Effective date: May 13, 2020
1. Independent Contractor. I understand and agree that, as an Ambassador, I am solely and exclusively an independent contractor, under the laws of the State of Delaware only, and I am not an employee, agent, partner, legal representative or franchisee of Cobuna, nor do I have any other relationship, directly or indirectly, of whatsoever nature with Cobuna. I understand that I am not, and will not be treated as an employee of Cobuna for any purpose whatsoever, including, but not limited to federal or state tax purposes, and I do not have any other relationship of whatsoever nature, directly or indirectly, with Cobuna. I expressly and unconditionally understand and agree that Cobuna is not responsible for my withholding, or any other kind or form of taxes, and shall not withhold or deduct any taxes from any compensation, unless such withholding becomes required by an applicable law, rule or regulation.
2. Own Risk/Remedies Limited. I HEREBY UNDERSTAND AND ACKNOWLEDGE THAT BEING AN AMBASSADOR WITH COBUNA INVOLVES SOME RISK AND THAT IF ANYTHING HAPPENS WHICH RESULTS IN LIABILITY OR LOSS TO ME, MY REMEDIES AGAINST OR FROM COBUNA ARE VERY LIMITED. AS A RESULT, I UNDERSTAND, ACKNOWLEDGE AND ACCEPT THE FACT THAT BEING AN AMBASSADOR IS PURELY OPTIONAL AND IF I AM NOT COMFORTABLE WITH THE RISK AND LIMITED REMEDIES AVAILABLE TO ME, I CAN AND MUST CHOOSE NOT TO BE AN AMBASSADOR.
3. Compliance with the Law. I understand and agree that, as an Ambassador, I shall comply with any and all applicable laws, rules and regulations, and shall not engage in any act or omission that constitutes a violation of any applicable laws, rules or regulations.
4. Term. The term of this Ambassador Agreement commences on the date I register as an Ambassador via the Service and accept the Agreements as provided as part of the registration process, and will continue until terminated.
5. Termination. I understand and agree that, as an Ambassador, I expressly and unconditionally understand and acknowledge that I may terminate this Ambassador Agreement for any reason at any time by giving Cobuna written notice to firstname.lastname@example.org. I also expressly and unconditionally understand and acknowledge that Cobuna may terminate this Ambassador Agreement for any reason at any time by giving me written notice (email acceptable). In addition, I understand that Cobuna may immediately terminate this Ambassador Agreement in the event I breach any of the terms or conditions of this Ambassador Agreement, or any terms or conditions of the Agreements. I understand that Cobuna has the right, in its sole discretion, to pursue any and all legal and/or equitable remedies. The date of termination will be the earliest of: the date Cobuna either terminates this Ambassador Agreement, the date the Agreements or this Ambassador Agreement is terminated based on the terms hereunder, or I terminate this Ambassador Agreement or my relationship with Cobuna (“Termination Date”).
6. Effect of Termination. If this Ambassador Agreement, or any of the Agreements, are terminated for any reason, I hereby expressly and unconditionally understand and acknowledge that I will (a) immediately and permanently lose all rights, titles, interests, benefits and privileges available to me as an Ambassador, including, but not limited to, rights to content, commissions, bonuses and other compensation, other than those which have become due and payable prior to or on the Termination Date, and (b) I shall cease performing and holding myself out as being an Ambassador, in each case of (a) and (b), with regard to the Brand.
7. No Guarantee of Income. I fully understand and agree that Cobuna has not guaranteed, and does not guarantee at any time, that I will make any amount of income or be profitable in my efforts hereunder, and Cobuna has never made any representations to the contrary. I fully understand and agree that I shall not represent to others, either directly or indirectly, that an Ambassador is guaranteed an income or will derive profits from his/her efforts hereunder. I fully understand and specifically acknowledge and agree that my income hereunder, if any, is dependent solely and exclusively on my attributable sale of the Brand to the end-user / customer, as further described below.
8. General Conduct. I hereby agree and acknowledge that I shall diligently and in good faith safeguard and promote the good reputation of: (a) Cobuna, its directors, officers, agents, advisors, attorneys and employees, and (b) Cobuna, its suppliers’ products and brands. I also expressly and unconditionally agree to avoid all deceptive, misleading, unethical, illegal, immoral and negative conduct or practices, and to exhibit high moral character and integrity in my personal and professional conduct, at all times. The foregoing obligations and conduct and practices shall together constitute the policy of Cobuna and be considered the minimum standards of acceptable conduct by Ambassador (“Policy”). I shall not engage in any conduct that may damage, derogate or lessen in any way the goodwill, reputation, brand, management personnel or business of Cobuna or with regard to the products or any Cobuna brands. While I understand it is impossible to specify all misconduct that would be contrary to the Policy, I expressly and unconditionally acknowledge and agree that the following list of conduct and standards specifically apply to and govern my activities:
• AT NO TIME SHALL I MAKE ANY REPRESENTATIONS, STATEMENTS, WARRANTIES OR
CLAIMS OF ANY NATURE WHATSOEVER, AT ANY TIME, IN ANY FORM OF
COMMUNICATION, RELATING TO COBUNA OR ITS SUPPLIER’S PRODUCTS OR BRANDS, OR THE INCOME THAT MAY BE DERIVED FROM MY POSITION AS AN AMBASSADOR, SAVE AND EXCEPT FOR THE FOLLOWING:
1. THE EXPRESS REPRESENTATIONS AND CLAIMS PUBLISHED BY COBUNA ON ITS COMPANY AND/OR BRAND WEBSITE;
2. THE EXPRESS REPRESENTATIONS AND CLAIMS PUBLISHED BY COBUNA ON THE PRODUCT PACKAGING; OR
3. THE EXPRESS REPRESENTATIONS AND CLAIMS ON THE CONTAINERS IN WHICH THE PRODUCTS ARE SOLD.
• I will conspicuously identify myself as an Independent Contractor in all advertising, telephone directory listings, promotional material, social media postings, and other forums in which I promote Cobuna’s or its suppliers’ products, services, the Cobuna business and/or the Brand. I understand that I am responsible for the content of all material that I produce and all of my postings on any social media site, as well as all posting on any media, platform, site or medium that I participate in, own, operate or control.
• Deceptive conduct is always strictly prohibited – no exceptions, and I will ensure that my statements are truthful, fair, accurate, and are not misleading in any fashion.
• I will not make any social media postings, or links to or from any postings or other material that is or in any way could be deemed to be sexually explicit, obscene, pornographic, offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, negative, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), is graphically violent, is solicitous of any unlawful behavior, that engages in personal attacks on any individual, group, or entity, or is in violation of any intellectual property rights of Cobuna or any third party.
• If this Ambassador Agreement is terminated for any reason, or for no reason, I will immediately, commencing on the Termination Date, and forever thereafter, discontinue using the Brand name, trademark and all other Brand related materials and information, including any intellectual property, and all derivatives of such intellectual property, in postings on any media, medium, platform, website, or other promotional material.
• I may not represent or imply that any state or federal government official, agency, or body has approved or endorses Cobuna, its business, programs, brands or products at any time.
• I will at all times keep any Cobuna information shared with me that is or likely would deemed to be confidential, confidential, and will return or permanently destroy such information immediately at the Termination Date.
• I expressly and unconditionally represent, warrant and agree that I shall not, directly or indirectly, offer Cobuna products for sale or fulfill sales/orders of such products through any website or other electronic site, platform, service, or otherwise without the prior written consent of Cobuna, which can be granted solely through execution by Cobuna of a separate and distinct agreement.
9. Release and Limitation of Liability. Cobuna and its directors, officers, shareholders, members, partners, employees, attorneys, agents and assigns (collectively referred to as “Released Parties”) shall not be liable for, and I hereby knowingly, expressly and unconditionally, to the maximum extent permitted under applicable law, waive and release the Released Parties from, and will not rely on the Released Parties in any manner whatsoever, any and all claims and liability for consequential, exemplary or punitive damages arising out of Cobuna’s performance of its obligations under the Agreements. Additionally, I hereby knowingly, expressly and unconditionally, to the maximum extent permitted under applicable law, waive and release the Released Parties from, and will not rely on the Released Parties in any manner whatsoever, any and all claims and liability for direct damages in excess of $100.00 USD.
10. Indemnification. I hereby knowingly, expressly and unconditionally indemnify and hold harmless the Released Parties from any and all claims, damages or liability arising, directly or indirectly, from my actions or inactions as it relates to this Ambassador Agreement, including, but not limited to, representations regarding the products, the Brand, the Cobuna business opportunity, my operation of a motor vehicle, or the lease, rental or use of meeting or training facilities in relation to the operation of my business activities as it relates to Cobuna.
12. Confidential Information. “Confidential Information” includes, but is not limited to, the identities, contact information, and/or sales information relating to Cobuna Ambassadors, customers, partners, suppliers and/or customers: (a) that is contained in or derived from any Ambassador’s facilities or programs; (b) that is derived from any reports issued by Cobuna to Ambassadors to assist them in operating and managing his/her Cobuna-related business; and/or (c) to whom/which an Ambassador would not otherwise have access or would not otherwise have acquired, but for his/her independent contractor relationship with Cobuna. Confidential Information also includes proprietary business trade secrets which belong exclusively to Cobuna, but are provided to Ambassador in strict confidence. Confidential Information shall not be directly or indirectly disclosed by Ambassador to any third party, nor used for any purpose other than Ambassador’s use in building and managing his/her Cobuna-related business described herein.
13. Commissions. Cobuna utilizes the following compensation plan.
A) Attributable Commissions are earned by Ambassadors as follows: (i) a Cobuna product with the Brand is purchased by an end user customer via the Service, and (ii) such purchase is directly attributable to the Ambassador’s link (an “Attributable Sale”). In such a case of an Attributable Sale, the Ambassador is eligible to earn up to 25% of the sales total (less any discounts, shipping and handling and taxes) by Cobuna for such product purchased (referred to as an “Attributable Commission”), subject to the terms below Adjustment to Commissions and Requirement for Form W-9.
12. Minimum Payout. Cobuna may accrue individual Ambassador commissions until a minimum of $20.00 has accrued. Cobuna may issue payment, in its sole discretion, once an Ambassador has accrued a total of $20.00 in commissions. Notwithstanding the minimum accrual amount, all accrued compensation will be paid to Ambassadors during the last pay period of the year, even if an Ambassador’s total accrued compensation is less than $20.00.
13. Adjustment to Commissions. When a product is returned to Cobuna for a refund or a chargeback occurs, the commissions earned as a result of the corresponding sale will be deducted from the Ambassador and his/her commissions.
14. Requirement for Form W-9. When an Ambassador earns Attributable Commissions of $600 or more during a calendar year, he/she will be required to submit an Internal Revenue Service Form W-9 in order to be eligible for further commission payouts in excess of $600.
15. Governing Law, Jurisdiction and Venue. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Wilmington County, State of Delaware, or the United States District Court for the District of Delaware. The Federal Arbitration Act shall govern all matters relating to arbitration hereunder. The laws of the State of Delaware shall solely and exclusively govern all matters relating to or arising from this Ambassador Agreement.
16. Dispute Resolution.
• If a dispute arises relating to any relationship, contractual or otherwise, between or among Cobuna, its officers, employees, members, agents, attorneys, partners, Ambassadors or vendors (“Party” or “Parties”), or arising out of any products sold by Cobuna, the parties agree to attempt in good faith to resolve any such dispute in an amicable and mutually satisfactory manner.
• In the event such efforts are unsuccessful for any reason, either Party may serve a written notice of arbitration ("Notice of Arbitration") on the other Party. Notice of Arbitration shall be personally delivered or sent by prepaid registered mail, courier, facsimile transmission, email or by such other means of telecommunication that provides a record of sending the Notice of Arbitration and shall be effective on receipt thereof by the Party to whom it is addressed. The Notice of Arbitration shall be dated, and, without prejudice to any right under the applicable rules permitting subsequent modifications, shall specify the claims or issues which are to be arbitrated. The Parties shall schedule an arbitration to occur in Wilmington County, State of Delaware, U.S.A. within 45 calendar days of receipt of the Notice of Arbitration.
• THE PARTIES SPECIFICALLY AGREE THAT, IN ORDER TO PROMOTE TO THE FULLEST EXTENT REASONABLY POSSIBLE A MUTUALLY AMICABLE RESOLUTION OF THE DISPUTE IN A TIMELY, EFFICIENT AND COST-EFFECTIVE MANNER, THEY KNOWINGLY AND UNCONDITIONALLY WAIVE HIS/HER RESPECTIVE RIGHTS TO A TRIAL BY JURY AND SHALL SETTLE HIS/HER DISPUTE SOLELY BY SUBMITTING THE CONTROVERSY TO BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL RULES OF JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES AND PURSUANT TO JAMS' STREAMLINED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT HE/SHE HAD THE OPPORTUNITY TO DISCUSS THIS CLAUSE WITH AN ATTORNEY AND/OR A PROFESSIONAL OF THEIR CHOICE.
• The Parties shall attempt to select a mutually agreeable arbitrator from JAMS’ Panel of Arbitrators. If the Parties cannot agree on an arbitrator or an arbitrator is not selected by agreement within five (5) business days of receipt of the Notice of Arbitration and paying of the filing fees, an arbitrator shall be selected in accordance with the Commercial Rules of JAMS.
• The Arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et. seq., and the judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction to enter the judgement. Either Party may elect to participate in the arbitration telephonically. Any substantive or procedural rights other than the enforceability of this Dispute Resolution Policy shall be governed solely and exclusively by Delaware law, without regards to Delaware’s conflict of laws principles. NOTE: Louisiana resident Ambassadors may choose to arbitrate contract disputes in Louisiana and Louisiana law will govern the contract and dispute.
• The Parties agree that any arbitration proceeding will be conducted on an individual, not a class-wide, basis, and that any proceeding between the Parties may not be consolidated with another proceeding between one of the Parties and any other entity or person. THE PARTIES KNOWINGLY AND SPECIFICALLY WAIVE ANY RIGHT TO CLASS-WIDE TREATMENT OF ANY CLAIM COVERED BY THIS AMBASSADOR AGREEMENT AND DISPUTE RESOLUTION POLICY.
• The Parties further expressly agree that (i) the arbitrator shall only reach his/her decision by applying strict rules of law to the facts, (ii) the arbitration shall be conducted in the English language, in Wilmington County, State of Delaware, (iii) the Party in whose favor the arbitration award is rendered shall be entitled to recover all costs and expenses of the arbitration including, but not limited to, legal fees, expert or other professional fees, and the cost and expense of administration of the arbitration proceedings, and any costs and legal fees incurred in executing on or enforcing the arbitration award, and (iv) the arbitration award shall be issued in Wilmington County, State of Delaware, U.S.A.
• The Parties, JAMS, and the arbitrator shall maintain the confidentiality of the entire arbitration process and may not disclose to any other person not directly involved in the arbitration process: (i) the substance of, or basis for, the controversy, dispute, or claim; (ii) the content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in the arbitration; or (iii) the terms or amount of any arbitration award. JAMS and the arbitrator shall have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary.
• Except as provided in the following sentences, no party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter shall have been submitted and determined as provided herein and then only for the enforcement of such arbitration award. Provided that, notwithstanding this Dispute Resolution policy, either party may apply to a court of competent jurisdiction in Wilmington County, State of Delaware, to seek injunctive relief before or after the pendency of any arbitration proceeding. The institution of any action for injunctive relief shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration. Judgment upon the award may be entered by the United States District Court or Wilmington County, State of Delaware, or application may be made to such court for the judicial acceptance of the award and order of enforcement, as the case may be, if the Arbitrator's award or decision is not complied with within seven (7) calendar days of date the Arbitrator's decision is issued.
• Arbitration in accordance with the terms of this Dispute Resolution policy shall be the sole and exclusive procedure for resolution of disputes between the Parties, including any disputes that might arise after termination of this Ambassador Agreement.
• In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. Furthermore, in any arbitration arising out of or related to this Agreement, the arbitrator(s) may not award any incidental, indirect or consequential damages, including damages for lost profits.
• Notwithstanding the foregoing, any revision, modification, amendment to, or termination of the Dispute Resolution protocol contained in this Ambassador Agreement shall not apply to a dispute of which Cobuna has actual notice prior to the effective date of such revision, modification, amendment or termination. The effective date of any such revision, modification, amendment or termination shall be thirty (30) calendar days after the revision, modification, amendment or termination is posted on the Company website at www.asifbynassif.com.
19. Other jurisdictions. Notwithstanding the foregoing, and the arbitration provision set forth above, residents of certain jurisdictions may be entitled to bring an action against Cobuna in his/her home forum and pursuant to such home forum’s jurisdiction.
If you have any questions about these terms under this Ambassador Agreement, please contact us by email at email@example.com.
Effective date: May 13, 2020
Please, make sure you review the Agreements as a whole, and any updates from time to time. The Agreements may limit your remedies and your rights with regard to your access to and use of the Service and it is entirely your responsibility to be sure that you understand the Agreements and how they impact you. Make sure the terms are acceptable for you. Your use of the Service is conditioned on your acceptance of the Agreements and all of their implications. Your use of and access to the Service is optional and if you do not or cannot agree to any terms in the Agreements, please do not access or use the Service.
Products Not Approved By FDA
The products and information offered via the Service are not intended to replace professional medical advice or treatment. These statements have not been evaluated by the Food and Drug Administration (FDA). The products and information are not intended to diagnose, treat, cure or prevent any medical condition. Individual results may vary. Cobuna and its affiliates strongly encourage you to seek the advice of a qualified professional for any health concern or problem you may have, and to share with your provider any information pertaining to your health and well-being, including the use of any health supplements or products.
You may use the Service only if you can form a binding contract with Cobuna, and only in compliance with the Agreements and all applicable local, state, national, and international laws, rules, and regulations. You must be 18 years old or older to use or access the Service. Any use of or access to the Service by anyone under 18 is strictly prohibited and in violation of the Agreements. Also, the Service may not be available to any Users previously removed from the Service by Cobuna.
Information on becoming an Ambassador is located under our Site and the Ambassador Agreement. If you wish to become an Ambassador, you will need to review and accept the Ambassador Agreement and comply with all of the Ambassador terms and conditions prior to you becoming an Ambassador.
Changes and Discontinued Service
The Service and any features and functionality may change, be canceled or modified at any time, in our sole discretion. You must not and cannot rely on the Service or any products or information (including any pricing) being available to you at any time.
License and Access to the Cobuna Service
License to Use the Service
Cobuna grants you a limited, nonexclusive and revocable license to access and make personal use of the Service and not to download (other than browser-required page caching) or modify the Service, or any portion of them, except with express written consent of Cobuna. Accordingly, you expressly acknowledge and agree that Cobuna transfers no ownership or intellectual property interest or title in and to the Cobuna Service (or any part thereof) to you or anyone else. You may print and download materials and information from the Cobuna Service solely for your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information.
You are not permitted to resell or commercially use or reference any products purchased via the Service or any Content associated with the products or Service, including with regard to: any collection and use of any product listings, descriptions, or prices; any derivative use of the Service or any content; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools.
Use of Cobuna Materials
You acknowledge and agree that all content and material on or associated with the Service, including but not limited to, layout, formats, features, text and images, is protected by copyrights, trademarks, service marks or other intellectual property rights and laws. Except as expressly authorized in writing by Cobuna, you agree not to sell, license, rent, modify, distribute, copy, reproduce, or transmit materials or content from the Cobuna Service at any time.
No Commercial Use
Notwithstanding the license grant herein, neither the Cobuna Service nor any portion thereof may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of Cobuna. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Cobuna or our affiliates without express written consent. In addition, you may not use metatags or any other hidden text using Cobuna’s or its affiliates’ name or trademarks without the express written consent of Cobuna. Any unauthorized use terminates the permission or license granted by Cobuna.
Right to Hyperlink
You are granted a limited, revocable, and nonexclusive right to create a hyperlink (utilizing only the plain characters for Cobuna’s domain address and the Asifbynassif.com domain) to any page of the Cobuna Service, so long as the link does not portray Cobuna or any of its products, brands or services in a false, misleading, derogatory, offensive or negative manner, which will be determined in Cobuna’s sole discretion. You may not use any Cobuna logo or other proprietary graphic or trademark as part of the link without express prior written permission from Cobuna.
Online Promotions: Terms & Conditions of Sale
Cobuna, in its sole discretion, reserves the right to offer promotions from time to time. Cobuna or its affiliates may suspend or cancel any and all promotional offers or ongoing sale pricing on products or services offered on or via the Service or catalog at any time, without notice to any consumer, and you agree that you cannot rely on such promotion being available, even if it is advertised as such on the Site or elsewhere. You will be limited to one promo offer per order.
Change of Product Price and Availability
Product prices and availability are subject to change at any time, without notice. Promotional offers may not be applied to items already marked down in Cobuna’s sole discretion. You cannot and must not rely on any promotions or pricing being available at the time of an order or purchase (Facebook promos, Deal of the Day discounts, buy-one-get-one-free (BOGO) offers, etc.). Refer to each specific email offer for promo offers, if applicable, and valid dates of the sale. Offers end at 11:59 pm Pacific Time on the stated expiration date.
30 Day Return Policy
If you purchase product(s) via the Service and you are not satisfied with the product, Cobuna will issue a refund to you in the amount you paid for the product less shipping, as long as you notify us and tell us why you don’t like or want the product within thirty (30) days of your order date at firstname.lastname@example.org. However, Cobuna is not required to issue a refund to you if you order another product of the same type and a refund will only be issued in Cobuna’s sole discretion. Refunds will be provided as a credit back to the payment form you used to purchase the product.
All products will ship via the carrier of our choice. Merchandise total excludes gift certificates, delivery insurance, charitable donations and non-applicable items. Expedited orders and orders shipping outside of the 48 contiguous United States may not be possible and will be subject to additional shipping fees. If free shipping is offered, unless as otherwise stated on the Service, the free standard shipping will require a minimum merchandise total of the dollar amount stated in the applicable promotion, after any discounts or sales taxes have been applied.
Other Terms and Conditions
Links to Third Party Websites
The Cobuna Service may contain hyperlinks (“links”) to websites operated by persons or entities other than Cobuna (“third-party websites”). We provide such links for your reference and convenience only. A link from Cobuna to a third-party website does not imply or mean that we endorse the content or any products or services on that third-party website or the operator or operations of that website. You are solely responsible for determining the extent to which you use any products services or content at any third-party websites to which you might link from the Cobuna Service. COBUNA IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES INCURRED AS A RESULT OF ANY ACCESS TO, USE OF OR DEALINGS WITH ANY THIRD-PARTY PRODUCTS, SERVICES, CONTENT OR WEBSITE, ANY MERCHANT OR OPERATOR OF A THIRD-PARTY WEBSITE, OR ANY OTHER PERSON WITH WHOM YOU ENGAGE IN ANY TRANSACTION.
Feedback and Submissions
Cobuna welcomes your feedback and suggestions about Cobuna’s Service or any products. By transmitting any such suggestions, information, feedback, material, or other content (collectively, “feedback”) to Cobuna, you hereby represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third-party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Cobuna and enable Cobuna to use such feedback.
In addition, if you provide feedback, you hereby grant Cobuna a royalty-free, perpetual, irrevocable, transferable, non-exclusive, world-wide right and license for Cobuna and its affiliates to adopt, publish, reproduce, disseminate, transmit, distribute, sell, copy, modify, enhance, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
The Cobuna Service may offer certain tools, handheld offerings, or services that are available to you via your mobile phone or other mobile device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Cobuna Service shall be in accordance with the Agreements.
Postings & Reviews; Content
What You Can’t Do With The Service
The Cobuna Service may contain blogs, message boards, comment areas, questionnaires, forums, review areas, mediums, and other interactive features and functionality where Users can share and post information (a “Platform”). These Platforms are the resources and property of Cobuna, its affiliates and/or its licensors. You will not have any proprietary interest in any such Platform nor to any content contained or Posted (as defined) therein.
In addition, any information or material displayed or submitted by any User, including you, or Cobuna or its affiliates or suppliers, will be deemed to be “Content” and may be in any form, including text, video, images or written form. To the extent that the Cobuna Service permits or enables such Platforms, you agree that by using the Cobuna Service you will not upload, post, share, disseminate, display, or transmit (“Post” including any conjugations thereof) any Content in connection with or on the Service, that does or would likely result in:
● interference with or disruption to the Cobuna Service or the operation thereof,
● defamation, harassment, abuse, stalking, threats, intimidation, or in any way violates the rights of others,
● unauthorized copyrighted materials or infringement of the intellectual property rights, trade secrets, or privacy of others,
● violation of other contractual or fiduciary rights, duties, or agreements,
● bigoted, hateful, or racially offensive material,
● encouragement of criminal conduct or civil liability or otherwise violation of any law or regulation in any jurisdiction,
● anti-competitive collaboration and/or antitrust violations,
● vulgar, obscene, profane, or otherwise objectionable language or images that typically would not be considered socially or professionally responsible or appropriate or could be deemed offensive to others,
● harm to minors,
● impersonation of any other person or entity, whether actual or fictitious, including, without limitation, employees, contractors and representatives of Cobuna or its affiliates,
● misrepresentation of your affiliation with any entity and/or Cobuna or its affiliates,
● violation of the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual,
● chain letters or pyramid schemes,
● deceptive or misleading materials or information,
● statements or material that constitute junk mail, spam, or unauthorized advertising or promotional materials,
● “off-topic” information or materials for a designated subject, page, product or site, or
● files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network, or Cobuna’s Service.
Posting and Accessing Content on a Platform
If you Post to a Platform or other portion of the Cobuna Service, or by otherwise using the Cobuna Service to transmit or display Content, you do so at your own risk. You must not Post any Content unless you have the right to do so and you hereby represent that you have all necessary rights to make any Posting available to Cobuna and a Platform. Any Content in a Platform will be available to the public. You acknowledge that such Postings are non-confidential for all purposes and that Cobuna or its affiliates, partners and licensors have no control over the extent to which any Content may be used by any party or person once it is Posted or displayed.
You Grant a License Right to Your Content
If you Post any Content to a Platform or in connection with the Service, you automatically hereby grant Cobuna, its affiliates, its licensors, suppliers, and any Users, as applicable, a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, sell, exploit, distribute, transmit, perform, and display such Content or information (in whole or in part) worldwide and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Content or information, and including in connection with the operation of their Internet businesses. Accordingly, notwithstanding this right and license, it is understood that by merely permitting your Content to appear on the Service, Cobuna has not become and is not a publisher of such Content and is merely functioning as an intermediary to enable you to provide and display a Posting.
Deletion of Content
Cobuna may or may not store or maintain Content on a Platform and may delete any Platform or Content for any reason at any time. Your access to or Posting of any Content on or in connection with a Platform is not guaranteed and may be terminated at any time and Cobuna assumes no responsibility for the deletion of or failure to store any Posting or Content.
No Compensation for Content
No compensation will be paid with respect to the use of or reference to your Posting or Content, as provided herein. Cobuna is under no obligation to Post or use any Content you may provide and may remove any Posting or Content at any time, in Cobuna’s sole discretion.
Authorization to Provide Content
By Posting any Content, you hereby warrant and represent that you own or otherwise control all of the rights to Content, as described in the Agreements, including, without limitation, all the rights and authorizations necessary for you to provide and Post the Content under the terms of the Agreements.
Content Use is at Your Own Risk
Content on the Service and Content provided by any third-party or within a Platform has not been verified and may or may not be lawful or accurate and your access to or use of such information is AT YOUR OWN RISK. Cobuna may, in its sole discretion, but is not required to (and nothing in these Terms of Service creates an obligation or assumption that Cobuna will), monitor, delete, or take other action with respect to Postings (or parts thereof) for any reason at any time, and your use of the Service or Posting or of any Content does not create any obligation of Cobuna to display or maintain any Platform or Posting at any time. Cobuna strongly encourages all Users to use reasonable discretion and caution in accessing, using, or relying on any Posting or any Content.
No Endorsement of User Content
Cobuna does not endorse, oppose, or edit any opinion or information provided by you, any of its affiliates, suppliers or another User and does not make any representation with respect to, nor does it endorse the accuracy, acceptability, completeness, timeliness, or reliability of any advice, opinion, statement, or other material Posted in connection with the Service or any Platform, no matter who submitted or contributed the Content.
Cobuna’s Right to Share Your Personal Information
Establishing an Account and Safekeeping of Login Credentials
If you decide to become a member or an Ambassador, you will be required to register with the Service, which may require both a user name and a password or other requested access requirements as designated by Cobuna (“Login Credentials”). For security purposes, a user name and password is limited to one user and one account and you must not at any time share your Login Credentials with any other person or entity. Anyone with knowledge of your Login Credentials can gain entry to your account and potentially your personal or confidential information and/or be able to make purchases, for which you will be solely liable. It is 100% your responsibility to keep your Login Credentials confidential. If you know of or suspect any loss or theft of your Login Credentials or any unauthorized use, you must immediately notify Cobuna by emailing email@example.com. Cobuna will not be liable or responsible in any way for any loss or damage arising from your failure to comply with these obligations. Cobuna reserves the right to delete or change a user name or password at any time and for any reason. Notwithstanding the foregoing, nothing herein shall convey to you any further rights in your account or its information and any and all such content or information shall be subject to the Agreements.
Your Use of the Service Must be Lawful
As you know, your access to or use of the Service is optional and if any of the terms are not acceptable to you, do not use the Service.
As part of your responsibilities, you cannot jeopardize the security of the Service in any manner. You will not and will cause any person acting on your behalf not to:
● Access data or attempt to access data not intended for you or logging into a server or account that you are not authorized to access;
● Probe, scan, or test (or attempt to) the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
● Interfere with (or attempt to) service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services;
● Send unsolicited e-mail, including promotions and/or advertising of products or services; or
● Forge (or attempt to) any TCP/IP packet header or any part of the header information in any e-mail or Post.
Actual or attempted unauthorized use of the Service may result in criminal and/or civil prosecution in Cobuna’s discretion. Cobuna hereby reserves the right to view, monitor, and record activity on the Service without notice or permission from you, including, without limitation, by archiving notices or communications sent by you through the Service. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Service as well as to disclosures required by or under applicable law or related government agency actions. You agree that Cobuna also has the right to share or use any information about you to comply with all court orders or subpoenas involving requests for such information. In all cases, you hereby understand and accept that Cobuna reserves the right to, at any time and without notice and in its discretion, modify, suspend, terminate, or interrupt operation of or your access to the Service, or any portion of the Service, in order to protect Cobuna, its affiliates, suppliers, partners or any other Users, including such party’s business or goodwill.
Cobuna and all other names, logos, and icons identifying Cobuna or its affiliates’ or supplier’s programs, products, or services, including any logos, page headers, icons, designs, or trade dress and whether or not appearing in large print or with an accompanying symbol, are proprietary trademarks of Cobuna, its affiliates or suppliers, and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. Other product and company names mentioned herein may be the trademarks and/or service marks of their respective owners. Any use of such marks without the express prior written permission of Cobuna or the applicable affiliate is strictly prohibited, and nothing stated or implied on the Cobuna Service, or the Agreements, confers on you any license or right under any trademark of Cobuna, its affiliates or any third party.
All text, images, photographs, graphics, user interface, and other content provided on or via the Service, the “look and feel” of such content, and the selection, coordination, and arrangement of such content, are owned by Cobuna, its affiliates or its third-party licensors to the full extent provided under the United States Copyright Act and all international copyright laws. Cobuna also holds rights in any Content on the Service as a compilation or collective work. Any downloadable or printable programs, information, or materials available through the Service and all intellectual property and/or proprietary rights related thereto, unless otherwise expressly indicated in writing, are owned exclusively by Cobuna, its affiliates and/or its licensors or suppliers.
Your Rights to the Service and Content are Limited
Nothing stated or implied on the Service confers on you any further license or right under any copyright of Cobuna or any third-party. The Service and the information contained in reference herein are for your personal, non-commercial use only. Except as otherwise specifically permitted herein, you shall not broadcast, duplicate, copy, reproduce, edit, manipulate, modify, publish, rent, sell, publicly display, perform, distribute, transmit, or circulate to anyone the contents of the Cobuna Service, or use the contents of the Cobuna Services in litigation, or for any commercial or promotional purposes, without the express written consent of Cobuna or its affiliates or supplier’s or lawful successors and assigns of the foregoing. For usage permission beyond what is set forth herein, please contact us directly.
Internet and the Inherent Risks
ACCESS TO AND USE OF THE INTERNET AND THE SERVICES IS SOLELY AT YOUR OWN RISK. While Cobuna has endeavored to create a secure and reliable environment(s), you should understand that the confidentiality of any communication or material transmitted to/from the Service over the Internet or other form of global communication network is outside Cobuna’s control and is not and cannot be guaranteed. Accordingly, Cobuna is not responsible for the security of any information transmitted to or from the Cobuna Service. If you are not comfortable with this risk, we advise you, and it is your option, to not use or access the Service.
Notice of Copyright Infringement
Cobuna respects the intellectual property of others. When we become aware of allegations of copyright infringement in material distributed through the Service, we will investigate the allegations and take appropriate action. This responsive action can include, without limitation and particularly in the case of individuals who repeatedly infringe the copyrights of others, termination of access privileges.
You acknowledge that you may be liable for damages, including attorneys’ fees and costs, if you misrepresent that a work or activity or content is infringing your rights. If Cobuna terminates or suspends a user’s access to or use of the Service, Cobuna will make commercially reasonable efforts to contact the person who posted the content so that they may make counter notification pursuant to applicable laws. It is Cobuna’s policy to document all notices of alleged infringement upon which Cobuna decides to take action. As with all legal notices, a copy of the notice may be sent to one or more third-parties who may make such notice available to the public, including as a part of legal proceedings.
● If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, please provide Cobuna with the following information:
o Identification of the copyrighted work claimed to have been infringed;
o Identification of the allegedly infringing material on the Cobuna Service that is requested to be removed;
o Your name, address, and daytime telephone number, and an e-mail address if available, so that Cobuna may contact you, if necessary;
o A statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law;
o A statement that the information in the notification is accurate and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed, and;
o An electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
Notice of claims of copyright infringement on the Cobuna Service should be directed to Cobuna’s IP Agent, who can be reached as follows:
Cobuna Brands, LLC
4440 PGA Blvd., Suite 600
Palm Beach Gardens, FL 33410
Attn.: IP Agent
Counter notification, as permitted by applicable law, may be sent to the contact and address above. All counter notifications must include responsive information to what is set forth above, including any required statements or signatures.
Disclaimer of Warranties and Limitations on Liability
Disclaimer of Warranty
THE SERVICE AND ANY PRODUCTS RELATED THERETO ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. To the maximum extent permitted by applicable law, Cobuna makes no representations or warranties of any kind, express or implied, as to the operation of the Service or the information, content, third-party content, materials, products, services or linked services provided on or through the Service, including without limitation, that the information provided through the Service will be free from error, omission, interruption, defect, or delay in operation, or from technical inaccuracies or typographical errors; that the Service will be available at any particular time or location; that defects or errors in the Service will be corrected; or that the content on the Service is free of viruses or other harmful components. Any information on the Service is subject to change without notice, and Cobuna disclaims all responsibility for these changes. You expressly agree that your use of and access to the Service is at your sole risk.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COBUNA, ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND IN NO EVENT SHALL COBUNA AND/OR ITS AFFILIATES OR SUPPLIERS, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR ACCESS TO OR PERFORMANCE OF THE SERVICES OR WEBSITE, WITH THE DELAY OR INABILITY TO USE THE SERVICE OR ANY RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICE OR ANY PRODUCT RELATING THERETO, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH OR VIA THE SERVICE, OR ANY LINKED SITES OR SERVICES; IN THE EVENT A THIRD-PARTY INTERCEPTS OR DECRYPTS ANY TRANSMISSION OF INFORMATION THAT YOU PROVIDE TO COBUNA THROUGH THE SERVICE; IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE; OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF COBUNA OR ANY OF ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
CERTAIN STATES AND JURISDICTIONS DO NOT PERMIT THE LIMITATION OF CERTAIN REMEDIES OR IMPLIED WARRANTIES, IN WHICH CASE, TO THE EXTENT APPLICABLE, SUCH LIMITATIONS ON THE REMEDIES OR IMPLIED WARRANTIES WILL NOT APPLY TO YOU. HOWEVER, YOU AGREE THAT THE LIMITATIONS ABOVE WILL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE.
You are prohibited from, and expressly agree that you will not sell, resell, or make commercial use of the Cobuna, or its affiliates or suppliers’ products or brand, both domestically or internationally, unless you have an executed written agreement with us that expressly allows for such activity. You may not access or use any Cobuna or its affiliates’ or suppliers’ products or brands in violation of United States export control and economic sanctions requirements nor use registered trademarks or images to resell Cobuna’s or its affiliates’ or suppliers’ products or brand on the internet, offer discounts below what we expressly authorize, or cause the Cobuna, or its affiliates or suppliers’, brand or any product to be diluted in any way.
While Cobuna may choose to accept orders for the purchase of its products from non-residents of the United States, the acceptance of such orders and the sale of such products will only be based on the following conditions:
● You agree that the purchase of any Cobuna products by you, as a non-resident of the United States, shall be (a) ex works Cobuna’ facilities in the U.S. with all title risk and loss in the products passing to you in the U.S. and (b) for your own personal use only and not for further resale or distribution in any manner;
● You agree that you are procuring Products for personal use only and note for resale;
● You hereby expressly authorize and direct Cobuna to load and ship the purchased products to you to your designated ship to destination, and to contract on your behalf with a common carrier or courier company for that purpose;
● You are the principal importer of record, responsible for ensuring any products can be lawfully imported into your country, and will undertake responsibility for any and all applicable taxes, shipping, customs clearance, duties and import requirements from Cobuna’s facilities in the U.S. to your foreign ship-to destination; and
● The United Nations Convention on the International Sale of Goods shall not apply to any purchase or sale, and Cobuna expressly opts out of such Convention.
For products shipped outside the United States, please note that some items, including without limitation, directions of use, allergen warnings, label copy, content, manuals, instructions and safety warnings may not be localized in destination country languages; and the products and accompanying materials may not be formulated in accordance with destination country standards, specifications, and labeling requirements. In those cases, you expressly accept those products in the English language and as they are sold in the United States.
Applicable Law and Disputes
The Agreements, your rights and obligations, Cobuna’ rights and obligations, and all actions contemplated by the Agreements will be governed by Delaware law, without regard to principles of conflicts of law and as if the Agreements were a contract wholly entered into and wholly performed within the State of Delaware. The Agreements will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Further, you also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to the Agreements and is hereby expressly disclaimed.
Any dispute relating in any way to your visit to and/or use of the Service or in any way related to Cobuna or its affiliates or any products relating to the Service shall be submitted solely and exclusively to the state and federal courts in the State of Delaware, located in Wilmington county, Delaware, the place the Agreements are deemed by the parties to be entered into and to be performed by the respective parties.
You acknowledge that any breach, threatened or actual, of the Agreements, including, without limitation, with respect to unauthorized use of Cobuna or any of its affiliates’ proprietary assets, will cause irreparable injury to Cobuna or any of its affiliates, such injury would not be quantifiable in monetary damages, and Cobuna would not have an adequate remedy at law. You therefore agree that Cobuna and any of its affiliates shall be entitled, in addition to other available remedies, to seek, on and ex parte basis, and be awarded an injunction or other appropriate equitable relief from a Delaware court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of the Agreements. Accordingly, you hereby expressly and unconditionally agree to waive any requirement that Cobuna post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Cobuna to enforce any provision of the Agreements.
You hereby agree to defend, indemnify, and hold harmless Cobuna and its affiliates, successors and assigns, and its directors, officers, employees, agents, attorneys, co-branders or other partners (“Cobuna Indemnitees”) from and against any and all allegations, claims, demands, actions, causes of action, proceedings (whether threatened or pending), orders, damages, losses, liabilities, costs and expenses, including reasonable attorneys’ fees and other legal expenses, and judgments of any kind or nature, incurred by any Cobuna Indemnitees arising out of or relating to your use of or access to the Service or any content relating thereto and/or your violation of the Agreements and/or relating to any payment dispute with a third-party provider arising from a purchase or monies paid by you. Cobuna reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Cobuna in asserting any available defenses.
Term and Termination
The Agreements will take effect at the moment you click “Accept” or register with the Service if you become a member or Ambassador, or if and when you respond to a request for information, and/or begin downloading, accessing, or using the Service, whichever is earliest. Cobuna reserves the right, at any time, in its sole discretion, for any reason, or for no reason, to terminate your access to the Cobuna Service, including our Site and the related services, products or any portion thereof, without notice. You agree that you will not and are not relying on the Service or any product being available and Cobuna is under no obligation to sell or provide you with any product at any time.
You may also terminate the Agreements at any time by ceasing to use the Cobuna Service, but all applicable provisions of the Agreements will survive termination, as identified below, and each re-access or use of the Cobuna Service will reapply the Agreements (then in effect) to you. Upon termination, you must destroy all copies of any aspect of the Cobuna Service in your possession. The provisions concerning Cobuna’s proprietary rights, feedback and submissions, indemnity, disclaimers of warranty and liability, waiver and severability, miscellaneous legal terms, and governing law will survive the termination of the Agreements for any reason.
Miscellaneous Legal Provisions
Changes to the Service
We may discontinue the Cobuna Service or any product(s) at any time and for any reason, without notice. We may change the contents, operation, or any or all other features of the Cobuna Service or any product(s) at any time for any reason, without notice. We may discontinue or restrict your use of the Cobuna Service at any time for any reason, without notice.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Cobuna as a result of the Agreements or your use of the Cobuna Service. Nothing contained in the Agreements is in derogation of Cobuna’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by Cobuna with respect to such use. A printed version of the Agreements and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The failure of Cobuna to enforce any provisions of the Agreements or respond to a breach by you or other parties shall not in any way waive its right to enforce subsequently any terms or conditions of the Agreements or to act with respect to similar breaches.
If any part of the Agreements are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreements shall continue in effect.
Unless otherwise specified herein, the Agreements constitute the entire agreement between the User and Cobuna with respect to the Service and any Content, including the Site, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and Cobuna with respect to the Service. A printed version of the Agreements and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish of the parties that the Agreements and all related documents be drawn up in English.
All rights not expressly granted herein are hereby reserved.
Binding Arbitration and Class Action Waiver
You agree to binding individual arbitration of any and all disputes arising out of the Agreements before a JAMS arbitrator, applying Delaware laws, exclusively, and expressly agree not to sue in any court in front of a judge or jury. You understand that, through individual arbitration, a neutral arbitrator will decide the dispute and the arbitrator’s decision will be final, except for limited appeal rights, if any, under applicable Delaware laws. Additionally, as a condition of use of the Services and any Contents, including the Site, you understand and agree that class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where an individual acts in a representative capacity is expressly not allowed. You further understand and agree that individual proceedings cannot be combined for any reason whatsoever without express consent of all parties involved.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Effective date: May 13, 2020
User Opt in
The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out
If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency
Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty
The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Wilmington County, Delaware before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Cobuna Brand’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
If you have any questions about our mobile messaging program, please contact us by email at email@example.com.