Welcome to SNACKWITH Market! These Terms of Service (“Terms”) govern your use of the SNACKWITH Market website, www.snackwithmarket.com (the “Site”), any SNACKWITH Market mobile application (the “App” and together with the Site, the “Platform”), and any features, content, products and other services offered by SNACKWITH Market (collectively, the “Services”). THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS, PROHIBITS CLASS ACTION CLAIMS, AND SECTION 21 AND SECTION 25 LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
The Platform and Services are owned by SNACKWITH Market, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. We grant you a personal, limited, non-transferable, nonexclusive license to access and use the Platform and Services. We reserve the right, in our sole discretion and without notice to you, to revise the products and offers available on the Platform or the Services and to change, suspend or discontinue any aspect of the Platform or Services and we will not be liable to you or to any third party for doing so.
You agree that by purchasing a membership or placing an order on the Platform and agreeing to these Terms, you are entering into a binding contract with SNACKWITH Market and agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred, including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions (as such term is defined in Section 9 below).
If you have any questions about these Terms or need assistance, we encourage you to review our Frequently Asked Questions (“FAQs”) or contact our team at email@example.com or visit our Contact Us page for other ways to connect with us.
Section 1 – Use of Services
You may use the Services only for your own non-commercial personal use and in compliance with these Terms. You are responsible for your own communications, including the transmission, uploading or posting of information to the Services and are responsible for the consequences of such communications. Any other use of the Services requires the prior written consent of SNACKWITH Market. You may not otherwise copy, modify, or distribute the contents of the Services without the prior written consent of SNACKWITH Market. You may not modify, publish, transmit, participate in the transfer of, sell, create derivative works from, or in any way exploit any of the content found on the Services, in whole or in part.
You may not use the Services for any of the following purposes:
- Posting, communicating or transmitting any material that infringes on any intellectual property, publicity, or privacy right of another person or entity;
- Engaging in any harassing, threatening, intimidating, predatory, or stalking conduct;
- Posting any information which is untrue, inaccurate, or not your own;
- Using or attempting to use another user’s account without authorization from such user and SNACKWITH Market;
- Using the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Site, the App, and Services in any manner;
- Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation;
- Attempting to interfere in any way with the Platform, SNACKWITH Market’s network security, or attempting to use the Services to gain unauthorized access to any other computer system;
- Using the Services to drop ship merchandise to third parties;
- Purchasing in bulk for resale;
- Purchasing products for commercial use or in connection with distribution via a commercial meal service (e.g. school cafeteria; school snacks, etc.); and
- Using the Service or shipping products outside the United States.
Section 2 – SNACKWITH Market Membership
In order for you to take advantage of the Services, you will be required to sign up for a SNACKWITH Market Membership (a “Membership”). All Membership Fees are paid in advance for the Membership Term; such term will vary based on the initial membership period you selected, i.e. 1 year, 1 month, etc. (the “Membership Term”).
AUTOMATIC RENEWAL TERMS: All Memberships renew automatically for the Membership Term, at the then-current Membership rate, until you cancel. By purchasing a Membership, you agree and acknowledge that your Membership has an initial prepayment feature for the selected period of Service, and a recurring Membership Fee at the then-current Membership rate for your selected Membership Term, which will be charged to you on each Membership anniversary until you cancel. You accept responsibility for all recurring charges prior to cancellation, including any charges processed by SNACKWITH Market after the expiration date of your payment card, where applicable.
CANCELLATION POLICY FOR MEMBERSHIPS: You may cancel your Membership at any time by contacting our Member Services team at firstname.lastname@example.org. Upon cancellation you will not be charged for any subsequent renewal periods and your Membership will not continue past the then current Membership Term. However, all Membership Fees paid prior to termination of your Membership are non-refundable and you shall be responsible for any charges for the Membership prior to your cancellation.
CHANGES TO MEMBERSHIP PRICE: We reserve the right to adjust pricing for our Memberships, Services, or any components thereof in any manner and at any time in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your Membership Fees will take effect following notice to you.
- Trial Membership Offers
SNACKWITH Market may offer free trial Memberships (“Free Trial”). The terms and conditions of such Free Trial will be communicated to you when you sign up for the Free Trial.
AUTOMATIC RENEWAL FOR TRIAL PERIODS: Once your Free Trial ends, we will begin billing your designated payment method the then-current Membership Fee (plus any applicable taxes and other charges) on a recurring basis for your Membership Term you’ve selected (plus any applicable taxes and other charges) for your Membership Term, or if you did not preselect a Membership Term, until you cancel your Membership.
CANCELLATION POLICY FOR TRIAL PERIODS: You may cancel your Free Trial at any time prior to the end of your applicable trial period by contacting Member Services via our FAQs. Please note that you may not receive a notice from us that your Free Trial has ended or that the paid portion of your Membership has begun.
Section 3 – Modification of Service or Terms; Errors
SNACKWITH Market reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service.
- Typographical Errors
We reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order was submitted and accepted). In the event that a product sold is mistakenly listed at an incorrect price or an incorrect amount is charged to your payment card, SNACKWITH Market reserves the right to refuse or cancel any orders placed for the product, whether or not the order has been confirmed and your payment method charged. If your payment method has already been charged for the purchase and your order is cancelled, SNACKWITH Market shall issue a credit to your payment method account.
Section 4 – Prices & Savings
- Prices & Reference Prices
Prices for Services and any products made available through the Services are subject to change without notice.
Our Services utilize reference prices, such as “Compare At” or other similar phrases, throughout the Platform to estimate the quality and price information from comparable vendors and to show the non-sale price difference of our products (“Reference Prices”). Reference Prices do not imply or guarantee that a customer cannot purchase the product at a lower cost with a different vendor, and may not necessarily reflect the prevailing market price of a product. We do not guarantee the accuracy of such materials and information. Our Services rely on the Reference Prices and your purchasing behavior to estimate a customer’s projected savings. All prices and savings, including Reference Prices and projected savings, of products described or depicted on the Platform are subject to change at any time without notice. Although we make efforts to maintain the accuracy of information maintained on our Platform, including pricing information and product details, we may occasionally make errors in the stated prices on the Platform. If there is an error, we will in our discretion attempt to correct the mistake.
- Savings Estimates & Calculations
Our Platform and Services estimate projected savings for each customer based on their purchasing history and the Reference Prices of previously purchased items and items likely to be purchased. All projected and stated savings are solely estimates and are subject to change at any time without notice. We make no guarantees that a customer will save the projected amount.
Section 5 – Your Consent to Receive Emails, Text Messages & Other Communications
You expressly consent to receive and accept communications from SNACKWITH Market, including via e-mail, push notifications, text messages (together, “Communications”) or other comparable means at any of the e-mail addresses and/or telephone numbers you provide. You agree that we may send such Communications for any transactional, customer service, order, or other account- or order-related matters, and, as applicable, for advertising, marketing or promotional purposes or other purpose you requested or consented too (i.e. out of stock reminders). The messaging frequency will vary. If you consent to receive marketing-related text messages, YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXT MESSAGES AS A CONDITION OF PURCHASING ANY GOODS OR SERVICES. IF YOU WISH TO OPT OUT OF SNACKWITH Market MARKETING COMMUNICATIONS OR TEXT MESSAGES FROM US, YOU AGREE TO OPT OUT BY FOLLOWING ANY UNSUBSCRIBE INSTRUCTIONS PROVIDED TO YOU IN THOSE COMMUNICATIONS. EVEN IF YOU OPT OUT OF MARKETING COMMUNICATIONS OR TEXT MESSAGES, WE MAY STILL SEND YOU OTHER ESSENTIAL COMMUNICATIONS DIRECTLY RELATED TO YOUR ACCOUNT OR ORDERS. In response to our text messages, you may Reply HELP for help. Reply STOP to unsubscribe. Standard text messaging and data charges will apply to text messages we may send.
Section 6 – Promotions and Offers
From time to time, we may provide promotions or offers for qualified customers (“Promotions”), such as sales, special discounts, and free gift with purchase. Promotions may be subject to separate terms and conditions. In addition, for some products and services exclusions may apply. All Promotions are valid through their stated expiration dates, may be limited to specific quantities, are valid while supplies last, are limited to quantities on hand, are limited to one per customer, are not applicable towards the purchase of gift cards or memberships, and may not apply to certain merchandise. Any required spend amount refers to the purchase price of eligible products and does not include tax. Certain exclusions or other restrictions may be determined and communicated by SNACKWITH Market in its sole discretion. No substitutions or cash redemption is available. SNACKWITH Market reserves the right to make the final decision with respect to any redemption or fulfillment of any Promotion in its sole discretion. You agree to abide by the terms and conditions of any Promotion and acknowledge that circumvention of the terms and conditions of any such Promotion is an unauthorized or fraudulent act. You will be liable for damages caused by any such unauthorized or fraudulent act, and SNACKWITH Market reserves the right to charge the payment method in your account an amount equal to such damages. All Promotions are subject to cancellation or modification at any time.
Free Gift with Purchase(s) (“GWP”) is a type of Promotion, where we offer a gift(s) with a qualifying order. In order to receive the GWP, you must meet the minimum order value or other stated requirement(s). See the applicable GWP terms for more details about the specific value. Selection and value of gifts may vary. We reserve the right to cancel or modify the GWP Promotion at any time and for any reason, with or without prior notice. GWP Promotions cannot be combined with any other gift with purchase offers.
Section 7 – Gift Cards & Gift Memberships
The SNACKWITH Market eGift Card (also known as an “Store Credit” or “Gift Card”) program allows a person (“gifter”) to purchase and send a virtual SNACKWITH Market Gift Card to another person (“recipient”). You can complete your purchase using a credit card, debit card, or other electronic payment methods. Your eGift will be delivered the same day to the recipient, provided that your payment form is approved, or at a future date chosen by the gifter. All eGift recipients must have a valid credit card to redeem their gift. For privacy reasons, we’re unable to notify the gifter if a recipient has received or redeemed their eGift; however, we encourage gifters to check with recipients directly.
The value of eGifts are not transferable to another payment method.
- SNACKWITH Market Shopping Credit eGift
When purchasing an eGift for SNACKWITH Market shopping credits, you may choose among designated dollar value options (within certain limits). The recipient can redeem the eGift for SNACKWITH Market shopping credit by visiting the link in the gift email. eGifts may be combined with promotional coupons and other gift cards at checkout. eGift shopping credits may not be used to purchase additional gift cards or to pay for Membership fees.
The application of the shopping credit eGift to your account differs depending on your current status with SNACKWITH Market, whether you are (i) new user/prior member, (ii) trial member, or (iii) active member:
- New User/Prior Member: If you are a new user or a prior member (cancelled or no longer active), redeeming your eGift will require you to sign up for a Membership. Upon redemption, the eGift balance will be applied to your account and appear on your next purchase at checkout.
- Trial Member: As a trial user, you may receive an eGift during your trial membership. Upon redemption, the eGift balance will be applied to your account and appear on your next purchase at checkout. If you choose to cancel your membership, your balance will be refunded to a gift card.
- Active Member: As an active SNACKWITH Market member, your eGift will be applied to your account and will appear on your next purchase at checkout. If there is a balance on your gift card and you choose to cancel your membership, your balance will be refunded to a gift card.
General Terms for Gift Cards & Gift Memberships
SNACKWITH Market is not responsible and assumes no liability for nondelivery of an email because of an invalid address, spam filters, or any other reason. SNACKWITH Market is not responsible for loss or misuse of Gift Membership access codes. Gift Memberships have no cash value or other value and can only be used to access the Site during the eGift term. A Gift Membership may be cancelled by the recipient at any time, but no refunds will be issued. Unless prohibited by law, no refunds will be provided for Gift Cards. These gift programs are subject to change or withdrawal without advance notice.
Section 8 – Accuracy, Completeness, and Timeliness of Information
We are not responsible if information made available on the Services is not accurate, complete, or current.
All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Services are subject to change at any time without notice.
Section 9 – Accuracy of Billing and Account Information
When you sign up for a Membership or purchase any product or service made available through the Services (each such purchase, a “Transaction”), you agree to provide current, complete, and accurate purchase and account information. You agree to promptly update your account and other information, including your email address and credit card account information, expiration dates and shipping address, so that we can complete your Transactions and contact you as needed.
You may only have one Membership per household. If you have obtained multiple promotional discounts as a result of setting up multiple Memberships for a single household, we may charge you the difference for any products purchased with a discount obtained in violation of these Terms. We shall have the sole discretion to cancel your Membership, modify any orders that you have placed through the Services, and refuse any order you place with us.
In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email 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 represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
Section 10 – Additional Terms and Conditions; Risk of Loss; Return Policy
- Additional Terms & Conditions
You agree that additional terms and conditions may apply to specific products, orders, or use of certain portions of the Services, including with respect to ordering and shipping policies, review guidelines, return policy, and refer-a-friend programs (“Additional Terms”), which Additional Terms are made part of these Terms by reference. If there is a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
- Risk of Loss
All purchases of physical items from SNACKWITH Market are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier (i.e delivery services, such as Federal Express, USPS, etc).
- Return Policy
As an online market, we rely on shipping to service our members and due to our commitment to reducing our carbon footprint, we do not accept returns of any item once it ships.
Section 13 – Optional Tools or Links
We may provide you with access to third-party tools or links over which we neither monitor nor have any control or 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. Any use of optional tools or links is entirely at your own risk and discretion, and we shall have no liability whatsoever arising from or relating to your use of such optional third-party tools.
Section 14 – User Comments, Feedback, and other Submissions
If you send to us user-generated content, such as photos, videos, creative ideas, suggestions, proposals, plans, or other materials (exclusive of your personally identifiable information), whether online (via our website or any of our social media accounts (Facebook, Instagram, etc), by email, postal mail, text message or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use those Comments in any medium. We are and shall be under no obligation (a) to maintain any Comments in confidence; (b) to pay compensation for any Comments; or (c) to respond to any Comments.
We may but have no obligation to monitor, edit or remove content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that: (i) your Comments will not violate any right of any third party, including copyright, trademark, privacy, personality, or other personal or proprietary right; and (ii) we disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy. 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 Services or any related website. You are responsible for all Comments you contribute in any manner to the Services, and you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute them. You are responsible for all your activity in connection with the Services, and you agree that we may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Section 15 – Services Not for Minors
The Services are not targeted toward or intended for use by anyone under the age of 16. By agreeing to these Terms, you represent that you (a) are 16 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one SNACKWITH Market account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
Section 16 – Copyright Infringement
If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to SNACKWITH Market’s Designated Agent, whose contact details are listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that SNACKWITH Market is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number, and email address;
- A statement that the notifier has a good faith belief that the material identified is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
- terminate such content provider’s access to the Services if he or she is a repeat offender.
Please contact SNACKWITH Market’s Designated Agent at the following address:
SNACKWITH Market, Inc.
Attn: General Counsel
2201 Ray Drive
Burlingame, CA 94010
Section 11 – Personal Information
Section 12 – Disclaimer – No Professional Advice
Any information provided by us regarding the products or otherwise (e.g. product descriptions, promotional videos, blog posts, or instructions) is for informational purposes only. You should not take any action based upon any information contained on the Services. Use of the Services is not meant to serve as a substitute for professional advice. You should read and strictly follow all product labels, packaging inserts, and instructions and all manufacturer directions and warnings and seek independent professional advice when appropriate.
YOU SHOULD ALWAYS SPEAK WITH A HEALTHCARE PROFESSIONAL BEFORE TAKING ANY DIETARY, NUTRITIONAL, HERBAL, OR HOMEOPATHIC SUPPLEMENT OR EVEN CERTAIN FOODS. SNACKWITH Market does not warrant and shall have no liability for information provided in the Services regarding recommendations concerning supplements for any and all health purposes. This information is provided solely as a guideline to be used when discussing a program with a healthcare professional. The claims made about specific nutrients or products have not been evaluated by the FDA. Dietary supplements are not intended to diagnose, treat, cure or prevent disease.
Section 13 – Taxes
Your total price will include the price of the product plus any applicable sales tax; such state and local sales taxes are based on the shipping address and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states where goods sold over the Internet are taxable.
Section 20 – Prohibited Uses
In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Services 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 Services 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; (k) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet; or (l) in a manner inconsistent with, or in violation of, these Terms. We reserve the right to terminate your use of the Services or any related website for any reason, in our sole discretion and with or without notice to you.
Section 14 – Disclaimer of Warranties; Limitation of Liability
SNACKWITH Market attempts to display information on the Services as accurately as possible. However, SNACKWITH Market does not guarantee or make any representations or warranties concerning any content contained in or accessed on the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (i) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT (ii) ANY WARRANTIES THAT ARISE FROM TRADE USAGE, OR (iii) THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT IN CASES OF WILLFUL MISCONDUCT AND RECKLESS CONDUCT ON THE PART OF SNACKWITH Market, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL SNACKWITH Market BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM SNACKWITH Market, OR FROM EVENTS BEYOND SNACKWITH MARKET’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SNACKWITH Market’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SNACKWITH Market ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO SNACKWITH Market IN CONNECTION WITH THE SERVICES IN THE PRECEDING TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE SNACKWITH Market’S SOLE LIABILITY AND OBLIGATION, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS, OR RECKLESS MISCONDUCT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SNACKWITH Market AND YOU.
Section 15 – Indemnification
You agree to indemnify and hold SNACKWITH Market and its affiliates, directors, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to (a) your illegal use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms, (c) your posting of any defamatory or infringing content on the Site or App, and (d) your violation of any third-party rights in connection with your use of the Services. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Section 16 – Assignment
Section 17 – Termination
The obligations and liabilities incurred prior to the termination of your Membership or use of our Services shall survive the termination of these Terms for all purposes. Account termination may result in deletion of any content associated with your account, so keep that in mind before you decide to terminate your use of the Services.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we may terminate your Membership and access to the Services at any time without notice and you will remain liable for all amounts due up to and including the date of termination.
Section 18 – Dispute Resolution and Arbitration Agreement
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER IN THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SNACKWITH MARKET AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings arising out of or related to these Terms, the Services or products sold on the Services, or to your relationship with SNACKWITH Market (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and SNACKWITH Market agree (a) to waive your and SNACKWITH Market’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, content or products, resolved in a court, and (b) to waive your and SNACKWITH Market’s respective rights to a jury trial. Instead, you and SNACKWITH Market agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions: You and SNACKWITH Market agree that any Dispute arising out of or related to these Terms, the Services or products sold on the Services is personal to you and SNACKWITH Market and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of consolidated or representative proceeding. SNACKWITH Market and you further agree to not participate in any class, consolidated or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. These limitations and waiver of class, consolidated, or representative proceedings shall apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of SNACKWITH Market, and shall survive any termination of your account or the Services.
If it is determined that the limitations and waiver of class, consolidated, or representative proceedings set forth in this section title are void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the Disputes will not be subject to arbitration and must be litigated in federal court located in San Mateo, California.
If any other clause in the limitations and waiver of class, consolidated, or representative proceedings set forth in this section title are found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
Notice; Informal Dispute Resolution
You and SNACKWITH Market agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within six (6) months of (i) the date it arises or (ii) the date they knew or should have known, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to SNACKWITH Market shall be sent by certified mail, courier or email to SNACKWITH Market, Inc., Attn: General Counsel, 2201 Ray Drive, Burlingame, CA 94010 or to email@example.com. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your SNACKWITH Market account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically. If you and SNACKWITH Market cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or SNACKWITH Market may, as appropriate and in accordance with this Section, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in court.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, YOU AND SNACKWITH MARKET AGREE THAT ANY ARBITRABLE DISPUTE MUST BE COMMENCED OR FILED BY YOU OR SNACKWITH Market WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND SNACKWITH Market WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and SNACKWITH Market agree that any arbitration will be conducted confidentially in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The arbitration will be conducted via telephonic/video hearing in a manner consistent with the JAMS rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. The parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Mateo County, California, or the Central District of California to enter judgment upon any award.
As limited by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other SNACKWITH Market users, and cannot be used to decide other disputes with other users.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, SNACKWITH Market will pay the additional cost. SNACKWITH Market shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney’s fees and expert witness costs unless SNACKWITH Market is specifically required to pay such fees under applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the Terms by writing to: SNACKWITH Market, Inc., Attn: Legal Department, 2201 Ray Drive, Burlingame, CA 94010.. The opt out notice must include your full name and email address and clearly indicate your intent to opt out of binding arbitration.
Subject to the section title “No Class Arbitrations, Class Actions or Representative Actions,” above, if any part or parts of this Arbitration Agreement in this Section are found to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Section 19 – Choice of Law and Venue
These Terms and your relationship with SNACKWITH Market are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any Disputes arising from or relating to these Terms, the Services or products sold on the Services, or to your relationship with SNACKWITH Market shall be finally settled in arbitration in San Mateo County, California, in English to the extent required by Section 25. The arbitration will be conducted via telephonic/video hearing in a manner consistent with the JAMS rules. The parties agree to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Mateo County, California, or the Central District of California to resolve any Disputes not subject to arbitration —i.e., those either party seeks to bring as an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property. You and SNACKWITH Market agree that these Terms affect interstate commerce and that the enforceability shall be both substantively and procedurally governed by and construed and enforced in accordance with the FAA, to the maximum extent permitted by applicable law.
Section 20 – Miscellaneous
The failure of either you or SNACKWITH Market to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
Section 28 – Contact Information
Questions about the Terms should be sent to us at:
SNACKWITH Market, Inc.
2201 Ray Drive
Burlingame, CA 94010
Attn: Member Services