Terms of Service
Effective Date: 08/12/2021
Welcome to the Blue Yonder Brands, Inc. (“Blue Yonder Brands” or “BYB”) website at https://www.drinkwaju.com/. This website is operated by Blue Yonder Brands. Throughout the site, the terms “we”, “us” and “our” refer to Blue Yonder Brands. Blue Yonder Brands offers this website, including all information, content, functionality and services offered on or through such site (collectively, the “Service”), to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. Please read them carefully. These Terms of Service apply to all users of the Service, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content. If you do not agree to all the terms and conditions of these Terms of Service, then you may not access the Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current Service shall also be subject to the Terms of Service.
Our store, an aspect of the Service, is hosted on Shopify, Inc. Shopify provides us with the online e-commerce platform that allows us to sell our products and services to you.
Binding Arbitration. These Terms of Service provide that all disputes between you and us will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Service (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the section below entitled “Dispute Resolution; Arbitration Agreement” for the details regarding your agreement to arbitrate any disputes with us.
SECTION 1 - GENERAL CONDITIONS
The Service is offered and available to users who are eighteen years of age or older. By using the Service, you represent that you are at least the age of majority in your state or province of residence and are of legal age to form a binding contract with us. If you do not meet all of these requirements, you must not access or use the Service.
A breach or violation of any of the Terms will result in an immediate termination of your use of the Service.
We reserve the right to refuse service to anyone for any reason at any time.
You agree not to:
- reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, without express written permission by us;
- use our products for any illegal or unauthorized purpose or use the Service to violate any laws in your jurisdiction or elsewhere (including but not limited to copyright laws);
- use the Service in any manner that could disable, overburden, damage or impair the Service or interfere with any other party's use of the Service;
- use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service;
- transmit any worms or viruses or any code of a destructive nature;
- record, process, harvest, collect, or mine information about other users;
- use the Service to violate the security of any computer network, crack passwords or security encryption codes;
- attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service or the server, computer, or database connected to the Service;
- attack the Service via a denial-of-service attack or a distributed denial-of-service attack; or
- otherwise attempt to interfere with the proper working of the Service.
- The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 2 - OWNERSHIP OF THE SERVICE
You may use the Service for your personal, non-commercial use only. All pages within the Service and any material made available for download are our property, or our licensors or suppliers, as applicable. The Service is protected by United States and international copyright and trademark laws. The contents of the Service, including without limitation the files, documents, text, photographs, images, designs, audio, and video, and any materials accessed through or made available for use or download (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us. You may not frame or utilize framing techniques to enclose or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including, images, designs, text, page layout or form) of ours without our express written consent.
The WAJU name, logos, and all related names, logos, product and service names, designs and slogans are trademarks of BYB. You must not use such marks without the prior written permission of BYB. All other names, logos, product and service names, designs and slogans on the Service are the trademarks of their respective owners.
SECTION 3 - SECURITY RESTRICTIONS; PASSWORDS
You are prohibited from violating or attempting to violate the security of the Service, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Service or any portion thereof without authorization, in violation of these Terms of Service or in violation of applicable law. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
In the event access to the Service or a respective portion thereof is limited by requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as we provide to you or allow. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Service may be revoked by us at any time with or without cause.
SECTION 4 - PRODUCTS OR SERVICES
Certain products or services may be available online through the Service. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's or mobile device’s display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
- A) Subscription; Pricing Information
If you have purchased a WAJU product subscription, your subscription will continue and automatically renew until you cancel the subscription. Your credit card will automatically be charged the subscription price that is provided in the Order summary when you check out. This amount may change. You may cancel your subscription at any time via your account page or by emailing us at firstname.lastname@example.org. BYB reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next billing period following the date of the change. We will give you advance notice of these changes.
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue any product without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of any product or the Service.
- B) Incorrect Pricing Information
While we strive to provide accurate pricing information regarding the products offered through the Service, we cannot insure against pricing errors. In the event a product is listed at an incorrect price due to typographical error, error in pricing information received from third parties, or other error as determined by us in our sole discretion, we reserve the right, in our sole discretion, to not process, cancel or refuse any orders placed for such product listed at the incorrect price, whether or not the order has been confirmed and your credit or debit card (or other payment account approved by us) has been charged. In the event this occurs, we will notify you by email or telephone and will either not charge you or, to the extent your credit or debit card (or other payment account) has already been charged, issue a credit to your credit or debit card (or other payment account) in the amount of the applicable charge within thirty (30) business days.
- C) Accuracy, Completeness and Timeliness of Information
The material on the Service is provided for general information only and should not be relied upon or used as the sole basis for making decisions. Although we attempt to ensure the integrity and accurateness of information displayed on the Service and information that relates to the products we make available through the Service, it is possible that the Service could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Service by third parties. We make no representations, warranties or guarantees as to the correctness or accuracy of such information.
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information related to the Service is inaccurate at any time without prior notice (including after you have submitted your order).
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated. You agree that it is your responsibility to monitor changes to our site.
Any reliance on the material displayed on the Service is at your own risk.
SECTION 5 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made through the Service. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
SECTION 6 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Service is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the Service (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 7 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on our Service may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction.
It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third-party sites linked to or through the Service, you do this entirely at your own risk.
Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 8 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you hereby grant us a worldwide, perpetual, irrevocable, fully paid, royalty-free, non-exclusive license without restriction, to edit, copy, publish, distribute, translate, create derivative works, perform and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 9- PERSONAL INFORMATION
SECTION 10- SMS/MMS MOBILE MESSAGE MARKETING PROGRAM
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 autodialed 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. Message frequency varies.
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 acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that BYB and its service providers will have no liability for failing to honor such requests. 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.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of BYB products. Messages may include checkout reminders.
Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency varies. 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 email@example.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. Carriers are 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 Inc. 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 the State of New York 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.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which BYB’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.
Miscellaneous: 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.
SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
SECTION 12 - PROHIBITED USES
In addition to other prohibitions set forth in these Terms of Service, you are prohibited from using the Service or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 13 - DISCLAIMER OF WARRANTIES
We do not guarantee, represent or warrant that your use of the Service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
You agree that from time to time we may take down and/or remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICE IS AT YOUR SOLE RISK. THE SITE, SERVICE, AND ALL PRODUCTS, DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IN NO CASE SHALL BYB, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, 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 PROCURED THROUGH THE SERVICE, 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. 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. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF BYB TO YOU WITH RESPECT TO YOUR USE OF THE SERVICE OR PURCHASE OF ANY PRODUCTS THROUGH THE SERVICE IS FIVE HUNDRED DOLLARS ($500).
SECTION 14 - DISPUTE RESOLUTION; ARBITRATION AGREEMENT
- Applicability; Exclusions; Court and Jury Trial Waiver. We and you (for purposes of this Section 14 each, a “party” and collectively, the “parties”) agree that any and all covered disputes (as defined below) that either party has the legal right to sue for in court, whether now or in the future shall be subject to final and binding arbitration under the arbitration provisions set forth below. This means that the parties have selected arbitration as the sole and exclusive forum for the parties to sue or be sued in for all covered disputes, regardless of when the dispute first arose or arises and irrespective of the time period(s) involved in the dispute. The term “covered disputes” means all disputes and claims between the parties, including any disputes or claims: arising out of or relating to this agreement; relating to the relationship between the parties, including your use of the Service; arising under the California Consumer Privacy Act (“CCPA”) or any other state, federal, or international law(s) of similar import, and all other claims or disputes under federal, state, and local statutes and laws, municipal ordinances, executive orders, contract, tort, public policy, or common law (judge-made law).
The parties intend to require arbitration of all covered disputes that can lawfully be arbitrated. It is understood by the parties that the term “covered disputes” shall cover and include all such disputes not only between the parties to this arbitration agreement but also all disputes or claims against any of your heirs, executors, personal representatives, and assigns, and all such disputes or claims not only against us but also against any and all of our affiliates, subsidiaries, and parents collectively and its and their predecessors and successors and any of its and their collective officers, agents, employees, members, shareholders, directors, managers, and attorneys.
- Usage of JAMS Streamlined or Comprehensive Arbitration Rules and Procedures; Arbitrator to Decide All Issues; Arbitrator’s Decisions Are Final and Binding. Either party shall initiate arbitration under either the JAMS Streamlined or Comprehensive Arbitration Rules and Procedures (which are currently available for review at www.jamsadr.com under the Rules/Clauses tab). The arbitrator (and not a court) shall decide all issues in any covered dispute including, but not limited to, issues regarding the non-availability of class arbitration, timeliness, scope of arbitrator’s authority, arbitration procedures, any issues regarding arbitrability of the parties’ dispute, statute of limitations, and all other issues regarding the application, interpretation, and implementation of this arbitration agreement. The arbitrator’s decisions shall be final and binding. The parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.
- Selection and Authority of Arbitrator; Full Remedies Available; Enforceability. The parties agree that a single arbitrator shall be selected by the parties consistent with the applicable JAMS Rules and Procedures as they exist at the time of this agreement’s execution. To the fullest extent permitted by law, the arbitrator shall have the power and authority to award any remedy or relief available under applicable law and shall be the sole authority to interpret and apply the provisions of this agreement. The arbitrator shall have the authority to apply any federal, state, local, or municipal law, or executive order, or any common law that the Arbitrator deems applicable to the covered dispute, subject to Section 14(5), below. If there are any ambiguities in the terms or conditions of this agreement, it is the parties’ intent that all ambiguities be resolved in favor of arbitration. If any provision of this agreement is unenforceable, the remainder of this agreement shall remain in full force and effect.
- Class and Collective Action Waiver; No Consolidated or Joint Actions. The parties agree that all covered disputes brought against each other will be arbitrated on an individual basis only and not in a class action arbitration, a collective action arbitration, or on any other group, representative, consolidated, or joint basis. The arbitrator shall have no authority to consider or resolve any covered dispute or any claim or issue in a covered dispute on any basis other than on an individual basis and may not proceed or direct the parties to proceed on a class or collective action basis or consolidate or join one or more covered disputes pertaining to you with any other individual’s or entity’s covered dispute(s). The provisions in this agreement mean that both parties waive their right to commence, become a party to, or in any way participate in any class action, collective action, or group or representative action or claim against the other party or in any such action or claim consolidated or joined with another party, with respect to any covered dispute, and each party agrees to opt-out of or be severed from any such action or proceeding. You further agree that your rights as a consumer under the CCPA are neither waived nor impaired by virtue of proceeding in a non-class, non-collective, non-consolidated, and non-joint arbitration authorized by this agreement, nor shall proceeding in a non-class, non-collective, non-consolidated, and non-joint arbitration be deemed or determined to constitute a waiver or impairment of your rights.
- Fees, Award. The parties agree that they shall share equally (each pay one-half) the fees and costs of the arbitrator and the fees and costs of arbitration charged by JAMS; except that: (i) in all cases where required by law, the we will pay the full amount of the arbitrator’s and JAMS arbitration fees and costs; and (ii) where the arbitrator determines that it is appropriate or necessary based on your financial resources, we shall pay more than one-half, in an amount to be determined by the arbitrator as fair and equitable. Each party shall bear the cost of his/her/its own legal fees and costs, including but not limited to attorneys’ fees and expert witness fees, subject to any right to recover such fees and costs under applicable law, which the arbitrator shall apply where applicable. In rendering an arbitration award, the arbitrator shall apply applicable and appropriate law and shall award all statutory remedies and penalties, including attorneys’ fees and costs to the extent authorized by and consistent with law. The award shall be in writing and the arbitrator shall set forth the essential findings of fact and law. Either party may request that a transcript and/or recording of the hearing be made.
SECTION 15 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless BYB 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 16 - SEVERABILITY
In the event that any provision of these Terms of Service 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.
SECTION 17 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Service, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Service (or any part thereof).
SECTION 18 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, 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 of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 19 - GOVERNING LAW
SECTION 20 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at 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. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 21 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org