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Terms of Use

Last Modified: October 10, 2013

Welcome to the BigTrain.com website (the "Site"). Big Train, Inc. (“Big Train”, “we” or “us”) provides services to you subject to the notices, terms, and conditions set forth in this agreement (the "Agreement"). In addition, your access to and use of our Site or our services offered on or through the Site (e.g., Customer Reviews), will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they are incorporated into this Agreement by this reference (together with the Agreement, collectively, the “Terms of Use”). You agree that all information you provide is governed by our Privacy Policy and you consent to all actions we take with respect to your information consistent with our Privacy Policy. We reserve the right to change this Site and these terms and conditions at any time. ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THESE TERMS OF USE AND OUR PRIVACY POLICY FOUND AT https://www.bigtrain.com/t-privacy-policy.aspx, INCORPORATED BY THIS REFERENCE, SO PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE PROCEEDING. IF YOU DO NOT WANT TO AGREE TO THESE TERMS OF USE OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SITE.

USE OF SITE

This Site is offered and available to users who are 18 years of age or older. By using this Site, you represent and warrant that you are at least 18 years old. This Site is intended to be used only by individuals and entities that can form legally binding contracts under applicable law. Persons using the Site to purchase products or services or utilizing resources on behalf of an employer must do so only with the authorization of their employer. If you do not meet these requirements, you must not access the Site.

To access or use the Site, you may be asked to provide certain registrations details or other information. It is a condition of your use of the Site that the information you provide is correct, current and complete. We may restrict users, including registered users, access to some parts of the Site or the entire Site.

We may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or other identification provided for security purposes, you will be deemed to be authorized to access and use the Site in a manner consistent with the terms and conditions of these Terms of Use, and we have no obligation to investigate the authorization or source of any such access or use of the Site. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security. We reserve the right to disable any password or other identification at any time, in our sole discretion, for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use. Subject to the terms and conditions of these Terms of Use, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser or the mobile application on your mobile device, if available, only for the purpose of your use, including information gathering, shopping for items sold on the Site, online shipping and communication, and not for use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of these Terms of Use may result in the immediate revocation of the license granted in this paragraph without notice to you. No right, title or interest in or to the Site or any content on the Site is transferred to you and all right not expressly granted are reserved by Big Train.

Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. We reserve the right to refuse service, terminate accounts, and/or cancel orders at our discretion, including, without limitation, if we believe that customer conduct violates these Terms of Use, applicable law or is harmful to our interests.

PROHIBITED USES

You may use the Website only for lawful purposes and in accordance with these Terms of Use. Any use of the Site not expressly permitted by these Terms of Use is a breach of these Terms of Use. You agree not to use the Site: (i) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (ii) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Use; (iii) to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail", "chain letter" or "spam" or any other similar solicitation; (iv) to impersonate or attempt to impersonate Big Train or any other person or entity; (v) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site. Additionally, you agree not to: (i) use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site, including their ability to engage in real time activities through the Site; (ii) use any robot, spider or other automatic device, process or means to access the Site for any purpose, including monitoring or copying any of the material on the Site; (iii) use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent; (iv) use any device, software or routine that interferes with the proper working of the Site; (v) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; (vi) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer or database connected to the Site; (vii) attack the Site via a denial-of-service attack or a distributed denial-of-service attack; or (viii) otherwise attempt to interfere with the proper working of the Site.

CONTENT STANDARD

The Site may have message boards, chat rooms, or other interactive features that allow users to post, submit, publish, display or transmit user provided content to other users (“Submissions”) on or through the Site. All Submissions must comply with the standards set out in this paragraph (the “Content Standard”). Without limiting the following, you shall not upload to, distribute, or otherwise publish through this Site any Submissions or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or otherwise objectionable in the opinion of Big Train; (c) violates U.S. or international law or could give rise to any civil or criminal liability under U.S. or international law, including any laws regarding the export of data or software to and from the US or other countries; or (d) promotes any illegal activity.

It is your sole responsibility to consult a licensed physician or qualified health care professional for advice or nutritional recommendations. Submissions or opinions expressed on this Site are that of the user and may not reflect our opinions. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents. These materials do not necessarily reflect the opinion of Big Train. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

REVIEWS AND COMMENTS

Except as otherwise provided elsewhere in these Terms of Use or on the Site, all Submissions, including without limitation, ideas, know-how, techniques, questions, reviews, comments, and suggestions are and will be treated as non-confidential and non-proprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you. We have the right, but no obligation to remove or refuse to post any Submissions for any reason or no reason in our sole discretion. We have the right to take any action with respect to Submissions that we deem necessary or appropriate in our discretion.

In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, comment, or other content, if any. You represent and warrant that you own or otherwise control all of the rights to the Submissions that you post on this Site and that use of your Submissions, including reviews and comments by us, will not infringe upon or violate the rights of any third party. We may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.

INTELLECTUAL PROPERTY

All text, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to Big Train, Inc., or its affiliates. The collection, arrangement, and assembly of all Content on this Site (the "Compilation") belongs exclusively to Big Train, Inc. or its affiliates. All software used on this Site (the "Software") is the property of Big Train, Inc., its affiliates or its Software suppliers. The Content, the Compilation and the Software are all protected by U.S. and international copyright laws. BIGTRAIN.COM, BIG TRAIN, the BIG TRAIN logo, FIT FRAPPE, ONTRACK REWARDS, EXTRAORDINARY BEVERAGES and other logos, slogans, trade names or words are registered trademarks, trademarks or service marks of Big Train, Inc., its affiliates, suppliers, or third parties. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.

PRIVACY POLICY

Please review our Privacy Policy, which also governs your visit to this Site, to understand our practices.

RISK OF LOSS; OTHER TERMS OF SALE

Risk of loss and title for items purchased by you passes to you upon delivery of the items to the carrier pursuant to our standard terms of sale. All purchases through the Site or as a result of visits made by you to the Site are governed by our standard terms of sale.

TERMINATION AND EFFECT OF TERMINATION

In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Agreement or revoke any or all of your rights granted under these Terms of Use. Upon any termination of these Terms of Use, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of these Terms of Use shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.

INTERNATIONAL ACCESS

This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.

DISCLAIMER AND LIMITATION OF LIABILITY

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT. EXCEPT AS OTHERWISE PROVIDED IN THE STANDARD TERMS OF SALE THAT GOVERN THE SALE OF EACH PRODUCT ON THIS SITE, THIS SITE, THE PRODUCTS OFFERED FOR SALE ON IT AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED BY US ON AN "AS IS", “AS AVAILABLE’ BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE OR PURCHASED THROUGH THE SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, COMPLETENESS, RELIABILITY, DATA ACCURACY, AVAILABILITY OF THE SITE, SECURITY, AND SYSTEM INTEGRATION. THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR INABILITY TO USE THE SITE, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES (REGARDLESS OF THE FOUNDATION FOR THE ACTION) INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US DURING THE MONTH IMMEDIATELY PRECEDING THE ACT ALLEGEDLY GIVING RISE TO OUR LIABILITY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

TYPOGRAPHICAL ERRORS

In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit card account in the amount of the charge.

LINKS

This Site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site. If you decide to access any of the third party Sites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such Sites.

REMEDIES

You agree as it relates to our remedy at law for any actual or threatened breach of these Terms of Use that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.

No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver and any failure to assert a right under these Terms of Use shall not constitute a waiver of such right or provision.

APPLICABLE LAW

This Site is created and controlled by us in the State of California, USA. As such, the laws of the State of California will govern all matters relating to the Site and these Terms of Use and any dispute or claim arising therefrom or related thereto, without giving effect to any principles of conflicts of laws.

DISPUTES

Any dispute relating in any way to your visit to the Site or to the products you purchase through the Site shall be submitted to confidential arbitration in Orange County, California, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of California. Arbitration under these Terms of Use shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use shall be joined to an arbitration involving any other party subject to these Terms of Use, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Site or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever banned.

SEVERABILITY

If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining provision.

CHANGES TO THE SITE OR TERMS OF USE

We reserve the right to withdraw or amend the Site and any services we provide through the Site, in our sole discretion, without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter. However, any changes to the dispute resolution provisions set forth in Applicable Law and/or Disputes will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Site. Your continued use of the Site following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page each time you access this Site so you are aware of any changes, as they are binding on you.

OUR ADDRESS

Please send any questions or comments regarding this Site to: Big Train, Inc. 25392 Commercentre Lake Forest, CA 92630

Go to the Homepage http://www.bigtrain.com

Have questions? The Big Train Customer Service Team is happy to help.

Call us at 800 BIG TRAIN (244-8724).

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