Olive & Cocoa, LLC (“Olive & Cocoa”, “we”, “us” and “our”) provides the website oliveandcocoa.com (the “Website”) to give you information about us and our products, and to give you the opportunity to order products directly from the Website (the “Purpose”).
Your use of the Website is subject to the following terms and conditions (the “Agreement”). If you do not agree to these terms and conditions, then please do not use the Website.
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, INCLUDING A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
For purposes of this Agreement, “you” means the person using this Website; if the user is not an individual, then “you” means the user’s company and its officers, directors, members, agents, successors and assigns. “Products” means products made available on or through the Website.
By using this Website, you indicate that you have read and agree to be bound by all terms and conditions of this Agreement, without limitation or qualification, and by all applicable laws and regulations, as if you had written your name on a contract. Olive & Cocoa’s acceptance of your order for Products is conditioned upon your assent to all terms and conditions of this Agreement.
Effective Date: October 20, 2016
A. Intellectual Property
All content included on the Website, such as text, graphics, designs, logos, catalogs, icons, images, presentations, videos, data, articles, stories, blog entries, instructions, photographs, graphs, typefaces, sounds, and software (the “Materials”) is the property of Olive & Cocoa or its licensors. The Materials are protected by copyright, trademark and other intellectual property laws.
OLIVE & COCOA®, as well as other trademarks, service marks and logos that we use, are trademarks of Olive & Cocoa. Other marks, names, and logos used on this Website are the property of their respective owners. Your use of any of the trademarks found on this Website without express permission of the owner is strictly prohibited.
B. Limited License
Olive & Cocoa grants you a limited, nonexclusive, non-transferable, personal license to access, display and copy the Materials for personal, non-commercial use only, subject to the restrictions on use listed below in Section C and the other terms of this Agreement. You agree to retain all copyright and other proprietary notices contained on the Materials. This license is conditioned on your continued compliance with the Agreement. Except as provided in this license or otherwise specifically permitted by us in writing, you may not access, display or copy the Materials.
You may otherwise use the Materials only for the Purpose, as long as you comply with the restrictions on use listed below in Section C and the other terms of this Agreement.
All rights not expressly granted herein are reserved.
C. Restrictions on Use
You agree not to do any of the following:
- Modify, remove, delete, augment, add to, publish, distribute, participate in the transfer, rental, license or sale of, create derivative works from, or in any way exploit any of the Materials, in whole or in part;
- Manipulate, alter or affect or attempt to manipulate, alter or affect the Website, the Materials, any feature or program of the Website or the Materials, including searches, results, placements, advertisements, tags, products, expressions or programs;
- Interfere with, circumvent, disable or attempt to interfere with, circumvent or disable the Website, the proper working of the Website, security features of the Website, the equipment connected to the Website or any product or service provided on or through the Website;
- Mirror any Materials contained on this Website or any Olive & Cocoa server;
- Use framing techniques to enclose the Website or any part thereof;
- Use any metatags or any other hidden text incorporating Olive & Cocoa’s name or trademarks;
- Access or attempt to access the Website or to collect or index information provided to or on the Website using any automated means, such as robots, spiders, scrapers, scripts, harvesting ‘bots, or similar means or equivalent manual processes;
- Access an account without permission;
- Provide false or misleading information in connection with any account
- Impose an unreasonable or disproportionately large load on the infrastructure of the Website or Olive & Cocoa’s systems or networks, or any systems or networks connected to the Website or Olive & Cocoa;
- Restrict or inhibit any other person from using the Website (including without limitation by hacking or defacing any portion of the Website);
- Solicit, trace or otherwise collect any information from users or visitors of the Website;
- Reverse engineer, decompile or otherwise extract source code provided on or through the Website;
- Use the Website for commercial activities such as contests or advertising;
- Create a database by downloading and storing the Materials or any part thereof;
- Upload or transmit viruses, worms or other malicious code to the Website; and
- Violate any law in connection with your use of the Website, including export laws and privacy laws.
D. Submissions and Reviews
If you submit or post to the Website or Olive & Cocoa any reviews, ideas, suggestions, information, designs, images, advertisements, data or proposals (“Submissions”), you agree that such Submissions will be treated as non-confidential and non-proprietary. You hereby grant to Olive & Cocoa a nonexclusive, perpetual, worldwide license to use, copy, modify, display, distribute and create derivative works from the Submissions for any purpose in any medium without any compensation or credit to you whatsoever. You acknowledge that Olive & Cocoa may, but is not obligated to, review, modify and remove any review. Olive & Cocoa will have no obligations with respect to such Submissions.
E. Olive & Cocoa’s Rights
Olive & Cocoa reserves the following rights:
- To terminate the use of the Website and/or the account of anyone who violates this Agreement;
- To change the Website, the Materials, the form and nature of the Website and any products or services provided through the Website, at any time without notice;
- To honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code, incentive offer or other promotion;
- To refuse to provide any user or customer with any product or service;
- To review, modify, filter, delete and remove any and all content, orders and information from the Website;
- To update and download any software provided on or through the Website;
- To display advertising and promotions, which may be targeted to certain users or sections of the Website based upon queries made or preferences indicated, and may not be identified as paid advertisements or promotions; and
- To provide you with notices, including those regarding this Agreement, your account and your orders, by email, postings to your account or by other means.
F. Your Representations and Warranties
By using the Website, you represent, covenant and warrant that:
- You are 18 years of age or older, an emancipated minor or the parent or guardian of a minor whom you are authorizing to use the Website;
- Are authorized to sign for and bind the person or entity using the Website;
- You have the right to use any credit card(s) or other payment means used to initiate any order or other transaction through the Website;
- You will provide only true, accurate, complete and current information to the Website and to Olive & Cocoa;
- In the event that the Website sends messages to your mobile device, that you are solely responsible for any rates and fees charged by your mobile carrier and that you will update your mobile device account information within 48 hours of any deactivation of a mobile device so that a person who acquires your old number will not incur charges or receive your messages; and
- vi. You will not impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false headers, or otherwise conceal your identity from Olive & Cocoa or in any information that you provide to Olive & Cocoa.
G. Disclaimer of Website Warranties
To the maximum extent permitted under applicable law, you use the Website at your own risk.
To the maximum extent permitted under applicable law, Olive & Cocoa makes no representations or warranties of any kind, express or implied, as to the operation of the Website, or as to the Materials, services or information provided on or through the Website. The Website and the information, content and Materials available on or through the website are provided on an “as is,” “where is,” “where available” and “as available” basis.
Olive & Cocoa disclaims, to the maximum extent permitted under applicable law, all warranties, express or implied, with respect to any of the Materials, services and information provided on or through the Website, including warranties of quality, performance, non-infringement, merchantability, accuracy, title, and fitness for a particular purpose.
Neither Olive & Cocoa, nor its affiliates, nor any of their officers, directors, members, employees, agents, third-party content providers, sponsors or licensors or the like (collectively “Providers”) warrant, to the maximum extent permitted by applicable law, that the Website will be uninterrupted or error-free, the results that may be obtained from the use of the Website, or the accuracy, completeness, reliability, security or currency of the Materials. Further, Olive & Cocoa does not warrant, to the maximum extent permitted by applicable law, the reliability of, or guarantee or endorse any advice, opinion, statement or other information displayed or distributed through the Website. Olive & Cocoa is not responsible in any way for any transaction between you and another user of the Website. Olive & Cocoa has no obligation to make any corrections to the Website or Materials.
H. Limitation of Liabilities
To the maximum extent permitted under applicable law, you agree that Olive & Cocoa and its Providers shall not be liable to you or any third party for any indirect, special, incidental, consequential or punitive damages (including without limitation, loss of profits, loss or corruption of data, loss of goodwill, computer failure or malfunction, or business interruption), arising out of or related to (1) this Agreement or your purchase of Products, (2) your use of or inability to use the Website or any of the Materials, services or information provided on or through the Website, (3) any products, services or information offered, sold or displayed on or through the Website, (4) any unauthorized access to or use of our servers and/or any and all information concerning you stored therein, (5) any interruption or cessation of the website or transmissions to or from the website, and (6) any bugs, viruses, Trojan horses or the like that may be transmitted to or through the website by any third party. These limitations apply regardless of whether Olive & Cocoa or any of its Providers have been advised of the possibility of such damages.
To the maximum extent permitted under applicable law, Olive & Cocoa’s total aggregate liability for any claim arising from or relating to the Website, Materials or products, services or information offered, sold or displayed on or through the Website will be the lesser of (a) the amount of money you have spent on purchases through the Website during the 12 months prior to the action giving rise to liability, or (b) $300.00.
You agree to indemnify, defend and hold harmless Olive & Cocoa, its officers, directors, agents, employees, affiliates and Providers from and against any and all claims, expenses, liabilities, costs and damages (including attorneys’ fees), arising out of or related to any act or omission of you or your employees, agents, end users or subcontractors, including but not limited to use of the Website, violation of this Agreement, violation of any law or regulation or violation of any proprietary or privacy right. For the avoidance of doubt, this indemnification does not apply to claims caused by Olive & Cocoa’s negligence.
J. Choice of Law
This Agreement shall be governed by the laws of the State of Utah, without giving effect to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Salt Lake County, Utah for any cases that are not subject to arbitration as provided in Section K below. The United Nations Convention on the International Sale of Goods will not apply to any transactions under this Agreement.
K. Dispute Resolution
If you have a dispute with us, then we encourage you to contact our customer service center, information for which can be found at https://www.oliveandcocoa.com/customer-service. If our customer service cannot resolve your dispute, or if we have a dispute with you that we cannot resolve with you, then the following terms describe how the dispute will be resolved.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
You and Olive & Cocoa agree to arbitrate any claim, dispute, or controversy, including all statutory claims and any state or federal claims, that may arise out of or relating to use of the Website or this Agreement, except that Olive & Cocoa may seek injunctive, equitable or other appropriate relief in any state or federal court for situations where you have violated or threatened to violate Olive & Cocoa’s intellectual property rights (for example, trademark, copyright or trade secret rights). You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Salt Lake County, Utah for court cases related to Olive & Cocoa’s intellectual property rights. By agreeing to arbitration, each party understands and agrees that it is waiving its rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes.
Arbitration is a less formal process and generally faster and less expensive than a lawsuit in court to resolve disputes. A neutral arbitrator will hear the case instead of a judge or jury. Under this arbitration provision, the case also has to be heard on its own and not as part of a class action. The arbitrator has the power to award damages and other types of relief.
Arbitration under this Agreement will be conducted under the rules of the American Arbitration Association, including payment and filing rules. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the maximum extent permitted by applicable law, no arbitration under this Agreement will be joined to any other case or party.
Disputes under this Agreement may be resolved only on an individual basis, meaning arbitration between you and Olive & Cocoa. NEITHER YOU NOR OLIVE & COCOA MAY BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED.
YOU AND OLIVE & COCOA EACH WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. INSTEAD, YOU AND OLIVE & COCOA ELECT TO HAVE ALL CLAIMS AND DISPUTES RESOLVED BY ARBITRATION. For any disputes that are heard in a court, YOU AND OLIVE & COCOA EACH WAIVE ALL RIGHTS TO A JURY TRIAL AND ELECT INSTEAD TO HAVE SUCH DISPUTE HEARD BY A JUDGE.
Arbitration under this Agreement will take place in Salt Lake City, Utah. The arbitrator will apply Utah law.
WE ADVISE YOU TO CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS ARBITRATION PROVISION. You may decline the arbitration terms of this Section K by sending an email to email@example.com and including, your name, your address and phone number, the URL to this Agreement, a clear statement that you do not accept the arbitration terms provided in this Section K. You must send us this email within sixty (60) days of the date this Agreement is effective or the date you start using the Website, if you start using the Website after this Agreement becomes effective.
If any provision of this Section K is found unenforceable, that provision will be removed and all remaining provisions of this Section K will be enforced.
L. Term and Termination
Without limiting its other remedies, Olive & Cocoa may suspend or terminate this Agreement, your access to the Website and your account if you fail to comply with any term or condition of this Agreement. Olive & Cocoa may take such actions at its sole discretion, without prior notice to you. Upon such violation, you agree to terminate access to the Website. Upon termination, those provisions of this Agreement that expressly or by their nature survive will continue in full force and effect.
M. Linked Sites
As a convenience to you, the Website may provide links to websites operated by other entities (collectively “Linked Sites”). If you use any Linked Sites, you will leave the Website. Your use of any Linked Site is at your own risk.
Linked Sites are not necessarily maintained, controlled, governed or sponsored by Olive & Cocoa, or affiliated or associated with Olive & Cocoa. Olive & Cocoa does not endorse, make any representations regarding or warrant any information, goods and/or services appearing and/or offered on any Linked Site.
N. Linking to the Website
You may not link to the Website without the express written consent of Olive & Cocoa.
The Website may, from time to time, include contests, promotions, sweepstakes or other activities (“Promotions”) that require you to submit material or information concerning yourself. Promotions may be governed by separate rules that contain certain eligibility requirements, such as restrictions as to age or geographic location. You are responsible to read all Promotions rules to determine whether or not you are eligible to participate. If you enter any Promotion, you agree to abide by and to comply with all Promotions rules.
P. Entire Agreement and Modifications
If for any reason a court of competent jurisdiction finds any provision of the Agreement to be invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permitted by applicable law so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
This Agreement may change between your visits to the Website. Olive & Cocoa reserves the right, but has no obligation, to make changes to this Website and to these terms and conditions at any time. Any such modifications will become effective upon the date they are first posted to this Website. It is your responsibility to return to this Agreement from time to time to review the most current terms and conditions. Olive & Cocoa does not and will not assume any obligation to notify you of changes to this Agreement.
Olive & Cocoa respects the intellectual property rights of others. If you believe that your copyrighted work has been copied or posted on or through the Website in a way that constitutes copyright infringement, then please contact us at firstname.lastname@example.org and provide the following information:
- A description of the copyrighted work that you believe has been infringed;
- A description of what the allegedly infringing work is;
- A description of the location where the allegedly infringing work is located on the Website;
- An address and telephone number where you can be contacted, including an email address if possible;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
- A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.
R. Geographic Scope of Use
Olive & Cocoa makes no representation that the Website or the Materials are appropriate or available for use at locations outside of the United States. Access to the Website and the Materials from territories where they are illegal is prohibited. You may not use the Website or export the Materials in violation of U.S. export laws and regulations. If you access the Website from locations outside of the U.S., you are responsible for compliance with all local laws.