Bean Box Terms of Service
Last Updated: December 30, 2019
Welcome, and thank you for your interest in Bean Box, Inc. (“Bean
Box,” “we,” or “us”) and our website at beanbox.com, along
with our related websites, networks, applications, mobile applications, and
other services provided by us (collectively, the “Service”). These Terms
of Service are a legally binding contract between you and Bean Box regarding
your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING,
INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU
HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU
AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING BEAN BOX’S
PRIVACY POLICY, Subscription and
Cancellation Policy, Return, Exchange and Refund Policy, Loyalty Program Terms,
Proposition 65 Warning, Text Message Policy (COLLECTIVELY, THESE “TERMS”).
If you are not
eligible, or do not agree to the Terms, then you do not have our permission to
use the Service. YOUR USE OF THE SERVICE, AND BEAN BOX’S
PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY BEAN BOX AND BY
YOU TO BE BOUND BY THESE TERMS.
Arbitration
NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding,
individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND BEAN BOX ARE EACH
WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR
REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to
assert or defend your rights under this contract (except for matters that may
be taken to small claims court). Your rights will be determined by a NEUTRAL
ARBITRATOR and NOT a judge or jury. (See Section 17.)
1.
Bean Box Service Overview. Bean
Box offers coffee subscriptions and gifts from the world’s best artisan roasters
(“Products”).
2.
Eligibility. You must be at
least 13 years old to use the Service. By agreeing to these Terms, you
represent and warrant to us that: (a) you are at least 13 years old; (b) you
have not previously been suspended or removed from the Service; and (c) your
registration and your use of the Service is in compliance with any and all
applicable laws and regulations. If you are an entity, organization, or
company, the individual accepting these Terms on your behalf represents and
warrants that they have authority to bind you to these Terms and you agree to
be bound by these Terms.
3.
Accounts and Registration. To
access some features of the Service, you must register for an account. When you
register for an account, you may be required to provide us with some
information about yourself, such as your name, email address, or other contact
information. You agree that the information you provide to us is accurate and
that you will keep it accurate and up-to-date at all times. When you register, you
will be asked to provide a password. You are solely responsible for maintaining
the confidentiality of your account and password, and you accept responsibility
for all activities that occur under your account. If you believe that your
account is no longer secure, then you must immediately notify us at delight@beanbox.com.
4.
General Payment Terms. Certain
features of the Service may require you to pay fees, including fees charged for
purchase of Products. Before you pay any fees, you will have an opportunity to
review and accept the fees that you will be charged. All fees are in U.S.
Dollars and are non-refundable.
4.1
Price. Bean Box reserves the right to determine pricing for Products
and the Service. Bean Box will make reasonable efforts to keep pricing
information published on the website up to date. We encourage you to check our
website periodically for current pricing information. Bean Box may change the
fees for any feature of the Service or Product, including additional fees or
charges, if Bean Box gives you advance notice of changes before they apply. Bean
Box, at its sole discretion, may make promotional offers with different
features and different pricing to any of Bean Box’s customers. These
promotional offers, unless made to you, will not apply to your offer or these
Terms.
4.3
Product Orders. Your order constitutes an offer to purchase a
Product, and all orders are subject to Bean Box’s acceptance. Except to the
extent prohibited by applicable law, Bean Box may accept, decline, or place
limits on your order for any reason. You do, however, acknowledge that by
clicking on the “Purchase,” “Buy,” “Buy Now,” “Pay Now,” or other similar buttons,
you enter into an obligation to pay for the Products. Your order is complete
when Bean Box informs you that your shipment is ready. If Bean Box rejects your
offer, Bean Box will, as your sole and exclusive remedy and Bean Box’s sole and
exclusive liability, refund the amount you paid as described in Section 4.7. If you have any questions, comments, or concerns regarding Bean Box’s order
acceptance policy, or if you believe that your order was rejected in error,
please contact Bean Box at delight@beanbox.com
or visit https://beanbox.com/contact.
4.4
Title, Risk of Loss. Title to the Product will pass to you when
the Product is delivered to the carrier, after which all risk of loss or damage
to any Product will be yours.
4.5
Delivery. Bean Box will tell you when Products will ship both in
the shopping cart when placing an order and in your email receipt. Bean Box will
attempt in good faith to deliver the Product in accordance with your order or any
other schedule Bean Box may provide to you when placing the order, but Bean Box
will not be responsible or liable for any delays or failure in such delivery. Bean
Box expressly reserves the right to effect delivery of the Product ordered in
any number of separate shipments, the modes of transport, and carriers will be
decided at Bean Box’s discretion. During any period of shortage or backlog, Bean
Box may allocate its supply of the Product in any manner Bean Box deems
appropriate. Your order will be delivered to the delivery address you specify
when placing your order. Bean Box ships to all U.S. states and military
addresses (AE, AA, AP). In order to maintain the freshness of our Products, we
do not ship internationally, (including Canada), or to any U.S. territories or
protectorates. Upon request, Bean Box may ship corporate gift orders
internationally for an additional cost. Bean Box will not be responsible or
liable for any delay or failure to deliver due to any cause which is
unavoidable or beyond Bean Box’s reasonable control. In such cases, Bean Box will
have the right, at its option, without penalty or any liability for breach, to
terminate all or any part of any order or to reschedule delivery within a
reasonable time. For more shipping information, please visit our FAQs at https://delight.beanbox.com/kb/shipping.
4.6
Inspection. You should carefully examine all deliveries of the
Product upon delivery, and notify Bean Box of any alleged error, shortage,
defect, or non-conformity of the Product within 15 days after receipt. Your
failure to examine and report will, to the maximum extent permitted by applicable
law, constitute a waiver of any claim against Bean Box arising under these
Terms or by law with respect to any such error, shortage, defect, or
non-conformity reasonably discoverable by examination. You agree to make any
and all claims for damage or loss in transit against the carrier.
4.8
Product Information; Changes. While we have taken reasonable
steps to depict the Product as accurately as possible through the photographs
and other images featured on our websites, the detailing (such as color,
pattern, and texture) you see on-screen will depend on your monitor and, as
such, may not exactly reflect the actual detailing of a Product when you
receive it. In addition, Bean Box expressly reserves the right, at any time and
without notice, to discontinue or change any Product or the Service.
4.9
Subscription Service. If you activate a Subscription Service, it may
include automatically recurring payments for periodic charges (“Subscription
Service”), in which case you hereby authorize Bean Box to
periodically charge, on a going-forward basis and until cancellation of either
the recurring payments or your account, all accrued sums on or before the
payment due date for the accrued sums. The “Subscription Billing Date” is
the Friday before your order ships. If you have prepaid for several months, you
will be billed upon purchase for the initial term and the Subscription Billing
Date will be the Friday before the first shipment following the 3-month, 6-month,
or year anniversary of your purchase (whichever was selected during checkout).
For information on the “Subscription Fee”, please visit https://beanbox.com/coffee-subscriptions.
Your account will be charged automatically on the Subscription Billing Date all
applicable fees and taxes for the next subscription period. The subscription
will continue unless and until you cancel your subscription or we terminate it.
You must cancel your subscription before it renews in order to avoid billing of
the next periodic Subscription Fee to your account. We will bill the periodic
Subscription Fee to the payment method you provide to us during registration
(or to a different payment method if you change your payment information). Our
policy on cancellation is pretty simple: you need to cancel by 5 PM (PST) on
Thursday the week before your next scheduled shipment (every Wednesday). You
may cancel the Subscription Service by logging into your account, going to the
account section, selecting the item you wish to cancel, and selecting the
cancellation button within the details of the order, or by contacting us at: delight@beanbox.com.
5.2
License Restrictions. Except and solely to the extent such a
restriction is impermissible under applicable law, you may not: (a) reproduce,
distribute, publicly display, or publicly
perform the Service; (b) make modifications to the Service; or (c) interfere
with or circumvent any feature of the Service, including any security or access
control mechanism. If you are prohibited under applicable law from using the
Service, you may not use it.
6. Ownership;
Proprietary Rights. The Service is owned
and operated by Bean Box. The visual interfaces, graphics, design, compilation,
information, data, computer code (including source code or object code),
products, software, services, and all other elements of the Service (“Materials”) provided by Bean Box are protected by
intellectual property and other laws. All Materials included in the Service are
the property of Bean Box or its third party licensors. Except as expressly
authorized by Bean Box, you may not make use of the Materials. Bean Box
reserves all rights to the Materials not granted expressly in these Terms.
7.
Third Party Terms
7.1
Third Party Services and Linked Websites. Bean Box may provide
tools through the Service that enable you to export information, including User
Content, to third party services, including through features that allow you to
link your account on Bean Box with an account on the third party service, such
as Twitter, Instagram, or Facebook, or through our implementation of third
party buttons (such as “like” or “share” buttons). By using one of these tools,
you agree that Bean Box may transfer that information to the applicable third party
service. Third party services are not under Bean Box’s control, and, to the
fullest extent permitted by law, Bean Box is not responsible for any third
party service’s use of your exported information. The Service may also contain
links to third party websites. Linked websites are not under Bean Box’s control,
and Bean Box is not responsible for their content.
7.2
Third Party Software. The Service may include or incorporate
third party software components that are generally available free of charge
under licenses granting recipients broad rights to copy, modify, and distribute
those components (“Third Party Components”). Although the Service is
provided to you subject to these Terms, nothing in these Terms prevents,
restricts, or is intended to prevent or restrict you from obtaining Third Party
Components under the applicable third party licenses or to limit your use of Third
Party Components under those third party licenses.
7.3
Third-Party Advertisements and Promotions. The Service may run
advertisements and promotions from third parties or may otherwise provide
information about or links to third-party products or services on the Service.
Your business dealings or correspondence with, or participation in promotions
of, such third parties, and any terms, conditions, warranties or
representations associated with such dealings or promotions, are solely between
you and such third party. Bean Box is not responsible or liable for any loss or
damage of any sort incurred as the result of any such dealings or promotions or
as the result of the presence of third-party information on the Service.
8.
User Content
8.1
User Content Generally. Certain features of the Service may
permit users to upload content to or via the Service, including product reviews,
messages, photos, video, images, folders, data, text, and other types of works
(“User Content”) and to publish User Content on the Service. You will retain
any copyright and other proprietary rights that you may hold in the User
Content that you upload to the Service.
8.3
Limited License Grant to Other Users. By providing User Content to
or via the Service to other users of the Service, you grant those users a
non-exclusive license to access and use that User Content as permitted by these
Terms and the functionality of the Service.
a.
you are the creator and owner of the User Content, or have the necessary
licenses, rights, consents, and permissions to authorize Bean Box and users of
the Service to use and distribute your User Content as necessary to exercise
the licenses granted by you in this Section, in the manner contemplated by Bean
Box, the Service, and these Terms;
b.
your User Content, and the use of your User Content as contemplated by
these Terms, does not and will not: (i) infringe, violate, or misappropriate
any third party right, including any copyright, trademark, patent, trade
secret, moral right, privacy right, right of publicity, or any other
intellectual property or proprietary right; (ii) slander, defame, libel, or
invade the right of privacy, publicity or other property rights of any other
person; or (iii) cause Bean Box to violate any law or regulation; and
c.
your User Content could not be deemed by a reasonable person to be
objectionable, profane, indecent, pornographic, harassing, threatening,
embarrassing, hateful, or otherwise inappropriate.
8.5
User Content Disclaimer. We are under no obligation to edit or
control User Content that you or other users post or publish, and will not be
in any way responsible or liable for User Content. Bean Box may, however, at
any time and without prior notice, screen, remove, edit, or block any User
Content that in our sole judgment violates these Terms or is otherwise
objectionable. You understand that when using the Service you will be exposed
to User Content from a variety of sources and acknowledge that User Content may
be inaccurate, offensive, indecent, or objectionable. You agree to waive, and
do waive, any legal or equitable right or remedy you have or may have against Bean
Box with respect to User Content. If notified by a user or content owner that
User Content allegedly does not conform to these Terms, we may investigate the
allegation and determine in our sole discretion whether to remove the User
Content, which we reserve the right to do at any time and without notice. For
clarity, Bean Box does not permit copyright-infringing activities on the
Service.
8.6
Monitoring Content. Bean Box does not control and does not have
any obligation to monitor: (a) User Content; (b) any content made available by
third parties; or (c) the use of the Service by its users. You acknowledge and
agree that Bean Box reserves the right to, and may from time to time, monitor
any and all information transmitted or received through the Service for
operational and other purposes. If at any time Bean Box chooses to monitor the
content, Bean Box still assumes no responsibility or liability for content or
any loss or damage incurred as a result of the use of content. During
monitoring, information may be examined, recorded, copied, and used in accordance
with our Privacy Policy.
9.1
Text Messaging. Bean Box and those acting on our behalf may send
you text (SMS) messages at the phone number you provide us. These messages may
include operational messages about your use of the Service, as well as
marketing messages. You may opt out of receiving marketing and/or operational text
messages at any time by sending an email to delight@beanbox.com indicating that
you no longer wish to receive such texts along with the phone number of the
mobile device receiving the texts, or by replying “STOP” from the mobile device
receiving the messages. You may continue to receive text messages for a short
period while Bean Box processes your request, and you may also receive text
messages confirming the receipt of your opt-out request. Opting out of
receiving operational text messages may impact the functionality that the Service
provides to you. Text messages may be sent using an automatic telephone dialing
system. Your agreement to receive text messages is not a condition of any
purchase or use of the Service. Standard data and message rates may apply whenever
you send or receive such messages, as specified by your carrier. Please visit our
Text Message Policy at https://beanbox.com/about/sms for more information.
9.2
Push Notifications. When you install our app on your mobile
device, you agree to receive push notifications, which are messages an app
sends you on your mobile device when the app is not on. You can turn off
notifications by visiting your mobile device’s “settings” page.
9.3
Email. We may send you emails concerning out products and
services, as well as those of third parties. You may opt out of promotional
emails by following the unsubscribe instructions in the promotional email itself.
10.
Prohibited Conduct. BY USING THE
SERVICE YOU AGREE NOT TO:
a.
use the Service for any illegal purpose or in violation of any local,
state, national, or international law;
b.
violate, or encourage others to violate, any right of a third party,
including by infringing or misappropriating any third party intellectual
property right;
c.
interfere with security-related features of the Service, including by: (i)
disabling or circumventing features that prevent or limit use or copying of any
content; or (ii) reverse engineering or otherwise attempting to discover the
source code of any portion of the Service except to the extent that the
activity is expressly permitted by applicable law;
d.
interfere with the operation of the Service or any user’s enjoyment of
the Service, including by: (i) uploading or otherwise disseminating any virus,
adware, spyware, worm, or other malicious code; (ii) making any unsolicited
offer or advertisement to another user of the Service; (iii) collecting
personal information about another user or third party without consent; or (iv)
interfering with or disrupting any network, equipment, or server connected to
or used to provide the Service;
e.
perform any fraudulent activity including impersonating any person or
entity, claiming a false affiliation, accessing any other Service account
without permission;
f.
sell or otherwise transfer the access granted under these Terms or any
Materials (as defined in Section 6)
or any right or ability to view, access, or use any Materials;
g.
develop any third-party applications that interact with User Content and
the Services without our prior written consent;
h.
Attempt to indicate in any manner that you have a relationship with us
or that we have endorsed you or any products or services for any purpose; or
i.
attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this
Section 9.
11.1
DMCA Notification. We comply with the provisions of the Digital
Millennium Copyright Act applicable to Internet service providers (17 U.S.C.
§512, as amended). If you have an intellectual property rights-related
complaint about material posted on the Service, you may contact our Designated
Agent at the following address:
Bean Box, Inc.
ATTN: Matthew Berk (Copyright Notification)
5050 First Avenue South, Suite #103, Seattle, WA 98134
+1-888-923-8596
Email: legal@beanbox.com
Any notice alleging that materials
hosted by or distributed through the Service infringe intellectual property
rights must include the following information:
a.
an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright or other right being infringed;
b.
a description of the copyrighted work or other intellectual property
that you claim has been infringed;
c.
a description of the material that you claim is infringing and where it
is located on the Service;
d.
your address, telephone number, and email address;
e.
a statement by you that you have a good faith belief that the use of the
materials on the Service of which you are complaining is not authorized by the
copyright owner, its agent, or the law; and
f.
a statement by you that the above information in your notice is accurate
and that, under penalty of perjury, you are the copyright or intellectual
property owner or authorized to act on the copyright or intellectual property
owner’s behalf.
12. Modification
of these Terms. We reserve the right to
change these Terms on a going-forward basis at any time upon 7 days’ notice.
Please check these Terms periodically for changes. If a change to these Terms
materially modifies your rights or obligations, we may require that you accept
the modified Terms in order to continue to use the Service. Material
modifications are effective upon your acceptance of the modified Terms.
Immaterial modifications are effective upon publication. Disputes arising under
these Terms will be resolved in accordance with the version of these Terms that
was in effect at the time the dispute arose.
13.
Term, Termination and Modification of the Service
13.1
Term. These Terms are effective beginning when you accept the
Terms or first download, install, access, or use the Service, and ending when
terminated as described in Section 13.2.
13.4
Modification of the Service. Bean Box reserves the right to
modify or discontinue the Service at any time (including by limiting or
discontinuing certain Products or features of the Service), temporarily or
permanently, without notice to you. Bean Box will have no liability for any
change to the Service or Products or any suspension or termination of your
access to or use of the Service.
14. Indemnity. To the fullest extent permitted by law, you are
responsible for your use of the Service and Products, and you will defend and
indemnify Bean Box and its officers, directors, employees, consultants,
affiliates, subsidiaries and agents (together, the “Bean Box Entities”) from and against every claim brought by a third
party, and any related liability, damage, loss, and expense, including
reasonable attorneys’ fees and costs, arising out of or connected with: (a)
your unauthorized use of, or misuse of, the Service or Products; (b) your
violation of any portion of these Terms, any representation, warranty, or
agreement referenced in these Terms, or any applicable law or regulation; (c)
your violation of any third party right, including any intellectual property
right or publicity, confidentiality, other property, or privacy right; or (d)
any dispute or issue between you and any third party. We reserve the right, at
our own expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you (without limiting your
indemnification obligations with respect to that matter), and in that case, you
agree to cooperate with our defense of those claims.
YOU ARE SOLELY RESPONSIBLE FOR, AND
ASSUME ALL RISKS RELATED TO, THE PROPER HANDLING, PREPARATION, STORAGE, USE,
AND CONSUMPTION OF THE PRODUCTS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING
ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR
CONTENTS BEFORE HANDLING, PREPARING, USING, OR CONSUMING SUCH PRODUCTS.
THE SERVICE AND ALL MATERIALS AND
CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS
AVAILABLE” BASIS. BEAN BOX DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT
AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR
NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE,
OR TRADE. BEAN BOX DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE
SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE
UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BEAN BOX DOES NOT WARRANT THAT ANY OF THOSE
ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR BEAN BOX ENTITIES OR ANY
MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY
REGARDING ANY OF THE BEAN BOX ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY
STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT
FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND
AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND
RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY
(INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE
SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS
IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Bean Box does not
disclaim any warranty or other right that Bean Box is prohibited from
disclaiming under applicable law.
TO THE FULLEST EXTENT PERMITTED BY
LAW, IN NO EVENT WILL THE BEAN BOX ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR
RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE
SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY,
CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND
WHETHER OR NOT ANY BEAN BOX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF
DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE BEAN
BOX ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR
ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS,
WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE
AMOUNT YOU HAVE PAID TO BEAN BOX FOR ACCESS TO AND USE OF THE SERVICE IN THE 12
MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION
OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER
THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION
16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
17.1
Generally. In the interest of resolving disputes between you and Bean
Box in the most expedient and cost effective manner, and except as described in
Section 17.2 and 17.3, you and Bean Box agree that
every dispute arising in connection with these Terms or purchase of Products will
be resolved by binding arbitration. Arbitration is less formal than a lawsuit
in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may
allow for more limited discovery than in court, and can be subject to very
limited review by courts. Arbitrators can award the same damages and relief
that a court can award. This agreement to arbitrate disputes includes all
claims arising out of or relating to any aspect of these Terms, whether based
in contract, tort, statute, fraud, misrepresentation, or any other legal
theory, and regardless of whether a claim arises during or after the
termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND BEAN BOX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR
TO PARTICIPATE IN A CLASS ACTION.
17.2
Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise
limit the right of either party to: (a) bring an individual action in small
claims court; (b) pursue an enforcement action through the applicable federal,
state, or local agency if that action is available; (c) seek injunctive relief
in a court of law in aid of arbitration; or (d) to file suit in a court of law
to address an intellectual property infringement claim.
17.3
Opt-Out. If you do not wish to resolve disputes by binding arbitration,
you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter
to Bean Box, Inc., Attention: Legal Department – Arbitration Opt-Out, 5050
First Avenue South, Suite #103, Seattle, WA 98134 that specifies: your full
legal name, the email address associated with your account on the Service, and
a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once
Bean Box receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set
forth in Section 18.2. The remaining provisions of these Terms
will not be affected by your Opt-Out Notice.
17.4
Arbitrator. Any arbitration between you and Bean Box will be
settled under the Federal Arbitration Act and administered by the Judicial
Arbitration & Mediation Services, Inc. (“JAMS”) by a single
arbitrator in accordance with the rules of JAMS (“JAMS Rules”), which
rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/.
JAMS may be contacted at www.jamsadr.com. The arbitrator has exclusive
authority to resolve any dispute relating to the interpretation, applicability,
or enforceability of this binding arbitration agreement.
17.6
Fees. If you commence arbitration in accordance with these Terms,
Bean Box will reimburse you for your payment of the filing fee, unless your
claim is for more than $10,000, in which case the payment of any fees will be
decided by the JAMS Rules. Any arbitration hearing will take place at a
location to be agreed upon in King County, Washington, but if the claim is for
$10,000 or less, you may choose whether the arbitration will be conducted: (a)
solely on the basis of documents submitted to the arbitrator; (b) through a
non-appearance based telephone hearing; or (c) by an in-person hearing as
established by the JAMS Rules in the county (or parish) of your billing
address. If the arbitrator finds that either the substance of your claim or the
relief sought in the Demand is frivolous or brought for an improper purpose (as
measured by the standards set forth in Federal Rule of Civil Procedure 11(b)),
then the payment of all fees will be governed by the JAMS Rules. In that case,
you agree to reimburse Bean Box for all monies previously disbursed by it that
are otherwise your obligation to pay under the JAMS Rules. Regardless of the
manner in which the arbitration is conducted, the arbitrator must issue a
reasoned written decision sufficient to explain the essential findings and
conclusions on which the decision and award, if any, are based. The arbitrator
may make rulings and resolve disputes as to the payment and reimbursement of
fees or expenses at any time during the proceeding and upon request from either
party made within 14 days of the arbitrator’s ruling on the merits.
17.8
Modifications to this Arbitration Provision. If Bean Box makes
any future change to this arbitration provision, other than a change to Bean
Box’s address for Notice of Arbitration, you may reject the change by sending
us written notice within 30 days of the change to Bean Box’s address for Notice
of Arbitration, in which case your account with Bean Box will be immediately
terminated and this arbitration provision, as in effect immediately prior to
the changes you rejected will survive.
17.9
Enforceability. If Section 17.7
or the entirety of this Section 17
is found to be unenforceable, or if Bean Box receives an Opt-Out Notice from
you, then the entirety of this Section 17
will be null and void and, in that case, the exclusive jurisdiction and venue
described in Section 18.2 will govern any action arising out of
or related to these Terms.
18.1
General Terms. These
Terms, together with the Privacy Policy and any other agreements expressly
incorporated by reference into these Terms, are the entire and exclusive
understanding and agreement between you and Bean Box regarding your use of the
Service. You may not assign or transfer these Terms or your rights under these
Terms, in whole or in part, by operation of law or otherwise, without our prior
written consent. We may assign these Terms at any time without notice or
consent. The failure to require performance of any provision will not affect
our right to require performance at any other time after that, nor will a
waiver by us of any breach or default of these Terms, or any provision of these
Terms, be a waiver of any subsequent breach or default or a waiver of the
provision itself. Use of section headers in these Terms is for convenience only
and will not have any impact on the interpretation of any provision. Throughout
these Terms the use of the word “including” means “including but not limited to”.
If any part of these Terms is held to be invalid or unenforceable, the
unenforceable part will be given effect to the greatest extent possible, and
the remaining parts will remain in full force and effect.
18.3
Privacy Policy. Please read the Bean
Box Privacy Policy at https://beanbox.com/privacy
carefully for information relating to our collection, use, storage, disclosure
of your personal information. The Bean Box Privacy Policy
is incorporated by this reference into, and made a part of, these Terms.
18.7
Notice to California Residents. If you are a California resident,
under California Civil Code Section 1789.3, you may contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202,
Sacramento, California 95834, or by telephone at (800) 952-5210 in order to
resolve a complaint regarding the Service or to receive further information
regarding use of the Service.
18.8
No Support. We are under no obligation to provide support for the
Service. In instances where we may offer support, the support will be subject
to published policies.
18.9
International Use. The Service and Products are intended for
visitors located within the United States. We make no representation that the
Service or Products are appropriate or available for use outside of the United
States. Access to the Service from countries or territories or by individuals where
such access is illegal is prohibited.
19. Notice
Regarding Apple. This Section 19 only
applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and
Bean Box only,
not with Apple Inc. (“Apple”), and
Apple is not responsible for the Service or the content
thereof. Apple has no obligation to furnish any
maintenance and support services with respect to
the Service. If the Service fails to conform to any
applicable warranty, you may notify Apple and Apple will refund any applicable
purchase price for the mobile application to you; and, to the maximum extent
permitted by applicable law, Apple has no other warranty obligation with
respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the
Service or your possession and/or use of the
Service, including: (a) product liability
claims; (b) any claim that the Service fails to conform to any applicable
legal or regulatory requirement; or (c) claims arising under consumer
protection or similar legislation. Apple is not responsible for the
investigation, defense, settlement and discharge of
any third party claim that the Service and/or your
possession and use of the Service
infringe a third party’s intellectual property rights. You agree to comply with
any applicable third party terms when using the Service. Apple and Apple’s
subsidiaries are third party beneficiaries of these Terms, and upon your
acceptance of these Terms, Apple will have the right (and will be deemed to
have accepted the right) to enforce these Terms against you as a third party
beneficiary of these Terms. You hereby represent and warrant that: (i) you
are not located in a country that is subject to a U.S. Government embargo, or
that has been designated by the U.S. Government as a “terrorist supporting”
country; and (ii) you are not listed on any U.S. Government list of
prohibited or restricted parties.
