Last Updated: December 12, 2018
1. ABOUT THE PROGRAM
The Program is offered by D2C to permit subscribers the opportunity to explore, discover and consume fresh, high-quality and small-batch roasted coffees from around the world. Subscribers have the opportunity to take advantage of benefits through The Program from D2C and its participating sponsors, licensors, affiliates, partners and service providers (“Associates”). We have created these Terms to govern the use of our Site, Subscription in The Program and our Services.
Binding Terms. Read this document carefully as it is a binding document between us. By using the Site and our Services you agree to be bound by these Terms.
Eligibility. You may only register for a Taste of Home Roast account and purchase our products if you are at least 18 years old. When you register for an account, you represent and warrant that (1) you meet such age requirement, (2) all of the information you provide is accurate, current and complete, (3) you will be solely responsible for all transactions that take place using your account, (4) you will be solely responsible for maintaining the secrecy and security of your account and password and (5) you have the right, capacity and authority to be bound by these Terms. We reserve the right to refuse service, terminate your account, or cancel your orders in our sole discretion, including, without limitation, if we believe that your conduct violates applicable law or is harmful to our interests.
Updates to Terms. D2C reserves the right to update or otherwise change these Terms at any time by posting the most current version of the Terms on our Site with a new Last Updated date shown. All changes are effective from that Last Updated date and your continued use of our Services after that date signifies your agreement to any such changes.
Contacting You. Please keep your contact information up to date as you are solely responsible for any contact information you provide to us. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address or telephone number, you agree that this action constitutes either a purchase or inquiry and establishes a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable law.
Electronic Communications. By accessing the Site or enrolling in The Program (thus becoming a “Subscriber”), you consent to have these Terms provided to you in electronic form. You have the right to receive these Terms in non-electronic form at any time by contacting us online or sending a letter and self-addressed envelope to Taste of Home Roast, c/o D2C Ventures, LLC, 1750 Highway 160 W., Suite 104-260, Fort Mill, South Carolina, 29708.
3. BILLING AND AUTOMATICALLY RENEWING SERVICES
Purchasing our Products or Services. Please refer to the applicable offer for a description of our current Subscription plans and pricing. Any terms and conditions of any offer disclosed to you when accepting an offer are deemed part of these Terms.
Registration. By registering and becoming a Subscriber, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form, and (ii) maintain and properly update your account information to keep it true, accurate, current, and complete. If you provide information that is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to suspect that you have, or you violate these Terms, as determined in our sole discretion, we have the right to suspend or terminate your Subscription and refuse any and all current or future use of the Site and The Program (or any portion thereof). Registration is currently available only to U.S. residents.
Subscription Charges; Recurring Billing. You will be charged for your Subscription using the billing information you provide at the time of enrollment (your “Billing Account”). By enrolling in the Program, you authorize your Billing Account to be charged the fees then in effect for the Program on a recurring basis without any further authorization from you. The term of your Subscription is continuous. Your non-termination or continued use of The Program constitutes your authorization for your Billing Account to be charged in accordance with and at the frequency (e.g., weekly, bi-weekly, monthly, quarterly, yearly) identified at the time of enrollment. We reserve the right to correct any errors or mistakes contained in your Billing Account information and to update your Billing Account information from available third-party sources. The terms of your payment may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider of your chosen payment method (your “Payment Method Provider”). If D2C does not receive payment from your Payment Method Provider, or we are advised of insufficient funds in your account or credit to cover your payment we may re-present such un-cleared or rejected payment, or the amount due in partial increments, to your Payment Method Provider. In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys’ and collection agency fees. In the event we cannot charge the payment method you provide, we reserve the right to suspend or cancel your Subscription and invoice you for any unpaid amounts.
Free or Introductory Promotional Offer. If you enrolled for Subscription under a special introductory offer (e.g. , a discounted or free sample trial), you are subject to the terms of the offer you accepted and, unless you cancel within the time frame presented in the offer, the applicable regular Fee for the Services you selected will be posted to your payment method after the introductory offer or trial period is completed. We reserve the right to limit any introductory or trial offer to one per person/household.
Cancelation. To adjust your Subscription preferences, please email one of our Customer Service representatives at email@example.com. Your Subscription can be canceled at any time via the Site (www.tasteofhomeroast.com) by clicking on the “MY ACCOUNT” link and clicking on “Subscription”. From there, you can see the details of your subscription and cancel at any time. You may also cancel or adjust your subscription through telephone by calling 844-267-6278. To use the toll-free telephone option, you will need to have your Subscription number. This may be found in the “MY ACCOUNT” section on the website or in many of the email correspondence you have received or will receive from us. Unless canceled, your Subscription will be automatically extended as described above. If you cancel a monthly Subscription, you may use your Subscription until the end of your then-current paid-for Subscription term (i.e., month). Your Subscription will not be renewed after your then-current term expires. If you cancel an annual Subscription, you are eligible for a prorated refund of any portion of the Subscription fee paid for the then-current Subscription period, unless you have simply requested that your Subscription not be renewed, in which case you may continue to access your Subscription products or benefits until the end of your current term, and you will not receive a refund. If you cancel a monthly Subscription, partial months are not refunded. If your enrollment includes a trial period and you choose to cancel your Subscription within your trial period, you will continue to have access to your Subscription products or benefits for the remainder of your trial period.
Cancelation rights. Regardless of the terms of the offer you accept, if you make a request to customer service to cancel your Subscription at any time to avoid future charges, or to receive a pro rata refund for an annual Subscription, YOU WILL RECEIVE A FULL REFUND FOR AN ANNUAL SUBSCRIPTION IF YOU CANCEL WITHIN THE FIRST THREE DAYS AFTER YOU ACCEPT THE OFFER.
Billing Related Inquiries. To change your payment method or for any other billing related inquiries, please contact customer service at firstname.lastname@example.org.
Current Billing Information Required. You must promptly notify D2C if your payment method is canceled (e.g., for loss or theft). If you fail to notify us, you remain responsible for any continued charges to the payment method you provided.
Change in Fees for Recurring Charges. D2C reserves the right to change the fees for Subscription in The Program and will provide no less than 30 days’ notice of any increase prior to your being charged the new rate.
4. INTELLECTUAL PROPERTY RIGHTS
Ownership of Content and Marks. The Program, our Services, and all content published on or accessible through the Site and our Services (‘Content”) is owned by D2C, its affiliates or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. D2C owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Site. All trademarks, logos, service marks, trade names, and trade dress appearing on the Services (“Marks”), are proprietary to D2C, its affiliates, or its licensors. You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Services. You may not frame or utilize framing techniques to enclose any Mark or Content (including images, text, page layout, or form) nor use any meta tags or any other “hidden text” utilizing D2C’s, its affiliates’, or its licensors’ name or Marks without the prior express written consent of D2C. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any Site, Services or any of the Marks or Content, in whole or in part, without the prior written consent or D2C.
Our Limited License to You. D2C grants you a limited, personal, non-commercial, non-exclusive, revocable, non-assignable, and non-transferable license to access (but not through scraping, spidering, crawling or other technology or software used to access data) and display the Content (excluding any software code) solely for your personal use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose. You may not insert any code or product to manipulate the Content or Site in any way that affects any user’s experience. D2C and its licensors reserve all rights not expressly granted in and to its respective Marks and Content. You may not use the Site or the materials available on the Site in a manner that constitutes an infringement of our rights or that has not been authorized by us. More specifically, unless explicitly authorized in these Terms you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Site. You may, however, from time to time, download copies of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
Your License to Us. By posting or submitting any material (including, without limitation, comments and photos) to us via the Site (“User Content”), if possible, or otherwise, you are representing that you are the owner of the User Content you provide to us or you have the express written consent of the owner of the User Content to submit it to us and to provide the license herein. In addition, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such User Content, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose (“License”). The foregoing License shall include the right to exploit any proprietary rights in such User Content, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, as we deem appropriate.
Feedback. All comments or suggestions provided to us by any means, including without limitations through reviews, questions, comments, suggestions or ideas (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis. If you provide D2C with any Feedback, you hereby grant D2C a transferrable, sublicensable, License with the right use that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that D2C is not required to make any use of any Feedback that you provide. You agree that if D2C makes use of your Feedback, D2C is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to D2C to grant D2C and other affected parties the rights described above.
5. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
Filing a Complaint. D2C has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Services which allegedly infringes another person’s copyright We are under no obligation to scan content posted for any violations of third-party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Services. If you believe any materials on any Services infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by regular mail only, (“DMCA Takedown Notice”) that at a minimum includes:
- Identification of the URL of the Site and the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Your name, address, telephone number and email address (if available);
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
Filing a Counter-Notice. If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:
- Identification of the copyrighted work (or works) that was removed by D2C and the URL of the Site and location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
- Your name, address, telephone number and email address (if available);
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or the State of North Carolina if your address is outside of the United States;
- A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Takedown Notice to us;
- A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.
When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:
D2C Ventures, LLC
1750 Highway 160 W.,
Fort Mill, South Carolina, 29708
6. YOUR USE OF THE SERVICES
User Requirements. You agree that you may not access or use the Services in order to:
- use account information of any other user of the Services or sell, buy, license or transfer access to your account;
- copy, reproduce, distribute, display, or use the Services in a way that is not expressly authorized in these Terms;
- sell, rent, lease, license, distribute, or otherwise transfer the Services to a third party;
- reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble or make derivative works based on it;
- develop a product which is competitive with any of D2C’s products or services;
- remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it;
- use, export, or re-export it in violation of any applicable law or regulation;
- use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce D2C content or to manipulate the Services;
- interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment;
- damage, disable, overburden, or impair any D2C server, or networks connected to any D2C server, or interfere with any other party’s use and enjoyment of any Services;
- gain unauthorized access to any Services, other accounts, computer systems or networks connected to any D2C server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
- infringe any copyright, trademark, patent, trade secret, publicity or privacy right or any other proprietary right or disclose any trade secret of or violate any confidential obligation of any person or entity;
- upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of any Services or any user’s computer;
- exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage;
- for any unlawful purpose or any illegal activity;
- to post or submit any content whatsoever that is false, defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind, as determined in D2C’s sole discretion;
- post content that contains links to other sites that contain the kind of content, which falls within the descriptions prohibited by this Section;
- post content that is likely to cause reputational harm to D2C as determined in its sole discretion.
Injunctive Relief. You expressly acknowledge and agree that there may be no adequate remedy at law for a breach of this Section, that such a breach may irreparably harm D2C and D2C is entitled, without limiting any of its other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach of these Terms.
Indemnification. You agree to defend, indemnify, and hold harmless D2C, its affiliates, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your User Content or violation of these Terms.
Objectionable Content. D2C specifically disclaims any liability with regard to the User Content and any actions resulting from your participation in any posting Services. D2C IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION YOU POST ON OR THROUGH THE SERVICES. If you encounter something you find objectionable and in violation of these Terms, you can report it to email@example.com If you encounter something that is a copyright infringement see the Digital Millennium Copyright Act Notice in Section 5 above.
7. THE PROGRAM
Modification to Services. D2C has the right to modify The Program (and products and services accessible through its Services) and Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of D2C in providing its Content or Services is to cancel your order or stop using our Services.
No Binding Offer. Nothing on the Services constitutes a binding offer to sell, distribute or give away any products or services. We reserve the right at any time after receipt of your order to accept or decline such order, or any portion thereof, even after your receipt of an order confirmation or after you have been charged. Any prices displayed on the Services are quoted in U.S. dollars and are intended to be valid and effective only in the United States and Canada. In the event the products and services are listed at an incorrect price, we have the right to refuse or cancel orders placed at the incorrect price, regardless of whether the order has been confirmed or you have been charged. If your order is canceled by us after you have been charged, we will issue a credit.
Images of Products. Images available on or through the Services of any products may not accurately capture the actual appearance, color, look and feel, specifications, features, or functionality of such products.
Data Collection Policy. All data generated by or collected from us or our users while visiting our Services is our property. No party unaffiliated with us may collect or use, or direct, authorize or assist other persons or entities to collect or use, any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission. For example, no data may be collected, used or transferred for purposes of retargeting, behavioral remarketing, or targeting any advertisements, segment categorization or any form of syndication which is related to our Services, the Content, or our users without our prior express written permission of in each instance. The data covered by this policy includes, but is not limited to, data collected via any advertising unit, widget, pixel tag, cookie, script or other data collection process.
No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
International Users. The Services may be accessed from locations around the world. Subscription in The Program is limited to residents of the United States. D2C makes no representations that the Services, content or other services available through the Services, is appropriate for use from locations outside the United States or compliant with laws outside the United States. If you access the Services from a location outside the United States, you are responsible for compliance with all local and international laws.
U.S. Export Controls. Our software is subject to United States export controls. No software may be downloaded, otherwise exported or re-exported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Links and Other Third-Party Activities. You may be able to access other websites or resources through links accessible through Services. Because D2C has no control over such websites you acknowledge and agree D2C is not responsible for the availability of such external websites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials or available from such websites or resources. You further acknowledge and agree that D2C shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or resource. Although Subscription in The Program may provide discounts to third parties’ goods and services any issues with your purchase or use of such goods or services is between you and the applicable merchant or service provider.
9 LEGAL NOTICES
Disclaimer of Warranties. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING OR ACCESSING THE SERVICES IS AT YOUR SOLE RISK.
THE INFORMATION, PRODUCTS AND SERVICES OFFERED ON OR THROUGH THE SITE AND BY D2C AND ANY THIRD-PARTY SITES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SITE OR ANY OF ITS FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY PART OF THIS SITE, INCLUDING COMMENT FIELDS, OR THE SERVERS THAT MAKE IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR MATERIALS ON THIS SITE OR ON THIRD-PARTY SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED. THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF YOU ARE DISSATISFIED WITH ANY OF THE SERVICES OR CONTENT ACCESSIBLE OR CONTAINED IN THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL D2C OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (“RELEASED PARTIES”) BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. OUR LICENSORS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS.
NOTWITHSTANDING THE FOREGOING, SOME COUNTRIES, STATES, PROVINCES, TERRITORIES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY AS STATED ABOVE, SO THE ABOVE TERMS MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN D2C’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED WHAT YOU PAID FOR THE SERVICES FOR THE LAST 30-DAY PERIOD YOU WERE CHARGED.
Proposition 65 Warning. The Safe Drinking Water and Toxic Enforcement Act of 1986, popularly known as Proposition 65, is a California law intended to protect California citizens from chemicals known to cause cancer or birth defects or other reproductive harm and to inform citizens about exposures to such chemicals. One such chemical is acrylamide, which may be present in coffee, including the coffee sold by D2C. Acrylamide is a naturally occurring byproduct formed when certain sugars and an amino acid react to high temperatures, such as when coffee is roasted. The U.S. Food and Drug Administration (FDA) has not determined that the low levels of acrylamide naturally found in roasted coffee have any public health impact. Your personal cancer risk is affected by a wide variety of factors. For more information on acrylamide, please consult the FDA’s website at fda.gov. For more information about both acrylamide and Proposition 65, please visit www.oehha.ca.gov/prop65.html.
California Residents: If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
10. ARBITRATION / DISPUTE RESOLUTION
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of North Carolina without application of conflict of laws rules, except that the arbitration provisions shall be governed by the Federal Arbitration Act.
Resolution of Any Dispute. In the event a dispute arises between you and D2C (“Dispute”), we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer service department by emailing firstname.lastname@example.org or writing us at Taste of Home Roast, c/o D2C Ventures, LLC, 1750 Highway 160 W., Suite 104-260, Fort Mill, South Carolina, 29708. If a Dispute has not been resolved by negotiations within 90 days as provided hereinabove, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided hereinbelow. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. To the fullest extent permissible by law, none of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.
Limitation of Legal Remedies. IF THERE IS A DISPUTE THAT REMAINS UNRESOLVED, INSTEAD OF SUING IN COURT, YOU AND D2C EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO D2C’S INTELLECTUAL PROPERTY RIGHTS; STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE; INDEMNIFICATION; CONTRIBUTION; INTERPLEADER; OR INJUNCTIVE RELIEF ARISING OUT OF A CLAIM. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award are final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU AND D2C EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SERVICES.
Class Action Waiver. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU AND D2C EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you (to the fullest extent permissible by law) from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class Subscriber or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (a “Notice”). All Notices to D2C must be sent to the following address: The Program, c/o D2C Ventures, LLC, 1750 Highway 160 W., Suite 104-260, Fort Mill, South Carolina, 29708. All notices to you will be sent to the email or street address provided in your account, if available. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-day cure period, you or D2C may commence an arbitration proceeding. Unless otherwise agreed to by you and D2C in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the dispute, except that this section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and D2C agree that this section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of North Carolina, and for any non-frivolous claim that does not exceed $10,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. To the fullest extent permissible by law, neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, provincial/territorial or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
Exception to Arbitration. Any dispute, or action pertaining to D2C’s intellectual property rights and statutory claims that pursuant to law are not arbitrable.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with us must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
These Terms and policies incorporated herein are the entire agreement between you and D2C. They supersede any and all prior or contemporaneous agreements between you and D2C relating to your use of the Services. You may not assign your rights under your account to any third party without D2C’s prior written permission. D2C may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of D2C to partially or fully exercise any rights or the waiver of D2C of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by D2C or be deemed a waiver by D2C of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of D2C under these Terms and any other applicable agreement between you and D2C shall be cumulative, and the exercise of any such right or remedy shall not limit D2C’s right to exercise any other right or remedy.
12. RETURN POLICY
Unopened coffee may be returned for a full refund within 30 days of purchase. Requests for refunds must include unopened coffee, along with your Name, Address, Email Address, and Subscriber/Order Number (for verification of purchase date). Requests for refunds may be sent to:
Taste of Home Roast – Shipping Dept.
10020 Monroe Road Ste 170-225
Matthews NC 28105
13. CONTACT US
If you have any questions about these Terms you can email us at email@example.com or write to us at The Program, c/o D2C Ventures, LLC, 1750 Highway 160 W., Suite 104-260, Fort Mill, South Carolina, 29708.