on the website or any other forms of communication. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
If You are dissatisfied with the Website, any materials, products, or services displayed on the Website, or with any of the Website’s terms and conditions, your sole and exclusive remedy is to discontinue using the Website.
10. Personal data
We take reasonable precautions and follow industry best practices to protect Your personal information from being inappropriately lost, misused, accessed, disclosed, altered, or destroyed.
Please be noted that we may contact you via phone or email if we need to confirm any details of your order or if your order request was not processed successfully due to technical matters. If your order was not successful due to payment processing errors we might send you a text message or email with a reminder to carry out necessary actions.
With regards to these Terms, intellectual property rights mean such rights as trademarks, copyright, domain names, database rights, design rights, patents, and all other intellectual property rights of any kind whether or not they are registered (“Intellectual Property”).
All Intellectual Property displayed on the Website or provided to You in any other form is protected by law. You may not copy, repurpose, or distribute any Intellectual Property or any other content received from us or found on the Website, including Product descriptions, for any purpose, without our express written permission. For example, you may not copy Product information onto any other website or app. Without limiting the foregoing, the use of our content for commercial purposes is forbidden unless you have our express written permission.
All Intellectual Property displayed on the Website or provided to you in any other form belongs to Mocha Cyan Inc., except third-party trademarks, service marks, or other materials, which are used by us. None of such Intellectual Property may be used without the prior written consent of Us or the third party to whom such Intellectual Property belongs.
11. Governing law and disputes
If You have any complaints regarding the Website, fees, refunds, quality of Products, or anything related to the use of the Website, You must first contact our support team (Hello@musclefitnesspro.com) before taking any action through third parties.
All complaints or claims provided by you shall be processed within 30 days from receipt of order for unused products. We always put our best efforts into the positive settlement of the complaint or claim. When addressing us with your complaints, you must always identify yourself by the same first name and surname that you have provided to us when purchasing on the Website.
You agree that all matters relating to your access to or use of the Website, including all disputes, will be governed by the laws of the United States and by the laws of the State of Colorado without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Colorado and waive any objection to such jurisdiction or venue. Any claim under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.
Any claim must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method, you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive auto dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by an individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at Hello@musclefitnesspro.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.
Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Wilmington, Delaware before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which The Mocha Cyan Inc.’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
If any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these terms of service, such determination shall not affect the validity and enforceability of any other remaining provisions.
You can review the most current version of the terms of service at any time on this page. We reserve the right, at our sole discretion, to update, change, or replace any part of these terms of service by posting updates and changes to our website.
Mocha Cyan Inc.
18298 Creedkside Preserve Loop #201 Fort Myers, FL 33908