PLEASE READ THESE TERMS AND CONDITIONS OF USE
CAREFULLY BEFORE USING THIS SITE
Welcome to our website! By using this website (the “Smart Balance Site” or the “Site”), you are deemed to agree to the terms set forth below as of the date of such use. If you do not want to be subject to these terms, do not use the Site. We may periodically change these Terms and Conditions of Use by updating this posting so please visit this area each time you visit the Site to keep up to date with the current terms regarding your use of the Site. Your continued use of the Site reaffirms your continuing agreement to the then-current Terms and Conditions of Use. These Terms and Conditions of Use were last updated on June 3, 2010.
WE WILL MAKE A REASONABLE EFFORT TO PROVIDE ACCURATE AND TIMELY INFORMATION ABOUT BOULDER BRANDS, INC., GFA BRANDS, INC. AND SMART BALANCE® PRODUCTS ON THIS SITE; HOWEVER, YOU SHOULD NOT ASSUME THAT THE INFORMATION PROVIDED HERE IS ALWAYS UP TO DATE OR THAT THIS SITE CONTAINS ALL RELEVANT INFORMATION AVAILABLE. IF YOU ARE MAKING A DIET, HEALTH OR OTHER IMPORTANT PERSONAL DECISION, PLEASE CONSULT OTHER APPROPRIATE SOURCES, INCLUDING NUTRITIONISTS, DIETITIANS, PHYSICIANS OR OTHER MEDICAL PROVIDERS.
Boulder Brands, Inc. and its operating subsidiary, GFA Brands, Inc. (together, “we,” “us,” “our,” or “Smart Balance”) may, at any time, modify or discontinue this Site or specific portions of it.
Site Content and Intellectual Property
The trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) displayed on this Site are the registered and/or unregistered Trademarks of Smart Balance, or such third parties that may own the displayed Trademarks. The contents of the Smart Balance Site, such as Trademarks, copyrighted materials, such as text, graphics, images, information created or obtained from Smart Balance’s licensors, and other material contained on the Site (“Content”) are for informational purposes only. Nothing contained on this Site or in the Terms and Conditions serves to grant to you, by implication or otherwise, any license or right to use any Content displayed on this Site without the written permission of Smart Balance or such third party that may own the displayed Content.
Medical Information or Advice
This Site does not provide or offer medical advice. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Smart Balance Site.
You should always consult with your physician prior to changing or undertaking any new diet or exercise program or using any health-related information and consult with a trainer before using new gym equipment. Contact your health-care provider immediately if you suspect that you have a medical problem. If you think you may have a medical emergency, call your doctor or 911 immediately.
RELIANCE ON ANY INFORMATION PROVIDED BY SMART BALANCE, SMART BALANCE EMPLOYEES OR CONSULTANTS, OR OTHERS APPEARING ON THE SITE AT THE INVITATION OF SMART BALANCE, OR OTHER VISITORS TO THE SITE IS SOLELY AT YOUR OWN RISK. Information and statements on this Site have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease or health condition.
Cautionary Statement Pursuant to the Private Securities Litigation Reform Act of 1995
Smart Balance is not providing investment advice through this Site, and the material on the Site should not be regarded as an offer to sell, or a solicitation of an offer to buy, any securities of Boulder Brands, Inc. Statements of Smart Balance regarding sales growth, earnings performance and similar financial and operating measures found in the press releases, interviews, presentations, SEC reports, and other materials found on this site constitute “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995. Such statements are based on the currently available operating, financial and competitive information as of the date of such statements and are subject to various risks and uncertainties that could cause actual results to differ materially from Smart Balance’s historical experience and its stated expectations. These risks and uncertainties include, but are not limited to, general business conditions, the impact of competition, fluctuations in and the overall condition of the U.S. economy, stability of costs and availability of commodities, Smart Balance’s ability to attract, train and retain highly-qualified team members, unanticipated weather conditions, the impact of competition and regulatory and litigation matters, and other factors which are often beyond the control of Smart Balance. Undue reliance should not be placed on such forward-looking statements, as such statements speak only as of the date on which they are made. Additional information regarding these and other risks is contained in Boulder Brands, Inc.’s periodic filings with the Securities and Exchange Commission.
Use of Content
Smart Balance authorizes you to view or download a single copy of the material on the Smart Balance Site solely for your personal, noncommercial use if you include the following copyright notice: “Copyright ©2010, GFA Brands, Inc. All rights reserved.” and other copyright and proprietary rights notices that are contained in the Content. Any special rules for the use of certain software and other items accessible on the Smart Balance Site may be included elsewhere within the Site and are incorporated into these Terms and Conditions of Use by reference.
The Content is protected by copyright under both United States and foreign laws. Title to the Content remains with Smart Balance or its licensors. Any use of the Content not expressly permitted by these Terms and Conditions of Use is a breach of these Terms and Conditions of Use and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice. All rights not expressly granted herein are reserved to Smart Balance and its licensors.
If you violate any of these Terms and Conditions of Use, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
Limitation of Liability
THE USE OF THE SMART BALANCE SITE AND THE CONTENT IS AT YOUR OWN RISK. SMART BALANCE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT. THIS SITE AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THIS SITE, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SMART BALANCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMART BALANCE DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMART BALANCE DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY IN SUCH SITUATIONS.
IN NO EVENT SHALL SMART BALANCE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF SMART BALANCE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THIS SITE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. However, in no event shall Smart Balance’s total liability to you for damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence, or otherwise)) exceed $1,000. Any claims arising in connection with your use of the Site, any Content, or the Forums (defined below) must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms and Conditions of Use are exclusive and are limited to those expressly provided for in these Terms and Conditions of Use.
You agree to indemnify, defend, and hold harmless Boulder Brands, Inc., GFA Brands, Inc., and their officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees and court costs, resulting from any violation of these Terms and Conditions of Use or any activity related to your Internet account (including, but not limited to, negligent or wrongful conduct) or any other person accessing the Site using your Internet account.
User Generated Content
User Generated Content Guidelines
User Generated Content (including email communications between users) must be appropriate for the Forum. Smart Balance may reject any User Generated Content for any reason, including without limitation for the reasons listed below. You agree not to upload any User Generated Content or send messages to other users (including Members) that:
attacks the character or damages the reputation of other users, name-calls, insults, ridicules, mocks, electronically stalks or otherwise harasses another user;
contains material or language that is profane, pornographic, sexually graphic, ethnically offensive, “off color”, political, or propaganda;
contains crude, vulgar or offensive images or nudity;
infringes or violates any party’s intellectual property rights, including, but not limited to, using third-party copyrighted materials or the names or likenesses of others without appropriate permission and attribution, using third-party trademarks without appropriate permission or attribution, and using or distributing third-party information (whether or not protected as a trade secret) in violation of a duty of confidentiality;
has been broadcasted, streamed, published or televised in any form of media, including television, print media, and movies;
contains any advertising, promotional materials, chain letters, spam, junk mail, or any other type of unsolicited mass email to people or entities that have not agreed to be part of such mailings;
uses any Forum to buy or solicit any goods, services, or money to advertise or sell products or services of others;
depicts or describes any activities that would violate the personal privacy rights of others, including, but not limited to, collecting and distributing information about other users without their permission, except as permitted by applicable law;
impersonates any person or entity; falsely states or otherwise misrepresents an affiliation with any person or entity; intentionally omits, deletes, forges, or misrepresents transmission information, including headers, return mailing, and Internet protocol addresses; or otherwise manipulates identifiers to disguise the origin of any User Generated Content transmitted to the Forum;
contains any worms, viruses, or other harmful, disruptive, or destructive files, code, or programs;
interferes with, disrupts, or harms in any way the Site, servers or networks connected to the Site;
uses the Site for any illegal purpose, or violates any applicable local, state, national, foreign or international law or regulation, intentionally or unintentionally;
promotes drugs or alcohol, illegal or inappropriate activities or dangerous behavior that may result in harm;
posts on behalf of a banned user;
Smart Balance otherwise determines to be inappropriate for the Site or inconsistent with Smart Balance’s image and reputation.
You agree that your taking of any of the foregoing prohibited actions shall constitute a material breach of these Terms and Conditions of Use. Smart Balance reserves the right (but is not obligated) to do any or all of the following in its sole discretion:
Investigate an allegation that a communications does not conform to the terms of this section and determine in its sole discretion to remove or request the removal of the communication;
Remove communications which are abusive, illegal, or disruptive, or that otherwise fail to conform with these Terms and Conditions of Use;
Terminate a user’s access to any or all Forums and/or the Smart Balance Site upon any breach of these Terms and Conditions of Use;
Monitor, edit, or disclose any communication in the Forums; and
Edit or delete any communication posted on the Smart Balance Site, regardless of whether such communication violates these standards.
Smart Balance has no liability or responsibility to users of the Smart Balance Site or any other person or entity for performance or nonperformance of the aforementioned activities.
Additional Email and Electronic Messaging Rules
If you communicate directly with another through the Site or are supplied with another user’s email address in connection with your use of the Site and/or its social networking functionality, you agree not to transmit “spam” or other unwanted solicitations, or any material that is harassing, threatening, racially offensive, obscene, abusive, harmful, defamatory, invasive of another’s privacy, infringing of another’s intellectual property rights, or illegal. Smart Balance is not responsible for the content of email messages sent by its Site users or from a third party.
User Generated Content Submissions/Grant of Rights
In order to submit User Generated Content, you must be a legal resident of the 50 United States or the District of Columbia who is of legal age of majority in your jurisdiction of residence (and at least 18 years of age).
By submitting User Generated Content for posting, you agree that you have read and are familiar with the Guidelines. By submitting User Generated Content for posting at a Forum, you also: (1) represent and warrant to Smart Balance that you have obtained all necessary licenses, consents, waivers, releases, authorizations and/or permissions to post or transmit User Generated Content; (2) represent and warrant that the User Generated Content does not constitute confidential information and is free of any claims of proprietary or personal rights and if your User Generated Content contains photographs or digital or video images that depict a child that is under the age of majority in their state of residence, you represent that you have written permission from the child’s parent or guardian to provide the photo, digital, or video image; (3) agree that you are solely responsible for all User Generated Content that you submit for posting; (4) agree that such User Generated Content is original with you and accurate and that you own all right, title and interest in the User Generated Content and any elements you include in the User Generated Content, such as photographs, video footage, music tracks and the like (you may be required to provide documentation in a form acceptable to Smart Balance evidencing such rights); and (5) grant to Smart Balance and its affiliated entities an irrevocable, worldwide, nonexclusive, perpetual, fully sub-licensable, transferable, royalty-free right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, publicly perform, and publicly display such User Generated Content (in whole or part) and/or to incorporate it (in whole or in part) in other works in any form, media, or technology now known or later developed, for any purpose, including advertising and promotional purposes by Smart Balance and its affiliated entities, without compensation, notification, approval or any other obligation, to anyone, including yourself. Furthermore, Smart Balance is free to use any ideas, concepts, know-how, or techniques contained in or derived from any User Generated Content for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information, without compensation, notification, approval or any other obligation, to anyone, including yourself. You will not have any claim against Smart Balance with respect to any use or non-use of User Generated Content, and to the extent a claim is made against Smart Balance or any of its affiliated entities by any third party with respect to User Generated Content, you agree to indemnify and hold Smart Balance and its affiliated entities harmless with respect to any such claims, including, without limitation, attorneys’ costs and expenses incurred in connection therewith.
When you submit User Generated Content for posting at a Forum, you understand that Smart Balance will have the right, but not the obligation, to use, display and publish your name, photograph, likeness, voice, performance, biographical information and/or statements, throughout the world in perpetuity in any media that now exists or may exist in the future, including for advertising and promotional purposes by Smart Balance and its affiliated entities. If Smart Balance makes use of any of the foregoing rights, you understand and agree that you shall not receive any other consideration, payment, notification or credit, nor will you have any approval over how Smart Balance uses the foregoing rights.
Responsibility for Forums, User Generated Content and Users
You acknowledge that Forums contain the opinions and views of other users. You acknowledge further that Smart Balance is not responsible for the accuracy of any User Generated Content on the Site. You understand and agree that all User Generated Content is the sole responsibility of the person with whom the User Generated Content originated. You understand and agree that you will evaluate, and bear all risks associated with, the use of any User Generated Content, including any reliance on the accuracy, completeness, or usefulness of such User Generated Content.
You acknowledge and agree that, beyond providing and facilitating the Forums, Smart Balance has no control over or oversight of, and will not participate or otherwise be involved in, your dealings with any other users. Any outside communications, transactions or other dealings that you may have or enter into with any other user of the Forums are solely between you and such other user.
Violations of the Guidelines
If you violate the Guidelines, your actions may result in a warning, suspension, or permanent banning from participation in Forums. The decision to restrict access to the Forums is made at Smart Balance’s sole discretion. We reserve the right to restrict access to the Forums and the Site from any user at any time for any reason, with or without warning. If you see a message you believe violates the Guidelines please contact us at firstname.lastname@example.org.
Smart Balance’s Rights
You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or mobile device. If you disclose your password to anyone or share your account with other people, you take full responsibility for their actions. Users of public or shared computers or unprotected mobile devices should log out at the completion of each visit to the Site.
Advertisements, Searches, and Links to Other Sites
The Site may provide links or references to other websites (“Third Party Site(s)”), but we have no responsibility for such Third Party Sites and shall not be liable for any damages or injury arising from your use of any Third Party Site. Any links to any Third Party Sites are provided solely as a convenience to you and should not be construed as an endorsement by Smart Balance of content, items, or services available on those Third Party Sites. Your access and use of such Third Party Sites, including the content, items, or services available on those Third Party Sites, is solely at your own risk. Smart Balance makes no representations or warranties with respect to the content, ownership, or legality of any such Third Party Sites. You agree that we have no responsibility or liability for the availability of any Third Party Site, or for the content, advertising, products, or other materials available through such Third Party Sites. Smart Balance also may select certain sites as priority responses to search terms you enter and Smart Balance may agree to allow advertisers to respond to certain search terms with advertisements or sponsored content.
Smart Balance may occasionally provide contests, sweepstakes, games and other Smart Balance or third party promotions to its users. The rules, regulations and procedures governing any of the foregoing promotions shall be accessible through a hyperlink displayed on the web page where the applicable promotion is located. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures, all of which are hereby incorporated by reference into these Terms and Conditions of Use. Please remember to read the rules carefully before participating.
Smart Balance is based in Paramus, New Jersey, in the United States of America. Smart Balance makes no claims that the Site or the Content are appropriate or may be downloaded outside of the United States. Access to the Content may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
The following provisions survive the expiration or termination of this Agreement for any reason whatsoever: Limitation of Liability, Indemnification, User Generated Content; User Generated Content Guidelines; User Generated Content Submissions/Grant of Rights; Applicable Law; Jurisdiction; Severability, and Complete Agreement.
Applicable Law; Jurisdiction; Severability
These Terms and Conditions of Use and any disputes arising under or related to these Terms and Conditions of Use (whether for breach of contract, tortious conduct or otherwise) will be governed by the laws of the State of New Jersey, without reference to its conflicts of law principles. Any legal actions, suits or proceedings arising out of these Terms and Conditions of Use (whether for breach of contract, tortious conduct or otherwise) will be brought exclusively in the state courts of New Jersey or the United States District Court for the District of New Jersey, and you hereby accept and submit to the personal jurisdiction of these New Jersey courts with respect to any legal actions, suits or proceedings arising out of these Terms and Conditions of Use. You also waive to the fullest extent permitted by law any right to a trial by jury in any action, suit or proceeding brought to enforce, defend or interpret any right or remedies under, or arising in connection with or relating to, these Terms and Conditions of Use. If any provision of these Terms and Conditions of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions of Use, which shall remain in full force and effect. No waiver of any of these Terms and Conditions of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition. If you use the Site from a location outside of the United States, you are solely responsible for compliance with any applicable local laws. You may not use or export the materials on the Site in violation of U.S. export laws and regulations.
Digital Millennium Copyright Act (DMCA) Infringement Notification
If you believe that any of the materials on our Site infringe your copyright, whether User Generated Content or otherwise, you should notify us of your copyright infringement claim in accordance with the procedures described below. We will process claims of alleged infringement and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws. Any claimed copyright infringement notifications should be sent to our designated agent:
900 South Wolfe Street
Baltimore, MD 21231
To be effective, the notification must be in writing and contain the following information (see DMCA, 17 U.S.C. § 512(c)(3) for further details):
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement, made under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In an effort to protect the rights of copyright owners, Smart Balance maintains the right to terminate, in appropriate circumstances, subscribers and account holders of the Site who are repeat infringers.
Complete Agreement; Headings
Unsolicited Idea Submission Policy
Please be advised that GFA Brands, Inc. and Boulder Brands, Inc. and their affiliates (collectively, the “Company,” “we,” “us” or “our”) and our employees do NOT accept or consider unsolicited ideas or materials, including ideas for new technologies, new or enhanced products, formulas, new methods of production, process enhancements, promotions, marketing, advertising, names or business plans, in any form. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“submissions”) in any form to the Company or any of its employees. You acknowledge and agree that the Company at all times has many products and projects in various stages of development, and that the results of these endeavors may be similar or identical to your own products or projects. The purpose of this policy is to avoid potential misunderstandings or disputed when the Company’s products, processes, technologies, methods or the like, might seem similar to ideas submitted to the Company. If, despite our policy and our request that you not send us your ideas, you still submit them, then regardless of what your letter or submittal says, the following terms shall apply to your submissions.
You agree and warrant that: (1) your submissions and their contents will automatically become the property of the Company without compensation of any kind to you and you agree to sign any assignment or transfer documents upon request that may be necessary under applicable law to achieve the foregoing; (2) the Company may use or redistribute the submissions or their contents in perpetuity, throughout the Universe, for any purpose, commercial or otherwise, and in any way it chooses without compensation of any kind to you; (3) there is no obligation for the Company to review the submissions; (4) there is no obligation that the Company keep your submissions confidential; and (5) your submissions do not contain trade secrets or proprietary information owned by another.
Please note that only an officer of the Company may amend, alter, or waive the terms and conditions set forth above, which must be evidenced in writing. Any questions or inquires about this policy should be directed, in writing, to the Company’s legal counsel.
We do, however, welcome your feedback regarding many areas of the Company’s existing business. Please provide only specific feedback on the Company’s existing products or marketing strategies; but please do not include any ideas that the Company’s policy will not permit it to accept or consider. It’s just one more way that the Company can learn how to best satisfy your needs.