Terms & Conditions
1. AGREEMENT TO TERMS
Welcome to Cultural Candy and our website accessible at www.culturalcandy.com. Cultural Candy, which encompasses all transactions and interactions both on this website and in any off-website engagements, is a trade name of Mishkin Enterprises LLC (hereinafter referred to as "Mishkin Enterprises", "we", "our", "us", or "the Company"). The Site, along with the COMMUNITY SITE https://www.sweetexchanges.com (collectively, the "Sites"), are owned and operated by Mishkin Enterprises LLC. These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity ("you") and Mishkin Enterprises LLC ("Company", "we", "us", or "our"), concerning your access to and use of the Sites, as well as any transactions or interactions you may have with Cultural Candy outside of these Sites. By accessing the Sites or engaging with Cultural Candy in any capacity, you affirm that you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITES AND ENGAGING WITH CULTURAL CANDY OFF-SITE, AND YOU MUST DISCONTINUE USE AND ENGAGEMENT IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Sites from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the "Last updated" date of these Terms of Use, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Sites so that you understand which Terms apply. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Sites after the date such revised Terms of Use are posted.
The information provided on the Site(s) is/are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Sites from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES THROUGH COMMERCIAL NEGOTIATIONS OR VIA BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLANTIFF OR CLASS MEMBER IN ANY PURPROTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST US. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS DECISION.
Age Restrictions
The Sites are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Sites.
THESE TERMS OF USE ALSO APPLY TO ALL THE MERCHANDISING CHANNELS OF THE COMPANY AND ITS AFFILIATES, INCLUDING, BUT NOT LIMITED TO, THE INTERNET, TELEPHONE, CATALOG, RADIO, TELEVISION, MOBILE DEVICE, SOCIAL MEDIA AND PHYSICAL RETAIL SALES. BY ACCESSING ANY OF THE COMPANY MERCHANDISING CHANNELS, AND AREAS OF THE SERVICE, YOU AGREE TO BE LEGALLY BOUND, AND TO ABIDE BY THESE TERMS OF USE.
2. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site(s) is/are/are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Sites (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Sites “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Sites and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Sites, you are granted a limited license to access and use the Sites and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Sites the Content, and the Marks.
3. USER REPRESENTATIONS
By using the Sites you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Sites through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Sites for any illegal or unauthorized purpose; (7) your use of the Sites will not violate any applicable law or regulation; and (8) you acknowledge and understand that our target market includes specific consumer segments, such as consumers with dietary restrictions, and that we provide information on dietary restrictions based on data received from manufacturers, but we do not independently verify or create this information ourselves.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Sites (or any portion thereof).
4. USER REGISTRATION
You may be required to register with the Site(s). By registering, you may be eligible to participate in our rewards program and referral program, which offer exclusive benefits and incentives. Detailed information about these programs, including how to earn and redeem points or account credits, can be found on the designated sections or pages on the Site(s).
You agree to keep your password confidential and will be responsible for all use of your account and password. You agree to (a) immediately notify us of any known or suspected unauthorized access to your account and password, or (b) any known or suspected breaches of security, including loss, theft, or unauthorized disclosure of your personal information. We will not be liable for any injury, loss or damages of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts of omission by you and/or someone else using your account or password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
5. MARKETING AND PROMOTIONS
Cultural Candy uses various marketing channels and strategies to promote its products and services, including email marketing, social media marketing, influencer partnerships, and other promotional activities. We may offer promotional offers, discounts, and special events from time to time at our sole discretion. These promotions are subject to specific terms and conditions, which will be made available to customers at the time of the promotion. We reserve the right to modify, suspend, or terminate any promotion, discount, or special event at any time without notice. Cultural Candy is not responsible for any loss or damage resulting from the participation or inability to participate in any promotion, discount, or special event.
6. PRODUCTS AND SERVICES
Cultural Candy is a retail company that does not manufacture, package, or operate as a commercial carrier for products. As a result, the Company bears no responsibility or liability for any Product manufacturer's or Product Distributor's acts or omissions, nor does it bear any responsibility or liability for any Product manufacturer's or Product Distributor's preparation or safety of the Products.
Product Images and Descriptions
We make every effort to display the colors, features, specifications, and details of the products available on the Sites as accurately as possible. However, we do not guarantee the accuracy, completeness, reliability, or currency of this information, and your electronic display may not accurately reflect the actual colors and details of the products.
Dietary Restrictions and Ingredients
Cultural Candy offers items designated for specific dietary restrictions based on information received from Product Manufacturers and/or Product Distributors. All items are stored and/or processed in a facility that also handles key allergens, and Cultural Candy is not responsible for consumption or cross-contamination of these items. Customers with severe food sensitivities or allergies should contact the manufacturer directly to confirm the safety of the product. All content related to dietary restrictions and ingredients is provided for informational purposes only, and we do not represent or warrant its accuracy, completeness, reliability, or currency, including ingredient, nutritional, and allergen information. If you are unsure if a product contains an ingredient that may cause an allergic reaction, do not eat it.
Product Expiration and Best By Dates:
Best by dates on our products are not expiration dates, and candies and chocolates are often safe to consume well past these dates. We do not accept returns or exchanges for products past their best by dates, as they are considered safe to eat.
Candy Plan™ / Collection Boxes
Candy Plan™ boxes will contain the guaranteed quantity of full-size products as outlined in the product listing. While we use commercially reasonable efforts to maintain the assortment, we may make changes to the assortment offered in the box due to availability or other issues. The assortment of boxes is at the sole discretion of Cultural Candy and is subject to change at any time.
Sweet Spot™: Not a Gift Card
Sweet Spot™ can be used to send out Products to various recipients. Recipients have one year or 365 days from the date of delivery to redeem the gift, after which the eGift’s value will be refunded to the purchaser using the original payment method.
Shipping
third-party common commercial carrier will deliver all products, and title and risk of loss transfer to you upon delivery to the carrier. Cultural Candy is not responsible for any items lost, stolen, melted, damaged, or destroyed during the shipping process, including melting, spoilage, breakage, or other damage to perishable and fragile goods during transit.
International Shipping:
Cultural Candy is committed to shipping products worldwide, subject to applicable taxes and duties. We encourage customers to consult their local customs officials or tax advisors for specific information on importing products in their respective countries.
Warm Weather Disclaimer:
Cultural Candy is not responsible for any melting or damage that occurs as a result of heat exposure during shipping. Our company may have restrictions on the sale or shipment of temperature-sensitive products during warmer months, and we have implemented policies and procedures to minimize the risk of melting or spoilage during shipping. Some candies may be heat sensitive. Ice packs can be purchased for shipments prone to melting, but their inclusion does not guarantee the contents will arrive in good condition.
To report damages to a delivery, email help@culturalcandy.com within 24 hours of delivery with your Order ID and photos of the damage. A claim may need to be filed with the shipping provider and retaining damaged products and/or packaging may be required. Information about filing a claim is not a guarantee that the claim will be accepted. Cultural Candy will not issue refunds or replacements for items becoming stale, spoiling, or melting in transit.
Product Availability
All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason, and prices for all products are subject to change.
7. PURCHASES AND PAYMENT, FEES, TAXES
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Sites as well as any other sales channels we utilize, including Google Product feeds, social media platforms such as Facebook and Instagram, pop-up retail locations, temporary retail spaces, mobile retail units, or any other events and locations we may choose to sell our products. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.
We accept the following forms of payment:
· Visa
· Mastercard
· American Express
· Discover
· Diners
· Apple Pay
· Google Pay
Our company uses Stripe as a third-party payment processor to securely process payments made by our customers. Stripe is one of the most reputable payment processors in the industry and is used by many companies worldwide. We do not store your payment card details. That information is provided directly to our third-party payment processor, who uses your personal information and is governed by their own Privacy Policy. These payment processors adhere to standards set by PCI-DSS as managed by the PCI Security Standards Council, which is a joint effort of brands like Visa, Mastercard, American Express, and Discover. PCI-DSS requirements help ensure the secure handling of payment information.
You acknowledge and agree that: (a) Cultural Candy will process payments using the preferred payment method designated in your account (b) the prices for items displayed through the Sites and other sales channels may differ from the prices offered or published by sellers for the same items and/or prices available on third-party website and that such prices may not be the lowest prices at which the items are sold; (c) we reserve the right to change such prices at any time, at our sole discretion; (d) you are responsible for payment of all fees displayed through the Sites and other sales channels, which fees we may change at any time in our sole discretion; (e) you are liable for all applicable taxes; if your organization is tax-exempt, taxes will be removed only after a Certificate of Exemption is received by our team; (f) charges paid by you for completed and delivered orders are final and non-refundable; and (g) we have no obligation to provide refunds or credits, but may issue them, in each case in our sole discretion.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Sites or other sales channels. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis.
Cultural Candy may offer promotional offers at its sole discretion. These offers are subject to this Agreement and any specific terms outlined by the Company for such offers. Promotional offers are valid only for the intended recipients and cannot be redeemed for cash or cash equivalents. Cultural Candy reserves the right to withhold or deduct credits or benefits obtained through a promotion if it determines that the redemption was made in error, was fraudulent, illegal, or in violation of the applicable promotional terms.
Cultural Candy, in its sole discretion, may make promotional offers whose features, terms, and rates are specific to the users specified in the offers ("The Offerees"). These promotional offers are subject to the terms of this Agreement and are valid only for the Offerees. You acknowledge and agree that promotional offers: (a) may only be used by the Offerees for the intended purposes and in a lawful manner; (b) may not be combined or used in combination with other offers; (c) may not be duplicated, sold, or transferred in any manner, or made available to the general public, unless express permission is given by the Company; (d) are subject to any additional specific terms outlined by the Company for such promotional offer; (e) cannot be redeemed for cash or cash equivalent; and (f) are not valid for use after the date indicated on the offer.
Cultural Candy reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Cultural Candy determines or believes that the redemption of the promotional offer and/or credit was made in error, was fraudulent, illegal, or in violation of the applicable promotional terms of this or the specific Promotional Agreement. Cultural Candy reserves the right to modify and/or cancel an offer or credit at any time.
In addition to the Sites our company plans to sell products through various sales channels, including Google Product feeds and social media platforms such as Facebook and Instagram. We may also utilize alternative sales channels to sell our products, such as setting up pop-up retail locations at farmer's markets or other events, renting temporary retail spaces in malls or other venues, or creating a mobile retail unit, such as a candy van, to sell our products at various events and locations.
Our company does not currently have any wholesale distribution arrangements in place, but we may explore the possibility of partnering with wholesale distributors to expand our reach and customer base in the future.
By placing an order through the Sites or any other sales channels, you acknowledge and agree to these purchase and payment terms, as well as the terms and conditions outlined in this Agreement.
8. SHIPPING AND DELIVERY
Cultural Candy ships out goods from Monday to Thursday. Our standard shipping is sent via UPS/USPS ground and may take between 2-8 business days to arrive for US customers. Certain products and amounts spent may qualify US customers for free shipping. However, customers that choose priority or express shipping will be required to pay additional shipping costs. Expedited and/or international shipping fees are excluded from any promotional offer, even if not explicitly outlined in the promotion itself.
Packages sent via Priority or Express shipping are sent by air either via USPS/UPS/FedEx and can take between 1-4 days to be delivered to US customers. For residents of Canada, packages may take up to 10 business days to arrive once shipped. International shipments outside of Canada may take up to 15 or more business days to arrive once shipped.
We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We also reserve the right to adjust shipping fees and delivery timelines based on the destination and other relevant factors.
By placing an order with Cultural Candy, you acknowledge that shipping and delivery times are provided as general guidelines and that actual delivery times may vary. Furthermore, you agree that Cultural Candy is not responsible for any delays or damages that may occur during shipping, and that any issues arising from shipping should be addressed directly with the relevant shipping carrier.
Please ensure that the shipping address provided at the time of placing your order is accurate and complete. Cultural Candy is not responsible for any delays or additional charges resulting from an incorrect or incomplete shipping address. If a package is returned to us due to an incorrect or incomplete address, you may be responsible for any additional shipping fees required to resend the package.
While we strive to provide accurate shipping estimates and timely delivery, we cannot guarantee delivery times,
or dates. Delivery times may vary due to factors outside of our control, such as carrier delays, weather conditions, or other unforeseen circumstances. Cultural Candy is not responsible for any damages, losses, or inconveniences resulting from delayed or failed deliveries.
Customers are responsible for providing accurate shipping information, and we are not liable for packages lost or returned due to incorrect or incomplete addresses provided by the customer. In the event of damage, breakage, melting, or spoilage during transit, we are not responsible for issuing refunds or replacements. Customers must report any such issues directly to the shipping carrier and follow their procedures for filing claims.
Cultural Candy is not responsible for any missing packages marked as delivered by the shipping carrier. Customers are advised to file missing package claims with the carrier directly. We will not be held liable for any losses or damage that may result from packages being marked as delivered, but not received by the customer.
By using our services and accepting these terms and conditions, customers acknowledge their responsibility for the safe arrival and acceptance of their orders. They also agree not to dispute any payment to Cultural Candy with their bank or card issuer due to non-receipt of goods or for any other reason, for packages marked as delivered by the shipping carrier.
To maintain the quality and integrity of the Products, we recommend that you follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety which can be found here <insert link>. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper handling, preparation, storage, use and consumption of the Products following delivery.
9. RETURN/REFUNDS POLICY
Cultural Candy wants you to be happy with your purchase. If your purchase is unsatisfactory, please contact us at help@culturalcandy.com so that we can review the issues you are having with the purchase.
RETURNS
All return/refund requests must be made within 5 business days of receipt of your order (determined by UPS/FedEx/3rd Party tracking) AND must be authorized prior by Cultural Candy. Cultural Candy only accepts returns of non-edible items that have not been worn or used.
A 20% restocking fee may be applied to your returns. Please send your pre-approved returns to the following address:
Cultural Candy 4777 Leyden St. Denver, CO 80216
Please note that no refunds will be issued for products returned without approval.
As noted, food products cannot be returned, and we will not refund for melting or damage during shipping. If we make any mistakes with your order, please ensure that we are contacted within 5 business days of receiving your order, as we will be unable to approve any requests after this time.
REFUSAL OF PACKAGE:
If a parcel is refused, original and return shipping costs may be charged to the purchaser's original form of payment if it is determined that the refusal was a result of an error caused by the User.
CANCELLATIONS:
For changes to an existing order, customers must email help@culturalcandy.com within 30 minutes of placing the order, including changes to a shipping address or a request to cancel the order. The subject of the email or live chat must include the order number. Changes may be subject to additional fees, and there is no guarantee that the changes requested will be made or the order canceled. Canceled orders are subject to a restocking fee equal to 10% of the order total.
MISSING ITEMS:
In the event your shipment has a missing item for which you were billed, a claim must be submitted within 2 business days of physical receipt as determined by the 3rd party carrier. The Company and/or carrier may require that a comparison of the physical weight of the package is compared against the packing list/ order contents in order to issue a credit or to ship the missing item(s).
SHIPPING ERROR / INCORRECT ITEMS:
Shipping errors are infrequent; however, they can occur. Please be prepared to evidence the shipping error. We will use our best efforts to ship the correct product in a timely fashion. In all cases, we will ship the correct items at the shipping service level at which it was purchased.
We will not issue refunds or replacements for missing packages marked as delivered by the shipping carrier or file missing package claims for any packages marked as delivered by the shipping carrier under any circumstances.
Refunds may only be issued if a claim is successfully settled with the shipping provider, or the package arrives back at Cultural Candy’s warehouse in good condition. Shipping fees, including return shipping on orders eligible for Free Shipping, are non-refundable. If eligible for a refund, a restocking fee equal to 10% of the order total will apply. Seasonal items are non-refundable under any circumstances. If the order is returned to Cultural Candy marked return to sender, we will contact the customer to make alternate shipping arrangements. If there is no response within seven calendar days, the order will be considered abandoned and ineligible for a refund under any circumstances.
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MISSING ITEMS:
In the event your shipment has a missing item for which you were billed, a claim must be submitted within 2 business days of physical receipt as determined by the 3rd party carrier. The Company and/or carrier may require that a comparison of the physical weight of the package is compared against the packing list/ order contents in order to issue a credit or to ship the missing item(s).
SHIPPING ERROR / INCORRECT ITEMS:
Shipping errors are infrequent; however, they can occur. Please be prepared to evidence the shipping error. We will use our best efforts to ship the correct product in a timely fashion. In all cases, we will ship the correct items at the shipping service level at which it was purchased. If there is an error in the shipment, please contact help@culturalcandy.com as soon as possible and include your order number in the subject line. We will work with you to rectify the issue and ensure that the correct items are sent to you.
DAMAGED ITEMS:
If you receive a damaged item, please contact us at help@culturalcandy.com within 5 business days of receiving your order. Include your order number in the subject line and provide a description of the damage, along with any supporting documentation, such as photos. We will review your claim and, if necessary, send you a replacement or issue a refund, depending on the circumstances.
Please note that we are not responsible for damage caused by the shipping carrier or due to weather conditions. We recommend choosing expedited shipping options during extreme weather conditions to minimize the risk of damage.
10. CUSTOMER SUPPORT
Cultural Candy is committed to providing exceptional customer support. We offer multiple customer support channels, including email, phone, and live chat services. Our goal is to address customer complaints, inquiries, and special requests promptly and professionally. However, we cannot guarantee the resolution of every issue to the customer's satisfaction. We are not liable for any damages, losses, or inconveniences that may result from the use of our customer support services or any information provided through such services.
11. PROHIBITED ACTIVITIES
Cultural Candy strives to provide a safe and enjoyable experience for all users of our Site(s). In order to maintain this standard, you agree not to use the Sites for any purpose other than that for which it is intended. The Sites may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Sites, you agree not to:
· Systematically retrieve data or other content from the Sites to create or compile, directly or indirectly, a collection, compilation, database, or directory without our prior written permission.
· Attempt to trick, defraud, or mislead us or other users of the Sites particularly in any attempt to learn sensitive account information such as user passwords.
· Circumvent, disable, or otherwise interfere with security-related features of the Sites including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Sites and/or the Content contained therein.
· Disparage, tarnish, or otherwise harm our reputation or the Sites in our opinion.
· Use any information obtained from the Sites to harass, abuse, or harm another person.
· Make improper use of our support services or submit false reports of abuse or misconduct.
· Use the Sites in a manner inconsistent with any applicable laws or regulations.
· Engage in unauthorized framing of or linking to the Site(s).
· Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material that interferes with any party’s uninterrupted use and enjoyment of the Sites or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site(s).
· Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
· Delete the copyright or other proprietary rights notice from any Content.
· Attempt to impersonate another user or person or use the username of another user.
· Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
· Interfere with, disrupt, or create an undue burden on the Sites or the networks or services connected to the Site(s).
· Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Sites to you.
· Attempt to bypass any measures of the Sites designed to prevent or restrict access to the Sites or any portion of the Site(s).
· Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code. Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site(s).
· Use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Sites or using or launching any unauthorized script or other software.
· Use a buying agent or purchasing agent to make purchases on the Site(s).
· Make any unauthorized use of the Sites including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or creating user accounts by automated means or under false pretenses.
· Use the Sites as part of any effort to compete with us or otherwise use the Site(s).
12. USER GENERATED CONTRIBUTIONS
The Sites may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Sites including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Sites and may be used to enhance the user experience and provide personalized recommendations to users, including search filters that allow users to refine their candy selections based on various criteria, wishlists that enable users to save items for later purchase, and a "saved for later" feature that allows users to keep track of items they may wish to purchase in the future. Our website also includes a product quiz that enables users to receive personalized candy recommendations based on their preferences and past purchasing behavior. We may also use data collected from user browsing and purchasing behavior to offer personalized recommendations and improve the user experience.
When you create or make available any Contributions, you thereby represent and warrant that:
· The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
· You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Sites, and other users of the Sites to use your Contributions in any manner contemplated by the Sites and these Terms of Use.
· You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Sites and these Terms of Use.
· Your Contributions are not false, inaccurate, or misleading.
· Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
· Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
· Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
· Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
· Your Contributions do not violate any applicable law, regulation, or rule.
· Your Contributions do not violate the privacy or publicity rights of any third party.
· Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
· Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
· Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
· Any use of the Sites in violation of the foregoing violates these Terms of Use and may result in, among other things, termination, or suspension of your right to use the Site(s).
13. UNSOLICITED INFORMATION
Please be advised that we do not accept, review, or consider unsolicited ideas, suggestions, proposals, comments, or materials, including but not limited to creative ideas, inventions, concepts, designs, or artwork (collectively, "Unsolicited Information"). This policy is in place to avoid any misunderstandings or disputes if our products or services appear similar to ideas submitted by users.
By submitting any Unsolicited Information to us, you acknowledge and agree that: (a) we have no obligation to review, consider, or implement any Unsolicited Information; (b) we assume no responsibility or liability for any Unsolicited Information, even if it is similar to any products, services, or materials we may develop or offer in the future; (c) we are under no obligation to maintain the confidentiality of any Unsolicited Information, nor compensate you or anyone else for the use of any Unsolicited Information; and (d) you grant us an unrestricted, irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to use, modify, reproduce, distribute, display, perform, and create derivative works from any Unsolicited Information for any purpose, without any compensation, credit, or notice to you or any third party.
By submitting any Unsolicited Information, you represent and warrant that: (a) you have all necessary rights, licenses, and permissions to submit and share the Unsolicited Information; (b) the Unsolicited Information does not infringe or misappropriate any intellectual property rights, privacy rights, or any other rights of any third party; (c) the Unsolicited Information does not contain any libelous, defamatory, obscene, offensive, or otherwise unlawful material; and (d) the submission of the Unsolicited Information does not violate any applicable laws, regulations, or the terms of this Agreement.
If you wish to protect your ideas, inventions, or other intellectual property, we encourage you to consult with legal counsel before submitting any Unsolicited Information to us or any other party.
14. CONTRIBUTION LICENSE
By posting your Contributions to any part of the Sites for making Contributions accessible to the Sites by linking your account from the Sites to any of your social networking accounts, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
You retain full ownership of all of your Contributions and any intellectual property rights, or other proprietary rights associated with your Contributions. We do not assert any ownership over your Contributions. However, by making any Contribution, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and sublicensable license to use, copy, modify, create derivative works based on, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Contributions in all formats and distribution channels now known or hereafter devised (including in connection with the Sites and our business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You acknowledge that we may retain copies of your Contributions and that we may continue to use, store, and maintain them, even if you or we terminate your account or these Terms of Use. You represent and warrant that your Contributions are original to you, that you have the right to submit them to us, and that your Contributions do not violate the rights of any third party.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions and we are not responsible for their accuracy, completeness, or integrity. You are solely responsible for your Contributions to the Sites, and you expressly agree to indemnify us and hold us harmless from any and all liability arising from your Contributions.
15. GUIDELINES FOR REVIEWS
We may provide you areas on the Sites to leave reviews, ratings, photos, and videos. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to review, including any photos and videos submitted with the review, on our social media channels as well as our community website www.sweetexchanges.com.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review.
16. SOCIAL MEDIA
As part of the functionality of the Sites you may link your account with online accounts you have with third-party service providers (each such account, a “Third-Party Account”) by either: (1) providing your Third-Party Account login information through the Site; or (2) allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent and warrant that you are entitled to disclose your Third-Party Account login information to us and/or grant us access to your Third-Party Account, without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account, and without obligating us to pay any fees or making us subject to any usage limitations imposed by the third-party service provider of the Third-Party Account. By granting us access to any Third-Party Accounts, you understand that (1) we may access, make available, and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “Social Network Content”) so that it is available on and through the Sites via your account, including without limitation any friend lists and (2) we may submit to and receive from your Third-Party Account additional information to the extent you are notified when you link your account with the Third-Party Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Site(s). Please note that if a Third-Party Account or associated service becomes unavailable or our access to such Third-Party Account is terminated by the third-party service provider, then Social Network Content may no longer be available on and through the Site(s). You will have the ability to disable the connection between your account on the Sites and your Third-Party Accounts at any time.
We may provide you with the option to use social media features on the Sites such as the Facebook Like button, and other widgets or interactive mini programs that run on the Site(s). These features may collect your IP address, which page you are visiting on the Sites and may set a cookie to enable the feature to function properly. Social media features and widgets are either hosted by a third party or hosted directly on the Site(s). Your interactions with these features are governed by the privacy policy of the company providing it.
You may also choose to participate in certain activities on our social media pages or website that allow you to upload or post user-generated content, such as comments, photos, and videos (collectively, “UGC”). If you submit UGC to us, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any UGC that you post on or in connection with our social media pages or website in any manner we choose, including, but not limited to, on our website or other digital platforms, for advertising or other promotional purposes, and in any other medium now known or later developed. You acknowledge and agree that you are solely responsible for any UGC you submit, and you represent and warrant that you have all rights necessary to grant us the license described above.
We may also provide you areas on the Sites to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory.
17. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Sites("Submissions") provided by you to us are non-confidential and should become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original to you or that you have the right to submit such Submissions.
You agree to comply with our specific rules, guidelines, and restrictions regarding user-generated content. Users may not post or submit any harassing, obscene, or offensive content. Additionally, any content submitted to us must be usable by our company without requiring us to pay the user for their content. You also agree not to submit any content that infringes on any third-party intellectual property rights, including copyrights, trademarks, or patents.
By submitting content to us, you are agreeing to grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content in any media or form. This right includes the ability to use the content for marketing or promotional purposes.
We reserve the right to remove any user-generated content that violates our rules, guidelines, or restrictions or that we deem inappropriate for any reason. Users may be subject to legal action if their content violates any laws or regulations, including intellectual property laws.
You acknowledge and agree that we have no obligation to use any Submissions you may provide and may choose to disregard them for any reason. However, if we do use your Submissions, you agree that we may do so without any compensation to you.
18. THIRD-PARTY WEBSITES CONTENT, AND PARTNERSHIPS
The Sites may contain (or you may be sent via the Site to the COMMUNITYSITE) links to other website ("Third-Party Website") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Website and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Website accessed through the Sites or any Third-Party Content posted on, available through, or installed from the Sites including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Website or the Third-Party Content.
Inclusion of, linking to, or permitting the use or installation of any Third-Party Website or any Third-Party Content does not imply approval or endorsement thereof by us. Cultural Candy may partner with third-party services or companies, such as advertisers, affiliates, or sponsors, in order to drive traffic to our sites and increase engagement with our customers. These partnerships may involve sharing customer data, including personal information, with these third-party partners. If you decide to leave the Sites and access the Third-Party Website or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Sites or relating to any applications you use or install from the Site(s). Any purchases you make through the Third-Party Website will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Website and you shall hold us harmless from any harm caused by your purchase of such products or services.
Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites or any partnerships or agreements with third-party services, advertisers, affiliates, or sponsors. Our company does not have any current exclusive partnerships or agreements with specific candy suppliers or manufacturers. However, we reserve the right to enter into such agreements in the future if it is deemed beneficial to our business.
19. ADVERTISERS
We allow advertisers to display their advertisements and other information in certain areas of the Site(s), such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Sites and any services provided on the Sites for products sold through those advertisements. Further, as an advertiser, you warrant and represent that you possess all the rights and authority to place advertisements on the Sites including, but not limited to, intellectual property rights, publicity rights, and contractual rights. As an advertiser, you agree that such advertisements are subject to our Digital Millennium Copyright Act (“DMCA”) Notice and Policy provisions as described below, and you understand and agree there will be no refund or other compensation for DMCA takedown-related issues. We simply provide the space to place such advertisements, and we have no other relationship with advertisers.
20. SITES MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Sites for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Sites or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Sites in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and/or the COMMUNITY SITE .
21. PRIVACY POLICY
We care about data privacy and security. By using the Site to the COMMUNITYSITE, you agree to be bound by our Privacy Policy posted on the Sites which is incorporated into these Terms of Use. Please be advised the Site and/or the COMMUNITY SITE are hosted in the United States. If you access the Site to the COMMUNITYSITE from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Sites you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.
22. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
Notifications
We respect the intellectual property rights of others. If you believe that any material available on or through the Sites infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Sites infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Sites are covered by the Notification, a representative list of such works on the Site; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
(5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Counter Notification
If you believe your own copyrighted material has been removed from the Sites as a result of a mistake or misidentification, you may submit a written counter notification to [us/our Designated Copyright Agent] using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled; (2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located; (3) a statement that you will accept service of process from the party that filed the Notification or the party's agent; (4) your name, address, and telephone number; (5) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or
disabled; and (6) your physical or electronic signature.
If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney's fees. Filing a false Counter Notification constitutes perjury.
Designated Copyright Agent Copyright Compliance Department Attn: Copyright Agent
4777 Leyden St
Denver, CO 80216 United States
23. TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Site(s). WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITESAND THE COMMUNITY SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITESAND THE COMMUNITY SITE SOR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
24. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Sites at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site(s). We also reserve the right to modify or discontinue all or part of the COMMUNITY SITE without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the COMMUNITY SITE.
We cannot guarantee the Site and/or the COMMUNITY SITE will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Sites resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site and/or the COMMUNITY SITE at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site and/or the COMMUNITY SITE during any downtime or discontinuance of the Site and/or the COMMUNITY SITE. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the COMMUNITY SITE or to supply any corrections, updates, or releases in connection therewith.
25. GOVERNING LAW
These Terms of Use and your use of the Site and the COMMUNITY SITE are governed by and construed in accordance with the laws of the State of Colorado applicable to agreements made and to be entirely performed within the State of Colorado, without regard to its conflict of law principles.
26. DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each "Dispute" and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY
TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will decide in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Denver, Colorado. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Denver, Colorado, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.
In no event shall any Dispute brought by either Party related in any way to the Sites be commenced more than one year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
27. CORRECTIONS
There may be information on the Sites that contains typographical errors, inaccuracies, or omissions that may relate to the COMMUNITY SITE including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Sites at any time, without prior notice.
28. DISCLAIMER
THE SITESAND THE COMMUNITY SITE SARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITESAND THE COMMUNITY SITE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITES THE MARKETPLACE OFFERINGS, AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT, THE MARKETPLACE OFFERINGS, OR THE CONTENT OF ANY WEBSITE LINKED TO THIS SITESAND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITESAND THE MARKETPLACE OFFERINGS, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITES (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITESBY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE(S). WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES ANY HYPERLINKED WEBSITES OR ANY WEBSITEOR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
29. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US OR $100.00 USD. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
30. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Sites or the Marketplace Offerings; (3) breach of these Terms of Use; (4) any breach of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; (6) any overt harmful act toward any other user of the Site and/or the COMMUNITY SITE with whom you connected via the Sites or the Marketplace Offerings. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
31. USER DATA
We collect, store, and share user data in accordance with our Privacy Policy. We will maintain certain data that you transmit to the Sites for the purpose of managing the performance of the Sites as well as data relating to your use of the Site(s). This includes the use of cookies and sites tracking technologies. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site(s). You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
32. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Sites sending us emails, and completing online forms such as search filters, wishlists, product quizzes, and personalized recommendations constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Sites satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO THE ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE(S). You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
33. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
34. MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Sites or in respect to the Sites constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Terms of Use or use of the Site(s). You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
35. CONTACT US
In order to resolve a complaint regarding the Sites or to receive further information regarding use of the Sites please contact us at:
By Mail:
Mishkin Enterprises LLC
Cultural Candy
4777 Leyden St
Denver, CO 80216 United States
By Email:
By Phone:
1-800-303-4209
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