These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms. HBC reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
2. Eligibility The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (b) 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.
3. Registration, Account and Communication Preferences To access and use certain areas or features of the Sites, you will need to register for an account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account. By creating a HBC account, you also consent to receive electronic communications from HBC. These communications may include notices about your account and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Package Subscriptions; Continuous Subscriptions; Cancellation Policy Subscriptions. We offer different subscription plans based on a monthly, quarterly or semiannual payment plan options. Subscriptions will renew automatically if not cancelled timely.
Continuous Subscriptions. WHEN YOU REGISTER FOR A SUBSCRIPTION PLAN, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) HBC (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU BASED ON THE TYPE OF SUBSCRIPTION SIGNED UP FOR (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, (B) THE AMOUNT YOU ARE CHARGED AND THE NUMBER OF MONTHS MAY VARY DEPENDING ON THE PREFERENCES YOU SELECT, AND (C) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS.
Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME. ANY ORDER IDENTIFIED AS “ORDER PROCESSED” OR “SHIPPED” ON YOUR UPCOMING PAGE, HAS BEEN PROCESSED AND CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION. In the event you cancel your Subscription, please note that we may still send you promotional communications about HBC, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2. Payment and Billing Information By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Order. If you want to change or update your payment method information, you can do so at any time by logging into your account. If a payment is not successfully settled and you do not edit your payment method information or cancel your Subscription, or account, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated. You acknowledge that the amount billed may vary due to, preferences you select, changes you make to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
4.3. Pricing and Availability All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with our various subscription plans, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of ingredients, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies. All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients) without prior notice.
4.4. Taxes We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.5. Shipping and Handling You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third party courier. Shipping times shown on the Sites are estimates only. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. Products purchased from us, the risk of loss of such Product passes to you upon the fulfillment of the delivery of such Product to the courier, and when you purchase a Product that is fulfilled by us title to and the risk of loss of such Product passes to you upon the third party courier’s delivery of such Product to you.
4.6. Deliveries You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. You should always inspect your delivery to confirm that the ingredients arrive in good condition. To maintain the quality and integrity of the Products, we recommend that you follow the U.S. Department of Agriculture’s (“USDA”) instructions on food safety (click here). You should always follow the USDA’s instructions on safe food handling (click here). We also recommend that all cooking instructions be followed and that you use a food thermometer to ensure that all items are cooked to the recommended temperatures. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible.
4.7. No Resale You are not permitted to resell or otherwise use the Products for commercial purposes.
4.8. Returns, Replacements, Refunds, and Credits If you are dissatisfied with a boxed product, please contact us at [INSERT EMAIL ADDRESS FOR CONTACT] within seven (7) days of the date you received the delivery. Depending on the circumstances, , replace the delivered products at our expense, provide you a full or partial refund of the purchase price for that delivery or ingredient(s), or provide you with Credits for that box or ingredient that will automatically be applied to future deliveries under your Subscription. We may require the return or photographic documentation of any unopened package or unused ingredient, or Product, that you are dissatisfied with before we provide you a refund, replacement, or Credit.
5. License to Access and Use Our Sites and Content Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the HBC logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content, other files and the selection and arrangement thereof (collectively, “Content”) become the property of HBC once loaded, as applicable, and are protected by U.S. and international copyright laws. HBC will, at its sole discretion, have the right to repost or use the loaded content as part of their marketing activities or in any such way it deems appropriate without your consent and you as the user understand and acknowledge that you will not have a right to compensation by HBC for such use. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any intellectual property or other proprietary rights of HBC or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time. Notwithstanding anything to the contrary in these Terms, may include software components provided by a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below: Name of Designated Agent: Homemade Bakers Co. Address: 29 Clemens Rd., Fleetwood, PA 19522 Phone: Fax: Email: Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
7. Trademarks “Homemade Bakers”, the HBC logo and any other products or service names, logos or slogans that may appear on the Sites or Products are trademarks of HBC and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by HBC.
8. Third Party Content We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such third party content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
9. User Conduct You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not: • Engage in any harassing, threatening, intimidating, predatory or stalking conduct; • Use or attempt to use another user’s account without authorization from such user and HBC; • Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner; • Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites; • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access; • Develop any third party applications that interact with User Content or the Sites without our prior written consent; • Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; or • Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms. By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following: • User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; • User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; • User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; • User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; • User Content that impersonates, or misrepresents your affiliation with, any person or entity; • User Content that references or depicts HBC or our Products but fails to disclose a material connection to us, if you have one; • User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations; • User Content that contains any private or personal information of a third party without such third party’s consent; • User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or • User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose HBC or others to any harm or liability of any type. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
10. Rights in User Content If you submit content you own, you retain your ownership of your intellectual property rights. We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Facebook page, Instagram page or Twitter feed), you hereby grant HBC a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes. By uploading, posting or submitting User Content to HBC through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is non-confidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize HBC to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
11. Indemnification To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless HBC, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “HBC”), from and against all actual or alleged HBC or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Sites, Content or Products by you or any third party you authorize to access or use such Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify HBC of any third party Claims, cooperate with the HBC in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the HBC shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and HBC.
12. Disclaimers YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. 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. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING SOME OF THE MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, PEANUTS AND/OR TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER. EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. HBC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
13. Limitation of Liability; Release TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HBC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY HBC REPRESENTATIVE OR SITE CONTENT, OR FROM EVENTS BEYOND HBC’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 HBC’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 HBC REPRESENTATIVES OR AFFILIATED ENTITIES OR VENDORS (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF INGREDIENTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE HBC’S PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE HBC FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH HBC PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” THE LIMITATIONS SET FORTH IN THIS SECTION 13 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE HBC FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH HBC PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THE USE, PREPARATION, PROCESSING OR CONSUMPTION OF ANY OF THE INGREDIENTS, GOODS BAKED OR PREPARED BY YOU OR ANYONE RELATED TO YOU THAT ARE PROVIDED UNDER YOUR HBC SUBSCRIPTION OR MEMBERSHIP, INCLUDING BUT NOT LIMITED TO ALLERGIES OR FOOD POISONING. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” THE LIMITATIONS SET FORTH IN THIS SECTION 13 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.
14. Modifications to the Sites and Products We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time.
15. Dispute Resolution; Arbitration PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HBC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
15.1. Binding Arbitration Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of this terms and conditions or 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, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and HBC agree (a) to waive your and HBC’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and HBC’s respective rights to a jury trial. Instead, you and HBC agree to arbitrate Disputes through binding arbitration.
15.2. No Class Arbitrations, Class Actions or Representative Actions You and HBC agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and HBC 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 representative proceeding. You and HBC agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and HBC agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
15.3. Federal Arbitration Act You and HBC agree that these Terms may affect interstate commerce and that the enforceability of this Section 16 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law. If you reside within the Commonwealth of PA the arbitration proceedings will be governed by 42 Pa.C.S.A. §7342 et. Seq..
15.4. Notice; Informal Dispute Resolution You and HBC agree that each party will notify the other party in writing of any claims Dispute subject to arbitration, within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to HBC shall be sent by certified mail or courier to Homemade Bakers Co., Attn: Claims Department, 29 Clemens Rd., Fleetwood, PA 19522. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your HBC 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 in accordance with Section 3 and will include (i) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that we are seeking. If you and HBC 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 HBC may, as appropriate and in accordance with this Section 16, commence an arbitration proceeding or, to the extent specifically provided for in Section 16.1, file a claim in court.
15.5. Process EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR 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, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND HBC AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR HBC WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND HBC WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and HBC agree that (a) any arbitration will occur in the Commonwealth of Pennsylvania, County of Berks, City of Reading, (b) arbitration will be conducted confidentially through the Berks County Bar Association ADR program, by a single arbitrator in accordance with the rules of 42 Pa.C.S.A. §7342 et. Seq., or Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”),if diversity of jurisdiction between the parties exist, which are hereby incorporated by reference, and (c) that the Court of Common Pleas or Magisterial Court where HBC sits, in the County of Berks, City of Reading or Fleetwood, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
15.6. Authority of Arbitrator As limited by the FAA of 42 PaC.S.A. §7342 et. Seq., and these Terms, 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. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
15.7. Severability If any term, clause or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 16 will remain valid and enforceable. Further, the waivers set forth in Section 16.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
15.8. Opt-Out Right You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: Homemade Bakers Co., Attn: Claims Department, 29 Clemens Rd., Fleetwood, PA 19522. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
16. Governing Law and Venue These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflict of law rules or principles (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court of Fleetwood, PA, shall be resolved in the state or federal courts of the Commonwealth of Pennsylvania and the United States, respectively, sitting in the Commonwealth of Pennsylvania, County of Berks, City of Reading.
17. Termination Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. Any products prepaid at the time of termination will be delivered in accordance to the terms prevailing at the time of cancelation.
18. Severability If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
19. Survival The following sections will survive the expiration or termination of these Terms and the termination of your HBC account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), 10 through 20.
20. Miscellaneous These Terms constitute the entire agreement between you and HBC relating to your access to and use of the Sites and your subscription package to orders, receipts and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without HBC’s prior written consent. No waiver of the enforcement of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
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