READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE OR USING ANY OF ITS FUNCTIONALITY. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE OR OUR SERVICES IF YOU DO NOT ACCEPT THESE TERMS.
INFORMATION, STATEMENTS AND REVIEWS FROM ONLINE CUSTOMERS REGARDING PRODUCTS HAVE NOT BEEN APPROVED OR EVALUATED BY DELIVERY NATIVE, THE UNITED STATES FOOD AND DRUG ADMINISTRATION, OR THE UNITED STATES DEPARTMENT OF AGRICULTURE. RESULTS, IMPRESSIONS AND SATISFACTION MAY VARY FROM PERSON TO PERSON AND MAY BE INACCURATE OR INCORRECT. DELIVERY NATIVE ASSUMES NO OWNERSHIP, ACCEPTANCE OR LIABILITY RELATING TO SUCH STATEMENTS. Delivery Native may modify, suspend, or discontinue any part or all of our Sites or our services at any time and without notifying you. We also reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by updating the “Last Updated” date at the end of these Terms and, if you are a customer of our service, you will be required to accept the new Terms. By continuing to access or use the Sites or order, receive or use products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the products.
In these Terms we are granting you a limited, personal, non-exclusive and non-transferable license to use and to display the Sites and to use the services available through the Site; your right to use such Sites and services is conditioned on your compliance with these Terms. You have no other rights to the Sites, services, and/or any of the materials displayed or made available through the Sites and services, and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of this Sites or portions thereof in any manner.
A breach or violation of any of the Terms will result in an immediate termination of your account and associated services.
SECTION 1 – USING THE SITES
These Terms are not designed for persons 18 years and younger. By using any Site, you represent that you are at least the age of 18 or a majority in your state or province of residence, or if you are under the age of majority in your state or province of residence (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and you have received your parent’s or legal guardian’s permission to use the Site and agree to these Terms. If you are a parent or legal guardian of a Minor, you agree to bind the Minor to these Terms and to fully indemnify and hold us harmless if the Minor breaches any of these Terms. If you choose to register on our Site, you may set up an account which will require the establishment and use of passwords and user IDs to allow you to protect your account information from unauthorized access. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of the Sites as well as paying related charges. It is also your responsibility to maintain the confidentiality of your account password. Should you believe your password or security for your account has been breached in any way, you must immediately notify us.
By creating a Scratch Kitchen account, you also consent to receive electronic communications from Delivery Native (e.g., via email). These communications may include notices about your account and are part of your relationship with us. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
By providing your mobile phone number to us through the site or in connection with your order, receipt or use of our service, you consent to receive calls or text messages at any such phone number sent by or on behalf of Delivery Native, including autodialed calls and/or text messages, for marketing, promotional, operational or transactional purposes, such as updates on the delivery status of your order or customization reminders. You may opt out of marketing and promotional calls or messages by responding to the text message with “STOP” or reaching out to our Customer Care team. To reach out, submit a completed form on our Contact page https://www.scratchkitchen.com/contact/ and a Customer Care Associate will respond to your query. Following such opt-out, you may continue to receive calls or messages for a short period of time while Delivery Native processes your request. It is your responsibility to keep your account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. Delivery Native is not liable for any delays or failures in receiving any SMS messages. Delivery is subject to effective transmission from your network operator and processing by your mobile device. Please contact your mobile phone carrier for details.
SECTION 2 – PAYMENT AND BILLING INFORMATION
You agree to pay the price applicable for all products you order and you agree to pay all applicable fees, including but not limited to delivery fees and taxes related to your use of our Sites and services. We may suspend or terminate your account and/or access to our services if your payment is late and/or your credit card cannot be processed. By providing a credit or debit card, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Order will not be processed.
All promotions, trials, credits, coupons, and discounts for free or discounted Orders are only allowed to be used once per person and may not be combined unless otherwise indicated in a promotional offer.
SECTION 3- PRICING AND AVAILABILITY
When you create and submit an Order, you are agreeing to pay the total cost of the order, including applicable taxes and delivery fees. We reserve the right, at any time, to modify, suspend, or discontinue the sale of any product with or without notice.The total amount charged for your Order includes the price of the individual menu items and convenience items, plus any fees for modifications, delivery fees, other fees, and any applicable taxes.
Although we make every effort to maintain the accuracy of information maintained on our Sites, including pricing information and product details, occasionally pricing or other information errors may occur. In the event that any product is listed at an incorrect price or with other incorrect information, we reserve the right to decline or cancel any such Orders, whether or not the order has been confirmed and/or your credit card charged.
SECTION 4 – DELIVERIES
You are responsible for inspecting your Order for any damage or other issues upon delivery. Deliveries are intended to be consumed immediately. You are responsible for properly storing all items you receive. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. In cases in which you have designated an alternative receiver, such person shall accept the products under all of the same terms and conditions that would apply had you accepted the delivery yourself. If no one is present to receive the delivery, your Order will not be delivered. If you do not receive your Order, if you are missing items, or if you are not completely satisfied with your Order, please contact our Customer Care team within 24 hours. To contact, submit a completed form on our Contact page https://www.scratchkitchen.com/contact/ and a Customer Care Associate will respond to your query to resolve the issue. Consumer inquiries and complaints will be handled on a case by case basis
We are not responsible for (i) items delivered to incorrect addresses supplied during ordering; (ii) delivery issues arising from the recipient not being present at the time of delivery at the address supplied during ordering; (iii) decreased product quality due to an incorrect delivery address supplied during ordering, or a re-route requested by the recipient; (iv) product quality problems caused by improper handling by the recipient.
SECTION 5 – PRODUCT DESCRIPTIONS
Delivery Native attempts to be as accurate as possible with all of our product descriptions. However, Delivery Native does not warrant that product descriptions, photos, or other content of any product is accurate, complete, reliable, current, or error-free. The products delivered may vary from the images and descriptions viewed on the site due to a number of factors, many of which are not within our control, including without limitation, system capabilities and constraints of your computer, manufacturing process issues, and the availability and variability of product, packaging, and raw materials. Although we will exercise commercially reasonable efforts to help ensure that the products conform to reasonable expectations, variations may sometimes occur. If a product offered by Delivery Native itself is not as described, your sole remedy is to receive a credit or refund for the product.
SECTION 6 – RETURNS, REPLACEMENTS, CREDITS, AND REFUNDS
If you are dissatisfied with any product, please reach out to our Customer Care team. To reach out, submit a completed form on our Contact page .https://www.scratchkitchen.com/contact/ and a Customer Care Associate will respond to your query and, depending on the circumstances, we will provide you a replacement, a full or partial refund of the purchase price for that Order or product, or a full or partial credit of the purchase price for that Order or product. We may require the return or photographic documentation of any product with which you are dissatisfied before we provide you a replacement, credit, or refund.
Delivery Native reserves the right to refuse service, refuse distribution of credits or refunds, terminate accounts, terminate your rights to use Delivery Native, or cancel orders in its sole discretion.
Once processed, please allow the refund amount to appear in your account after 5-10 business days.
SECTION 6.1 - Credits
Credits given may be for an item’s full or partial purchase price, for a delivery fee, or for some other amount determined by Delivery Native in its discretion. Delivery Native may occasionally provide you with Credits to thank you for your patience with a delayed delivery or to address a customer service issue. The issuance of such Credits and any Credit amounts are determined at the sole discretion of Delivery Native. Delivery Native may occasionally provide promotions, offers, and other communications, and Credits may be earned through these special offers communicated to you by Delivery Native or its agents (each an “Offer”). Once you meet the criteria described in any Offer, you are eligible for the advertised Credits, under these Terms and any additional terms and conditions of each Offer. If there is a conflict between these Terms and the terms and conditions of any Offer, the Offer terms and conditions will control. Offers are not transferable. Offers may not be made available to all users.
Unless communicated to you otherwise by Delivery Native, you will have the option to apply Credits to your next Order when prompted to do so at the time of checkout. Certain Credits may not automatically be applied to your next Order and will require additional action on your part (e.g., application of a coupon code) in order to be applied to future purchases, which further requirements for applying Credits shall be communicated to you at the time of Credit issuance. Credits may not be applied to and/or redeemed for gift cards, taxes, fees, and for certain product and/or service categories as determined by Delivery Native in its sole discretion.
Credits can be applied for up to three months, or such other time extended by Delivery Native after date of issuance and thereafter, Credits will automatically expire. All Credits are promotional in nature, are not transferable, and are not redeemable for cash or other property. Credits may not be applied toward payment of any outstanding account balances or previous purchases. Once a Credit is redeemed, it will not be refundable or reinstated for any reason, including without limitation in connection with returned or exchanged purchases that were made with Credits.
Available Credits are displayed upon checkout. If you would like to inquire about available credits in your account you can reach out to our Customer Care team by emailing email@example.com. A valid account is required to check Credits.If any Credits are believed to have been sold, exchanged, or obtained fraudulently, those Credits will be void and will not be honored. At any time and in Delivery Native’s sole discretion (including where a user was not eligible to earn certain Credits according to these Terms), Delivery Native may correct the amount of Credits shown as credited to an Account.
If for some reason you believe that there is a discrepancy regarding your Credit balance, please submit a request on the Contact page https://www.scratchkitchen.com/contact/ and a customer care associate will respond to your query. All decisions regarding your Credit balance will be determined in our sole discretion and are final.
Delivery Native may change the Credits program, associated Credits, and these Terms at any time, for any reason and without notice. Delivery Native may make changes that affect, without limitation, processes, benefits, levels, and rules for receiving and using Credits, availability of Credits, Credit types, availability of Offers, and any other related benefits. Delivery Native may terminate the Credits program with one month’s advance notice to active users. If the Credits program is terminated, upon termination, all unredeemed Credits will be forfeited without any obligation or liability, and Credits claims will no longer be honored. Delivery Native may terminate the Credits program in whole or in part, in any jurisdiction, on less than one month's notice if required to do so by applicable law, as determined by Delivery Native in its reasonable discretion. All Credits program benefits, offers, and services are subject to availability and may be changed at any time without notice.
SECTION 7 - UNAUTHORIZED ACTIVITIES
Any other use of our Sites or services beyond uses permitted in these Terms is prohibited and, therefore, constitutes an unauthorized use. This is because as between you and Delivery Native, all rights in and to our Sites and services remain our property.
Unauthorized use may result in violation of various United States and international copyright laws. Unless you have written permission from us stating otherwise, you are not authorized to use our Sites or services in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
- For any public or commercial purpose which includes use of our Site on another site; to advertise or promote a product, service, or company;
- In a manner that modifies, publicly displays, publicly performs, reproduces, or distributes any of our Site content or materials;
- In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
- To stalk, harass, or harm another individual;
- To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
- To interfere with or disrupt our Site or any servers or networks connected to this Site;
- To access or use the Site or our services to collect any market research for a competing business;
- To use any data mining, robots, or similar data gathering or extraction methods in connection with the Site; or
- Attempt to gain unauthorized access to any portion of this Site or any other accounts, computer systems, or networks connected to this Site, whether through hacking, password mining, or any other means.
SECTION 8 - PROPRIETARY RIGHTS
The trademarks, service marks, and logos (collectively “Trademarks”) used and displayed on our various platforms are registered and unregistered trademarks or service marks of Delivery Native and/or our licensors. Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing.
All goodwill generated from the use of the Trademarks inures to our benefit and/or the benefit of our licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
SECTION 9 - INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Delivery Native, Inc. and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 10 – DISCLAIMERS
THIS SITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE IS WITH YOU.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER HANDLING, STORAGE, USE, AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US.
TO THE EXTENT THAT THE PRODUCTS CONTAIN ALLERGENS, SUCH ALLERGENS ARE IDENTIFIED ACCORDINGLY ON OUR SITE (https://www.scratchkitchen.com/nutritionals/). HOWEVER, OUR PRODUCTS ARE NOT MADE IN AN ALLERGEN FREE FACILITY AND THERE MAY BE A POTENTIAL FOR CROSS CONTAMINATION WITH OTHER PRODUCTS THAT ARE NOT ALLERGEN FREE.
DELIVERY NATIVE IS NOT RESPONSIBLE FOR YOUR ACTIONS AFTER YOUR ORDER HAS BEEN DELIVERED TO THE PROVIDED ADDRESS. ALL OUR PRODUCTS SHOULD BE RECEIVED, CONSUMED, AND STORED AS RECOMMENDED HEREIN. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, USING, OR CONSUMING SUCH PRODUCTS. YOU, AND NOT DELIVERY NATIVE, ARE SOLELY RESPONSIBLE FOR ADVISING ANY NON-ACCOUNT HOLDERS AND/OR NON-ORDERING PARTIES AS TO THE SAFETY REQUIREMENTS AND ANY POTENTIAL ALLERGENS IN THE PRODUCTS.
Any information provided by us on the Site regarding the products or otherwise (e.g., product descriptions, promotional videos, or blog posts) is for informational purposes only and, as our products are always changing based on the availability of produce that meets our standards, may not necessarily be applicable to the products you purchase.
Without limiting the generality of the foregoing, we make no warranty that our products or this Website will meet your requirements or that this Site will be uninterrupted, timely, secure, or error free or that defects in this Site will be corrected. We make no warranty as to the results that may be obtained from the use of this Site or as to the accuracy or reliability of any information obtained through this Site. No advice or information, whether oral or written, obtained by you through this Site or from us or our subsidiaries/other affiliated companies shall create any warranty.
SECTION 11 - LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DELIVERY NATIVE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM DELIVERY NATIVE OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF DELIVERY NATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF DELIVERY NATIVE ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM DELIVERY NATIVE EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE DELIVERY NATIVE’S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
SECTION 12 - DISPUTE RESOLUTION, ARBITRATION;
CLASS ACTION WAIVER (the “Provision”)
Please read the following carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and the Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, the “Company” means Delivery Native and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding, arising out of or relating to any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Delivery Native, Inc., 2299 Pearl Street, Suite 300, Boulder, CO 80302 , Attention: Data Protection Officer or contacting us at email@example.com That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Delivery Native, Inc., 2299 Pearl Street, Suite 300, Boulder, CO 80302 , Attention: Customer Service Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or the Company may initiate arbitration in either Boulder, CO
Payment of Arbitration Fees and Costs – The Company will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and the Company specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into these Terms you and the Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
SECTION 14 - LINKS TO THIRD-PARTY SITES
We sometimes provide links on our Sites to third-party websites. If you use these links, you will leave our Site. We are not obligated to review any third-party websites that you link to from this Site, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Therefore, expressly stated on our Site, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from one of our Sites, you do so entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of our Sites may allow you to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit your activities on our Sites to be shared with your contacts in your third-party site account.
SECTION 15 - LOCAL LAWS; EXPORT CONTROL
We control and operate this Website from our headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If you use this Website outside the United States of America, you are solely responsible for following applicable local laws.
SECTION 16 – FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to us, whether by letter, email, telephone, or otherwise (collectively “Feedback”), suggesting or recommending changes to the Sites or services, including new features or functionality relating to the services, all Feedback is and will be treated as non-confidential and non-proprietary. You assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using the Feedback. Where the above assignment is prohibited by law, you grant us an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree that we are not obligated to use, display, reproduce, or distribute any ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel our use, display, reproduction, or distribution.
SECTION 17 - GENERAL
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
In the event that 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, such determination shall not affect the validity and enforceability of any other remaining provisions.
These Terms and any policies or operating rules posted by us on this Site constitutes the entire agreement and understanding between you and us and govern your use of the Site and our services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
Colorado state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Any disputes relating to these Terms or this Website will be heard in the courts located in Boulder, Colorado, USA.
SECTION 19 - CONTACT US
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at firstname.lastname@example.org.