Bean Box Terms of Service
Last Updated: July 9, 2020
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.
4.2 Authorization. You authorize Bean Box to charge all sums for the orders that you make and any level of Service you select or Products you order as described in these Terms or published by Bean Box, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Bean Box may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
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), as well as Canada. 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.
4.7 Returns, Exchanges, and Refunds. Bean Box’s returns, exchanges, and refund policy is available at https://beanbox.com/returns.
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.
4.10 Delinquent Accounts. Bean Box may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. Licenses
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Bean Box grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
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.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Bean Box an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
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.
8.2 Limited License Grant to Bean Box. By providing User Content to or via the Service, you grant Bean Box a worldwide, non-exclusive, irrevocable, royalty-free, fully paid, transferable right and license (with the right to sublicense) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
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.
8.4 User Content Representations and Warranties. Bean Box disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
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. Communications.
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. Digital Millennium Copyright Act
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.
11.2 Repeat Infringers. Bean Box will promptly terminate the accounts of users that are determined by Bean Box to be repeat infringers.
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.
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Bean Box may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. If Bean Box terminates your account, Bean Box will refund to you any prepaid but unused fees. You may terminate your account and these Terms at any time by contacting customer service at delight@beanbox.com or 888-923-8596.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Bean Box any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8.2, 13.3, 14, 15, 16, 17 and 18 will survive.
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.
15. Disclaimers; No Warranties
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.
16. Limitation of Liability
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. Dispute Resolution and Arbitration
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.
17.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within thirty (30) days of when such dispute arises by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Bean Box’s address for Notice is: Bean Box, Inc., 5050 First Avenue South, Suite #103, Seattle, WA 98134. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Bean Box may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Bean Box must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Bean Box in settlement of the dispute prior to the award, Bean Box will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
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.
17.7 No Class Actions. YOU AND BEAN BOX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Bean Box agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
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. Miscellaneous
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.
18.2 Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and Bean Box submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
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.
18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.6 Contact Information. The Service is offered by Bean Box, Inc., located at 5050 First Avenue South, Suite #103, Seattle, WA 98134. You may contact us by sending correspondence to that address or by emailing us at delight@beanbox.com. For more contact options, please visit https://beanbox.com/contact.
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.
