TERMS OF SERVICE
By accessing and using the Services identified herein, which is or may be provided by BEARCAT LOVE INDUSTRIES LLC, a Florida limited liability company (“Company,” “us”, “we”, “our”), user, or its agent or representative on behalf of user (individually and collectively, jointly and severally, “you,” “your,” “User”) expressly agrees to these Terms of Service, along with our Privacy Policy (collectively, these “Terms” or the “Agreement”), which are a material prerequisite to your use of our Service. We may modify these Terms of Service at any time.
GENERAL.
In general, Company operates a non-alcoholic beverage business, providing the wholesale and/or retail sale of non-alcoholic beverages, which may, from time to time, include cannabinoid beverages and/or beverages with other supplemented ingredients, from time to time (“Products”). The sale of Products together with Company’s website and other services constitute Company’s “Service.” Company shall have complete discretion to determine the content, Products, and services of the Service, which may include from time to time, a mobile application, a website, social forums, product ordering, product delivery, activities, events, and/or other services (collectively, the “Service” or “Services”). Company may expand, contract, amend, modify, edit, delete, or eliminate part or all of the Services at any time, for any reason or no reason, in its sole discretion.
MINIMUM AGE; GEOGRAPHY.
YOU MAY ONLY USE OUR SERVCES FOR LAWFUL PURPOSES, AND YOU MUST BE AT LEAST 18 YEARS OF AGE. WE DO NOT KNOWINGLY COLLECT PERSONALLY IDENTIFIABLE INFORMATION FROM ANYONE UNDER THE AGE OF 18. DO NOT USE OR ACCESS OUR SERVICE OR PROVIDE US WITH ANY INFORMATION ABOUT YOURSELF IF YOU ARE UNDER 18 YEARS OF AGE OR OUTSIDE THE UNITED STATES.
BY ACCESSING OUR SERVICES, YOU REPRESENT AND WARRANT YOU ARE AT LEAST 18 YEARS OF AGE, AND IF PURCHASING AGE-RESTRICTED PRODUCTS, YOU REPRESENT AND WARRANT YOU ARE OF LEGAL AGE TO PURCHASE SUCH PRODUCTS. WE RESERVE THE RIGHT TO AGE-GATE PART OR ALL OF THE SERVICES AND/OR REQUIRE VALID GOVERNMENT-ISSUED PHOTO IDENTIFICATION TO VERIFY YOUR AGE PRIOR TO ANY PURCHASES OR PROVIDING YOU WITH ACCESS TO ANY AGE-RESTRICTED SERVICES.
VOID WHERE PROHIBITED.
You shall not use the Service in any jurisdiction where its use is prohibited, including, without limitation, in any jurisdiction where the Service is prohibited. You are solely responsible for compliance with all laws, rules, regulations, ordinances, codes, judicial and other government orders (“Laws”) applicable to your use of the Service and any business you operate.
NO ADVICE OR WARRANTIES.
Under no circumstances does Company or the Service provide medical, psychological, financial, legal, or other professional advice, and any information or statements provided by Company or on the Service shall not be construed as such. Use of the Service does not establish any kind of professional relationship, including, without limitation, medical, psychological, or legal. Information or other statements provided on the Service are for informational purposes only, without warranties of any kind, including no warranties of accuracy or completeness, and shall not be relied upon for making decisions. Company makes no warranties or guarantees regarding the accuracy, reliability, or outcomes of information, or other statements. In every circumstance, You are responsible for your own conduct and decisions.
PRIORITIZATION.
The Services will be developed and implemented on a schedule, and in priority of segments, as Company determines necessary or desirable. Exact commencement/start dates for various functionalities of the Services may vary or deviate from estimates, without liability to Company.
THIRD PARTY SERVICERS.
If, in Company’s discretion, any aspect of the Service requires third party support (from “Third Party Servicers”), Company may retain Third Party Servicers in its sole discretion and at its sole cost and expense. Company is not responsible to User for the terms of any Third Party Servicer, nor for any malfunction or other failure of Third Party Service. User shall be subject to any Terms of Service and Privacy Policy of a Third Party Servicer, which User acknowledges and agrees Company has no control over or liability from. User shall commit no act or omission that causes Company to breach any third party’s Terms of Service.
Company will be entitled to rely on any directions or consent provided by User or any representative who User designates to provide such directions or consent (“Authorized Contacts”). If a previously identified Authorized Contact is no longer available to us, then User’s Authorized Contact will be the person (i) who signed this Agreement, and/or (ii) the agent or representative of User who generally corresponds with Company. In the event User designates or allows another person to use User’s account, User and such other person (who also becomes a User) are both responsible for these Terms of Service with respect to such use.
By accepting these Terms of Service, including use of the Service by User, User represents and warrants that he/she is duly authorized to enter into this Agreement, that any and all internal procedures necessary for binding User to this Agreement have been complied with or otherwise waived; and in the event of any breach of the foregoing representation/warranty, the User shall indemnify, defend, and hold harmless Company and its Indemnified Parties defined in the Indemnification section, on the terms thereof as they relate to any Claims arising out of or relating to such breach.
CONTENT OF INPUTS.
All content, uploads, and other inputs into the Service by User shall be relevant to the purposes of this Agreement and purposes of the Service; and no prompt, upload, or input shall be of an illegal, harassing, bullying, abusive, profane, or otherwise harmful or irrelevant nature, as determined by Company. For any User information or content, uploads, inputs, or other deposits into the Service or otherwise in the Service environment by User (collectively, “User Content”), the deposit of User Content into the Service is done at User’s sole risk in all circumstances, including, without limitation, in terms of Company’s or its Third Party Servicers’ exposure to such information.
RESPONSE; DELAYS.
Company’s response to issues relating to the Service will be handled in accordance with Company’s schedule. In no event will Company be responsible for delays in response or its provision of the Service, nor for delays caused by Third Party Servicers, nor other reasons beyond Company’s control.
INTELLECTUAL PROPERTY.
“Intellectual Property” means, without limitation, any and all domestic or international trade names, brand names, fictitious names, trademarks, service marks, trade dress, trade designations, trade secrets, copyrights or copyrightable works, patents, rights of publicity, designs (whether artistic, technological, functional, or other type of design), artwork, label designs, logos, drawings, specifications, work product, concepts, prototypes, blueprints, plans, formulas, systems, schemas, recipes, methods (including without limitation delivery, storage, receipt, transmission, presentation, and manufacture of audio, video, formulaic, informational, or other data or content), techniques, business models, writings, graphics, reports, projections, or any other compilations of information, software of any and every kind, software and computer codes of any and every kind, software development tools, assemblers, compilers, device drivers, software libraries, firmware, hardware, web domain names, technology, technical information, scientific information, processes, strategies, templates, forms, discoveries, research and development data, customer lists, databases, database schemas, financial information, pricing models, personnel information, training methods, marketing plans or techniques, business plans or proposals, inventions (whether patentable or not), discoveries, proprietary information, know-how, data, written material, records, and all improvements and derivatives thereof, and all other intellectual property, proprietary rights, goodwill, and documents related thereto, whether registerable or not, whether registered or not, and whether reduced to practice or not, which exists, is embodied in, or comes within the scope of the Service, along with any and all applications for registration of same in any jurisdiction, and any and all renewals or extensions thereof, together with all other rights and interests accruing by reason of domestic or international conventions with respect to intellectual property, all together with any or all rights to royalties resulting from the licensing of any Intellectual Property and the rights to pursue damages, injunctive relief, or other remedies for infringement or misuse. INTELLECTUAL PROPERTY FURTHER INCLUDES ANY AND ALL USER CONTENT AS DEFINED IN THE “CONTENT OF INPUTS” SECTION ABOVE, AS WELL AS ANY AND ALL USER FEEDBACK AND IDEAS PRESENTED BY A USER TO COMPANY. For the avoidance of doubt, the definition of Intellectual Property and the items and materials that are covered by the scope of this definition shall be construed as broadly as possible in favor of Company.
- Ownership of Intellectual Property. All Intellectual Property embodied within, uploaded to, deposited to, or otherwise associated with the Service is and shall remain solely the property of Company. User hereby assigns, grants, conveys, and transfers to Company all Intellectual Property rights associated with User Content, and any and all User feedback and ideas presented to Company, along with the goodwill associated therewith.
- License to use Service. During the term of this Agreement, Company provides User with a limited, non-exclusive, non-transferable, royalty-free, license, in the territory of the United States, to access the Service and use it on the terms of this Agreement, and for no other purpose. In the event of paid services, if Company suspects usage beyond one User on an account, Company may require proof of each actual User’s membership, and may suspend or terminate User’s account and usage if such proof is not provided or not sufficient. Each User may be permitted or required to establish an account to access the user-end portions of the Service with login credentials (which may be provided by Company unless Company permits the User to select their own login credentials). Login credentials shall be kept in confidence except as may be required by Company to be provided to Company. Login credentials shall only be used for the purposes of this Agreement, and User shall not provide User’s login credentials to any third party.
- Protection of Intellectual Property. User shall not do or attempt, directly or indirectly, nor encourage others to do or attempt any of the following:
- register or use any other trade name, trademark, service mark, or other form of Intellectual Property incorporating or based in whole or in part on any of the Intellectual Property;
- use any Intellectual Property as part of any corporate or trade name, as part of prominent signage displaying its business name, or in connection with unauthorized goods or services;
- use the Intellectual Property in combination with any other intellectual property;
- debrand, rebrand, or private label any of the Intellectual Property;
- deconstruct, decode, decompile, disassemble, reverse engineer, or otherwise tamper with any of the Intellectual Property;
- copy, or duplicate the Intellectual Property, or develop any derivative works thereof, or include any portion of the Intellectual Property in any work product;
- separate the Intellectual Property into component parts, or install or attach other software, programs, devices, or intellectual property to the Intellectual Property;
- remove any product identification, or notices of any proprietary restrictions, or Intellectual Property designation;
- hold itself out as having any ownership interest in the Intellectual Property;
- license the Intellectual Property to a third party;
- dispute the validity, ownership, or enforceability of any of the Intellectual Property; oppose the registration of any pending registration application; or petition to cancel the registration of any registered Intellectual Property;
- any other thing that would constitute infringement of, or which invalidates, dilutes, diminishes, tarnishes, harms, or otherwise adversely affects the functionality of the Intellectual Property, the value of the Intellectual Property, or the goodwill associated therewith.;
NO WARRANTY.
User acknowledges, understands, and agrees that the content of the Service shall be solely in Company’s discretion; that Service content may or may not align with User’s expectations; that the Service may not perform optimally or at all, that there are no warranties or guarantees of functionality, fitness for a particular purpose, accuracy, completeness, outcomes, security of the Service, or the information contained therein, or otherwise, and that User shall not and will not rely on any results or outputs of the Service. Service data will be stored on a third-party cloud-based Service such GoDaddy, in accordance with its terms of service. We may change our storage provider and any Third Party Servicer at any time, without notice. Inclusion of any User Content is done at User’s sole risk.
ONLINE ORDERING.
At Company’s option, from time to time, Company may, but is not obligated to, offer for sale various Products. Company shall have complete control over the Products offered for sale, the prices charged, any order minimums or maximums, the scheduling and flow of production and delivery, and all other aspects of Company’s business. Company shall be free at all times to maintain, alter, or decrease the number and types of Products, to make new Products available or not, to produce or sell any particular Products, and to discontinue the sale of any of the Products. Company shall not be liable to User for the unavailability of an ordered Product, except that User will not be charged (or will be refunded) all costs associated with the Order of the unavailable Product. Company may, but is not obligated to, make substitute Product offerings available to User at the then-current pricing. Company may, but is not obligated to, maintain a wait list for unavailable Products.
IF AT ANY TIME, THE SERVICES INCLUDE THE SALE OF AGE-RESTRICTED PRODUCTS UNDER APPLICABLE LAW, SUCH PRODUCTS ARE INTENDED ONLY FOR PERSONS WHO ARE OF LEGAL AGE TO PURCHASE SUCH PRODUCTS IN BOTH THE JURISDICTION OF COMPANY AND THE JURISDICTION WHERE USER IS LOCATED. FOR EXAMPLE, WITHOUT LIMITATION, IF YOU LIVE IN A JURISDICTION WHERE THE AGE TO PURCHASE A CERTAIN PRODUCT IS 18, BUT IN THE JURISDICTION WHERE COMPANY PROCESSES ORDERS FOR THAT PRODUCT, THE LEGAL AGE IS 21, YOU MAY NOT PURCHASE SUCH PRODUCTS UNLESS YOU ARE AT LEAST 21 YEARS OLD. IF YOU ARE UNDER THE LEGAL AGE TO PURCHASE AGE-RESTRICTED PRODUCTS, YOU MAY NOT PURCHASE OR PROVIDE ANY PERSONAL INFORMATION ABOUT YOURSELF WITH RESPECT TO AGE-RESTRICTED ITEMS.
CANCELATION OF ORDERS.
Cancelations may only be made within twenty-four (24) hours of placing an Order, and is subject to the fees described in this Section, Cancelation of Orders. “Order Total” means the entire amount paid by User for an Order, including sales tax and any other taxes or fees collected by Company.
If User timely cancels an Order, in whole or in part, and fulfillment has already begun, Company will cancel the Order and refund the Order Total, or applicable part thereof on a partial cancelation, less a fifteen percent (15%) administrative fee.
If User timely cancels an Order, in whole or in part, and fulfillment has not begun, Company will cancel the Order and refund the Order Total, or applicable part thereof on a partial cancelation, with no penalty.
If Company cancels an Order for a reason that is not User’s fault, Company will refund the Order Total to User.
Company shall have the right to suspend or cancel User’s Order for any of the following reasons: (i) a Force Majeure event as defined in the Force Majeure section; (ii) a User Default as defined in the User Default section.
TERMS OF SALE.
Orders. Subject to the terms of this Agreement, Company will sell the Products to User according to Orders received from User. Company may set Order minimums or maximums at any time. Notwithstanding the foregoing, Company need not fill any Order in a quantity that is beyond Company’s capacity, taking into account, without limitation, Company’s timeliness for other customer Orders. All Orders for the Products shall be subject to Company’s acceptance. Company shall have the right to specify the forms and procedures governing placing Orders, which may be electronic, online, or otherwise. User’s Orders for the Products, and Company’s acceptances thereof, whether oral, written, or otherwise, will be subject to this Agreement. Any term or condition in Orders or acceptances that conflict with this Agreement shall be unenforceable.
Company’s Sales Prices. The prices for the Products shall be the prices established by Company in effect on the date each Order is placed. Changes in prices will be reflected in the ordering functionality of the Service, with or without advance notice.
Deliveries of Products. The Products shall be sold free on board (FOB) from Company’s warehouse at 2507 Investors Row, Ste 150, Orlando, FL 32837, and risk of loss shall pass to User when Company deposits the ordered Products with the carrier or courier.
Payment Terms. Company may invoice User upon ordering or upon shipment of the Products. Ordering functionality will indicate whether payment is due upon ordering or due upon shipment. User’s failure to make timely payment for three (3) Orders within any three (3)-month period shall constitute a failure by User to comply with a provision of this Agreement that is both reasonable and of material significance to the business relationship between User and Company and a default subject to the User Default section of this Agreement. Notwithstanding the foregoing, in the event User is in arrears on the payment of any amount owing to Company, while such arrearage continues, Company reserves the right to (i) decline new Orders, (ii) demand adequate assurance of payment, and/or (iii) demand cash payment upon delivery, without prejudice to any other right Company may have. All payments shall be made by check, credit/debit card, Electronic Funds Transfer (EFT), or other method determined by Company. Company may, but is not obligated to, accept payments via digital payment platforms such as PayPal, Zelle, Venmo, etc.
Special Arrangements. In Company’s sole discretion, Company may offer discounts, coupons, or other special pricing or invoicing arrangements, which may be offered to some Users and not others. Company has the right, but not the obligation, to provide pricing discounts, credits, or special pricing or invoicing arrangements in its sole and absolute discretion. Discounts, credits, or special arrangements may correlate to Order size, customer profitability, or other factors considered in Company’s sole discretion.
Responsibility for Taxes. User shall be responsible for all applicable federal, state and local taxes of whatever nature that may be assessed against User for any Products purchased by User, and sold by User, including if sold in violation of this Agreement. If for any reason Company is required or demanded to pay any amount of federal, state or local taxes of whatever nature, which are or should be assessed against User with respect to the Products, User will reimburse Company the full amount thereof paid by Company within five (5) business days of receiving notice thereof, plus a ten percent (10%) administrative fee.
DELIVERY; CLAIMS.
If Company offers Products for sale, Company may determine in its sole discretion whether to utilize a Third Party Servicer for shipping and/or delivery, or to provide shipping and/or delivery by Company itself. User shall be subject to the terms and conditions, and privacy policies, of any Third Party Servicers utilized by Company.
User shall inspect delivered Products within twenty-four (24) hours of receipt and shall report any claims for damage within that time.
Any claims for shortages, damaged Products, or discrepancies in any shipment must be sent to Company no later than twenty-four (24) hours after receipt of the shipment at User’s facility. Company will issue User a credit for claims that are approved, or notify User of disapproval and the reason for disapproval, within fifteen (15) days of receipt of the claim. THERE ARE NO RETURNS OR REFUNDS EXCEPT FOR PRODUCTS THAT ARE RECALLED OR SO DAMAGED THEY ARE UNSELLABLE. THERE WILL BE NO REFUNDS OR RETURNS FOR MINOR DENTS. COMPANY MAY REQUIRE PHOTOGRAPHIC AND OTHER EVIDENCE OF DAMAGE.
RECALLS.
If any Products are recalled by government mandate, government recommendation, or voluntarily by Company, User must return any unopened Products to Company within forty-five (45) days of receipt of Company’s recall or discontinuance notice, if User desires to utilize the recall remedy. Company will refund User an amount equal to User’s Order Total plus documented return shipping cost, which shall be User’s sole recall remedy.
NO RESALE.
User shall not do or attempt, and shall not permit or encourage, directly or indirectly, the resale of any component, aspect, outcome, result, or product associated with the Service. For example only, and without limitation, (a) User shall not sell customer subscriptions to any information, reports, or outputs from the Service or information obtained from the Service, and (b) multi-packs of a Product shall not be separated and resold by User, User acknowledging that all profits and potential profits arising from or relating to the Service itself, its capabilities, and any Products sold by Company, belong to Company.
USER DEFAULT.
The occurrence of any of the following shall be a User Default, in which event Company shall be entitled to suspend or terminate User’s account or pending Orders, or may refuse future Orders from User, or may require a deposit or pre-payment for future Orders, in Company’s sole discretion:
Any of the following late payment scenarios, involving payment of any amounts due Company: (i) three (3) late payments within any rolling three (3) month period, (ii) five (5) late payments within any rolling twelve (12) month period, or (iii) any single late payment that is more than sixty (60) days late;
User’s insolvency, defined as User’s inability to pay debts when they become due; making an assignment for the benefit of creditors or seeking, consenting to, or acquiescing in the appointment of a receiver, trustee, or custodian for all or a substantial part of User’s property or business; User becomes the subject of a voluntary or involuntary bankruptcy proceeding which is not dismissed or stayed within thirty (30) days; or User enters into any kind of workout plan with creditors; or
User’s harassing, abusive, fraudulent, or dishonest correspondence or behavior toward Company’s Representatives as defined in the Limitations on Liability section, Third Party Servicers, other users, or violation of the Non-Disparagement section, or otherwise interfering with Company’s ability to optimally operate Company’s business, none of which require an opportunity to cure; or
Any other breach of this Agreement by User besides non-payment to Company, which is not cured within ten (10) days of written notice by Company.
COMPANY DEFAULT.
Company shall not be in default under this Agreement unless Company has failed to ship Products in accordance with this Agreement (including, without limitation, subject to Force Majeure, within ten (10) days after the delivery date set forth in the Order (“Company Default”).
In the event of a Company Default, User may cancel the affected Order for a full refund of any amounts paid or pre-paid by User for the Order, and such refund shall be User’s sole and exclusive remedy.
LIMITATIONS ON LIABILITY.
For any contract matter under this Agreement in which Company is not liable to User, Company likewise shall not be liable to any person or entity claiming through User or due to their relationship with or relating to User.
Under no circumstances shall Company be liable or responsible for User’s or any third party’s behavior (including without limitation that of event hosts or the general public), nor any such person’s or User’s breach of any agreement, negligence, violation of Law, violation of intellectual property rights, willful misconduct, or any such party’s tortious act or omission.
The foregoing limitation shall apply even if the remedies listed in this Agreement fail of their essential purpose.
INSURANCE.
As a material condition to this Agreement, User shall maintain at all times during the Term of this Agreement insurance policies that User or its advisors deem necessary or advisable to protect User’s personal assets, business, business assets, devices, data, and equipment, providing coverage against cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, and other typical cyberinsurance, theft, personal and business coverages, as User acknowledges and agrees such incidents can occur even under a “best practices” scenario.
User on behalf of itself and its affiliates, and each of their respective (as applicable) heirs, personal representatives, owners, officers, directors, members, shareholders, employees, contractors, subcontractors, and agents (collectively, including User, jointly and severally, “User Parties”) shall indemnify, defend, and hold harmless the Company Representatives as defined in Limitations on Liability (who in this section are also referred to as an “Indemnified Party,” collectively, “Indemnified Parties”) from and against any and all losses, damages, claims, causes of action, lawsuits, investigations, judgments, and other legal or adverse action (“Disputes”) arising out of or relating to User’s: (a) Losses as defined in Limitations on Liability, (b) violation of any obligation under this Agreement or any other agreement with any party, (c) negligence, (d) violation of law, rule, regulation, ordinance, judicial or other government order, (e) violation of any third party right, (f) willful misconduct, or (g) tortious act or omission, any or all of the foregoing by User or any User representative (collectively, “Claims”), including any and all actual damages incurred by an Indemnified Party, including without limitation economic damages, statutory damages, consequential damages, or damages of any other kind for which an Indemnified Party is held liable or incurs via settlement of Claims, or for an Indemnified Party’s preparation of, participation in, and legal guidance for responses to any subpoenas (of any kind, including, without limitation, for materials, documents, deposition, etc.), discovery, or other mandatory or requested involvement in any lawsuit, arbitration, mediation, investigation, or other legal process due to User’s involvement (as a party, witness, or otherwise) in such investigation or legal process; plus attorney’s fees for counsel of the Indemnified Party’s choosing, third party attorney’s fees for which an Indemnified Party is held liable or incurs via settlement of Claims, and all costs associated with the Indemnified Party’s defense of any such Claims at all levels of pre-litigation, litigation, settlement, trial, appeal, enforcement, and bankruptcy (any or all of which whether or not occurring in violation of any arbitration requirement), all less any insurance proceeds covering or related to same. The Indemnifying Party will have the sole right and option to determine the intake, defense, disposition, settlement or other resolution of any Claim for which it will be held responsible. Each party shall be permitted to have counsel of its choosing, participate in the prosecution or defense of the applicable Claim. Each party shall have the sole right and option to settle any Claim involving it.
SUSPENSION; TERMINATION.
Company may suspend or terminate User’s account upon User’s breach of the Agreement, with or without opportunity to cure. Accounts may also be suspended during any period in which Company deems it necessary to suspend the Service’s operation for any reason or no reason; and Company may terminate the Service, User accounts, and this Agreement at any time for any reason or no reason.
NON-SOLICITATION.
During the pendency of each Order and for a period of two (2) years after each Order, neither User, nor its affiliates, nor any of their respective employees, agents, owners, officers, directors, members, partners, or shareholders (together with User itself, collectively “User’s Parties”) shall directly, or indirectly through another person or entity: (i) induce or attempt to induce any present, prospective, or future Business Relation of Company to leave the employ of, or terminate its contract, affiliation, or other business relationship with Company, (ii) hire or recruit away any present, prospective, or future Business Relation of Company, (iii) induce or attempt to induce any present, prospective, or future Business Relation of Company to cease doing business with Company or its other Business Relations, or (iv) otherwise interfere with or undermine any of the foregoing relationships. “Business Relation” means Company’s present, prospective, and future (during the term of the Non-Solicitation period) officers, directors, members, shareholders, clients, customers, employees, contractors, vendors, suppliers, other agents, affiliates, Third Party Servicers, or other business relations.
NON-DISPARAGEMENT.
During the Term of this Agreement and for as long as the law allows, User acknowledges and agrees that User shall maintain professional decorum, even in the event of disagreement or dispute. User shall not, nor encourage others to, disparage Company, or any of its Company Representatives as defined in the Limitations on Liability section, or family members of any of the foregoing, or the products or services of any of the foregoing (collectively, “Protected Parties”). For purposes of this Agreement, the term “disparage” includes, without limitation:
- derogatory or inflammatory, opinionated or unsubstantiated, comments or statements to the press, on social media, or otherwise to the public, that would adversely affect in any manner, any business (including plans or prospects), business reputation, product or service, or product or service reputation, of a Protected Party.
- attempts at “doxing” a Protected Party (i.e. obtaining public or private information about the person/company and disseminating it in a manner intended to cause harm of any kind), or attempting to have a Protected Party “canceled” (i.e. to adversely influence public perception of the person/company to induce loss of job, business, or social life).
Nothing herein shall prohibit a person or entity from making factual statements supported by evidence, provided that such facts are presented in a factual, professional, non-inflammatory manner.
EFFECT OF TERMINATION.
Upon any termination of this Agreement, User shall return to Company any materials, equipment, tools, documents, information, physical or digital or virtual files, or any other item of any nature belonging to Company which was provided to User or to which User was given access during the Term of the Agreement. For any paid services, User will be responsible for payments up to the effective date of termination. There are no refunds.
NOT FOR COMPLIANCE OR ADVICE.
The Service does not, is not intended, and User shall not use it for, to bring User into compliance with any law, rule, regulation, or requirement that may be applicable to User’s reason for using the Service.
FORCE MAJEURE.
Neither Company, nor its employees, contractors, subcontractors, or agents shall be liable for any failure of, or delay in, the performance of its obligations due to events (or the effects of events) beyond its reasonable control, whether foreseeable or not, including but not limited to: shortage or unavailability of ingredients; shortage or unavailability of materials; delays in transportation, couriers, carriers, customs, ports, or the like; equipment breakdown; interference by any third party; strike; lockout; work stoppage; labor dispute; utility outage; fire; explosion; flood; earthquake; tornado; hurricane; acts of a public enemy (for example and without limitation, active shooter, bomb, terrorism, or threats of same); political unrest; protest; pandemic disease outbreak; local disease outbreak; act of God; any other natural disaster or third party disaster; trade sanction; embargo; act of war; sabotage; insurrection; eminent domain; government required quarantine; blockade; mutiny; condition caused by national emergency or state of emergency declared by applicable jurisdiction; government or quasi-government shutdown; new or changed judicial, executive, legislative, administrative, or other law, rule, order, or government or quasi-government act; or any other act or cause beyond the reasonable control of such party. If a Force Majeure event lasts longer than thirty (30) days beyond the Order’s stated delivery date, either party may cancel the Order without penalty, and User shall receive a refund of the Order total.
ASSIGNMENT.
User may not assign this Agreement without the advance written consent of Company, which consent may be withheld, conditioned, or delayed, in Company’s sole discretion. Company may assign this Agreement without written notice to User. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. A change in control of a corporate User shall be deemed an assignment.
SEVERABILITY.
It is not the intent of the parties to exceed the bounds of the law. If any term or provision of this Agreement is deemed unenforceable as written, it shall, if possible, be revised as closely as possible to the parties’ original intent in a manner consistent with the law, or else deleted if no legal revision is possible, and in any case the remainder of this Agreement shall remain in full force and effect, as closely as possible to the Agreement’s original intent.
BINDING ON SUCCESSORS. Any Orders placed by User will be binding upon any successor in interest to User, for example, and without limitation, via merger, consolidation, or assignment.
NO WAIVER.
The failure of Company to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
NO THIRD PARTY BENEFICIARIES.
There are no third party beneficiaries to this Agreement.
FURTHER ASSURANCES.
User agrees to execute any and all other documents reasonably necessary for the enforcement, effectiveness, or perfection of any term or provision of this Agreement.
SURVIVAL.
The provisions contained in this Agreement which by their terms expressly survive, or which for their complete fulfillment must survive, termination or expiration of this Agreement, shall survive, including specifically, but without limitation, terms and provisions relating to payment (if applicable), protection of Intellectual Property, non-disparagement, and dispute resolution terms.
NOTICES.
Any notice or other communication required or permitted hereunder shall be in writing and may be delivered by hand, overnight trackable courier service, or United States Certified Mail. Company may instead provide Notices to User at User’s email address on file. Notices delivered by hand or overnight trackable courier shall be deemed to have been duly given on the date of delivery. Notices delivered by United States Certified Mail shall be deemed to have been duly given three (3) days after the date of mailing. Notices delivered by e-mail shall be deemed to have been given on the date sent if sent prior to 5:00 p.m. Eastern time on Monday through Friday. Any e-mail sent after 5:00 p.m. Eastern time on Monday through Friday, or at any time on weekends or legal holidays shall be deemed to have been given on the following business day. If to Company, Notices shall be sent to Company’s mailing address on file with the Florida Division of Corporations at sunbiz.org. If to User, Notices shall be sent to User’s mailing address or email address on User’s account. It is User’s responsibility to update Company with any new or different contact information. Actual receipt of any Notice shall be deemed validly delivered, notwithstanding technical defect.
ARBITRATION.
Except as provided below, any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be resolved by binding arbitration conducted in accordance with the Florida Arbitration Code, Chapter 682, Florida Statues (the “Florida Arbitration Code”), before one (1) arbitrator who is mutually agreed upon by the parties, or if the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall be seated in Orange County, Florida, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, then to the extent allowed by law, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and software/information technology transactions. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The parties shall split the cost of the arbitrator’s fees, and otherwise shall pay their own attorney’s fees, costs, and expenses. The arbitrator’s findings of fact shall be binding, but a party may appeal to a court of law as to matters of law and for enforcement.
Exceptions to arbitration requirement: At the option of the plaintiff, any claim for temporary, preliminary, or permanent injunctive relief to enjoin infringement or other misuse of intellectual property rights, or for violation of non-solicitation, non-disparagement terms, or to prevent imminent or ongoing property damage or injury to person or property may be brought in a court of law.
This Agreement shall be governed by, and construed in accordance with, the laws of the United States and the State of Florida, without giving effect to Florida’s conflicts of laws rules, and regardless of the place or places of its physical execution and performance. User and the Company hereby (a) consent to the personal jurisdiction of the state and federal courts serving Orange County, Florida, United States (b) stipulate that the exclusive venue and seating for any mediation, arbitration, or other legal proceeding arising out of this Agreement is Orange County, Florida, United States, and (c) waive any defense, whether asserted by motion or pleading, that Orange County, Florida, United States is an improper or inconvenient venue. The parties consent to video appearances for all appearances, except as otherwise required by a court.
WAIVER OF JURY TRIAL.
AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION (INCLUDING IF FILED IN VIOLATION OF THE ARBITRATION REQUIREMENT) RELATED TO, BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTIONS DESCRIBED OR CONTEMPLATED HEREBY, AND/OR ANY RELATIONSHIP, COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY INCLUDING, BUT NOT LIMITED TO, SUBSEQUENT ACTIONS TAKEN IN ENFORCEMENT OF ANY PARTY’S RIGHTS UNDER THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY EACH PARTY, AND EACH SUCH PARTY ACKNOWLEDGES THAT NONE OF THE OTHER PARTIES NOR ANY PERSON ACTING ON BEHALF OF ANY OTHER PARTY HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EACH PARTY HEREBY FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION, AND FURTHER HAS HAD THE OPPORTUNITY TO HAVE THE LEGAL COUNSEL OF ITS CHOOSING REVIEW THIS WAIVER AND THE ENTIRE AGREEMENT, OR ELSE HAS WAIVED SUCH OPPORTUNITY. IT IS THE PARTIES’ INTENTION THAT BY THIS WAIVER, ANY DISPUTE OF ANY NATURE WHATSOEVER, IN CONTRACT OR IN TORT OR OTHERWISE, OR IN ANY WAY WHATSOEVER RELATED TO BUSINESS BETWEEN THEM SHALL NOT BE TRIED BY A JURY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
WAIVER OF CLASS ACTION.
AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, AND WITHOUT WAIVING ANY REQUIREMENTS FOR MEDIATION AND ARBITRATION (IF APPLICABLE), AND TO THE EXTENT ALLOWED BY LAW, THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
ATTORNEY’S FEES.
In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed (including if filed in violation of any arbitration provision), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.
ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties and no representation, promise, inducement or statement of intention other than those set forth in this Agreement has been made by a party, and neither party shall be bound by or liable for any other alleged representation, promise, inducement or statement of intention. No representation, promise, inducement or statement of intention other than those set forth in this Agreement has been made by a party, and neither party shall be bound by or liable for any other alleged representation, promise, inducement or statement of intention.
LANGUAGE TRANSLATION.
In the event of translation of this Agreement into any other language, the English translation shall govern.
UPDATES.
We may update these Terms of Service in response to changing laws or technical or business developments, or for any other reason in Company’s sole discretion. Your use of the Service constitutes your acceptance of the then-current Terms of Service.
ELECTRONIC AGREEMENT.
This Agreement may be executed manually or electronically, including online, any of which shall be deemed an original. Further, User’s access or use of the Service, and/or purchase of Products, constitutes agreement to this Agreement.