ROTHY’S TERMS OF SERVICE AGREEMENT
Last Updated: May 21, 2019
Please read this Terms of Service Agreement (“TOS Agreement”) carefully. This TOS Agreement between Rothy's Inc (“Rothy’s”, “we”, “us”, or “our”) and the user (“you” or “User”) governs the use of: (i) our website, https://rothys.com/ (“Website”); (ii) the services and resources available or enabled via our Website (the “Services”); and (iii) all content, including, designs, graphics, text, photographs, illustrations, icons, multimedia, and other material that you see or read, and all related code (collectively, “Our Content”). Collectively the Website, Services, and Our Content are “Our Properties.”
This TOS Agreement applies to all users visiting, accessing, or using Our Properties. By clicking the “I accept” button, making a purchase, or browsing our Website, you represent that: (1) you have read, understand, and agree to be bound by this TOS Agreement, (2) you are of legal age to form a binding contract with Rothy’s, and (3) you have the authority to enter into the TOS Agreement personally or on behalf of the company you named as the User, and to bind that company to the TOS Agreement. For clarity, the term “you” refers to the individual or legal entity, as applicable, identified as the User when you registered on the Website. IF YOU DO NOT AGREE TO BE BOUND BY THIS TOS AGREEMENT, YOU MAY NOT ACCESS OR USE OUR PROPERTIES.
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TOS AGREEMENT.
FOR RESIDENTS OF THE UNITED STATES: THE ARBITRATION AGREEMENT IN SECTION 19 (ARBITRATION) OF THIS TOS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. THE ARBITRATION AGREEMENT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OUR PROPERTIES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
FOR RESIDENTS OF CANADA: THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS TOS AGREEMENT AND ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OUR PROPERTIES SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OR TERRITORY IN WHICH YOU RESIDE.
Changes to this TOS Agreement:
RESIDENTS OUTSIDE THE PROVINCE OF QUEBEC: This TOS Agreement is subject to change by us in our sole discretion at any time. Please regularly check our Website to view the then-current TOS Agreement. When we make changes, we will make a new copy of the TOS Agreement available on the Website and update the ‘Last Updated’ date at the top of this TOS Agreement. Any changes to this TOS Agreement will be effective immediately for new users of Our Properties and will be effective thirty (30) days after posting notice of such changes on our Website for existing users. Rothy’s may require you to provide consent to the updated TOS Agreement in a specified manner before we permit further use of Our Properties. If you do not agree to any change(s), you shall stop using Our Properties. Otherwise, your continued use of any of Our Properties constitutes your acceptance of such change(s).
FOR RESIDENTS OF THE PROVINCES OF QUEBEC AND ONTARIO: Any aspect of this TOS Agreement is subject to change by us in our sole discretion at any time. When we make changes, we will make a new copy of the TOS Agreement available on the Website and update the ‘Last Updated’ date at the top of this TOS Agreement. Any changes to this TOS Agreement will be effective immediately for new users of Our Properties. We will send you, at least 30 days before the amendment comes into force, a written notice clearly and legibly setting out exclusively the new clause, or the amended clause and the clause as it read formerly, the date of the coming into force of the amendment. For residents of Quebec, you may either accept the amendments by continuing to use Our Properties or you may refuse the amendment and rescind or, in the case of a contract involving sequential performance, cancel the contract without cost, penalty or cancellation indemnity by sending Rothy’s a notice to that effect no later than 30 days after the amendment comes into force, if the amendment entails an increase in your obligations or a reduction in Rothy’s obligations. For residents of Ontario, you may accept the amendments by continuing to use Our Properties or you may terminate this TOS Agreement by advising us you wish to terminate your account at the contact information included in the notice of amendment.
1. Questions & Concerns. If you have questions, complaints, or claims with respect to Our Properties, please contact us at the physical address or email address below. We will do our best to address your concerns. If you feel your concerns were not addressed completely, we invite you to let us know for further investigation.
855 Montgomery Street
San Francisco, CA 94133 USA
ATTN: Customer Support
2. Services. Our Properties allow users to browse, view, choose, and purchase various products (“Products”) on our Website. We provide Our Content to complement our Products, and all Our Content is provided for informational purposes only. We may, in our sole discretion, change, delete, update, modify or otherwise alter Products and Our Content at any time without providing you notice, and, in addition, we may change the pricing, and availability of Products in our sole discretion at any time without providing you notice. All photos, videos, and other images of Products on our Website are for illustrative purposes only. The actual Product may vary from that shown on our Website. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of Products on our Website at any time does not guarantee that these Products will be available for purchase. Our current prices can be found on the Website.
3. Ownership. You agree that Rothy’s and its suppliers own all rights, title and interest in Our Properties (including, without limitation, the features and functionality of our Website, and server software).
3.1 Copyright. Our Properties are protected by copyright and other intellectual property laws throughout the world. We may display copyrighted materials from various individuals and entities, and if copyright notices for such materials are required, they are set forth wherever such licensed material appears on Our Properties.
3.2 Trademarks. Rothy’s stylized name and all related graphics, logos, service marks, and trade names used on or in connection with Our Properties (the “Rothy’s Marks”) are our trademarks and may not be used in connection with any third-party products or services without our prior written permission. Other trademarks, service marks, and trade names that may appear on Our Properties are the property of their respective owners.
3.3 License. We grant you a limited, revocable, non-exclusive, non-transferable, non-assignable (except pursuant to Section 21.2 (Assignment)), non-commercial license to browse, access and view any of Our Properties made available to our users.
4. Updates. You understand that Our Properties are evolving. As a result, you acknowledge and agree that we may update Our Properties with or without notifying you. You may need to update third-party software from time to time to use Our Properties.
5. Certain Restrictions. The rights granted to you in this TOS Agreement are subject to the following restrictions:
- You shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Our Properties or any portion of Our Properties, including the Website;
- · Except as expressly stated herein, you shall not copy, modify, reproduce, distribute, republish, download, display, post, repost, or transmit, in any forms or by any means, any part of Our Properties;
- You shall not remove or destroy any copyright, trademark, service mark, or other proprietary rights notices or markings contained on or in Our Properties;
- You shall not frame or use framing techniques to enclose any of Our Properties, including any trademark or logo, (including images, text, page layout or form);
- You shall not use any metatags or other “hidden text” using Rothy’s Marks;
- You shall not modify, translate, adapt, merge, or make derivative works of any part of Our Properties; and
- You shall not use any manual or automated software, devices or other processes (including spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials).
Any future update or other addition to Our Properties shall be subject to this TOS Agreement. Rothy’s and its suppliers and service providers reserve all rights not granted in this TOS Agreement. Any unauthorized use of Our Properties terminates the licenses granted by Rothy’s within this TOS Agreement.
6. Registering your Account. To access certain features of Our Properties you must be a user who has a registered customer account (“Account”) on our Website (“Registered User”). Registered Users may view their order history, shipping address, status of purchased Products, and other relevant information to their purchases within their Accounts. Unless expressly agreed to by us in writing elsewhere, we have no obligation to store any information that is available on your Account or elsewhere on Our Properties.
6.1 Registration Process. You may create an Account by visiting our Website and clicking the “sign in” button or by visiting https://rothys.com/account/register. There, you must enter the information requested, such as your first and last name, email address and password. Once you enter the requested information and click “submit,” we will send an email to the email address you listed, via our third-party vendor to verify your email address and activate your Account. Upon activation of your Account, we will send you another email via our third-party vendor to confirm the creation of your Account.
6.2 Registration Data. In registering an Account on our Website:
· You agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
- You represent that you are at least thirteen (13) years old and of legal age to form a binding contract; and not a person barred from using Our Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction.
- You are responsible for all activities that occur under your Account.
- You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Our Properties by minors.
- You agree that you will not maintain more than one Account at any given time.
- You agree not to share your Account or password with anyone, and you agree to notify us immediately of any unauthorized use of your password or any other breach of security.
- You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
- You will not create or use an Account for purposes of reselling Products or for any other unauthorized commercial purpose.
- You agree not to create any Account or use Our Properties if we have previously removed you, or we previously banned you from any of Our Properties.
If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of Our Properties (or any portion thereof).
7. Our Programs. Subject to your compliance with this TOS Agreement, we invite you to participate in the following programs:
- Referral Program. A program where you can sign up to refer the Products on Our Properties to third parties (e.g. your friends) by sending them a personalized referral link to our Website (“Referral Program”). Once you sign up for our Referral Program, we will display the personalized link that you can share with third parties, for example, via email or social media. We will email you a notification when a third party makes a purchase through your personalized referral link. By signing up for our Referral Program, you agree to our Referral Program Terms and Conditions, available at:
- Gift Card and Credits Program. A program that allows you to send digital and physical gift cards (“Gift Cards”) to third parties for our Products. All Gift Cards are non-refundable, except as otherwise provided by law. For more information about our Gift Cards and Credits Policies please visit: https://rothys.com/faq/gift-cards.
8. User Content.
8.1 Types of Content. You and other users may be able to originate files, materials, data, text audio, video, images, or other content (“User Content”) on Our Properties. You acknowledge that the user who originated the User Content, and not Rothy’s, has sole responsibility for it. That means you, and not Rothy’s, are entirely responsible for User Content you upload, post, message, or otherwise make available (“Make Available”) on Our Properties (“Your Content”).
8.2 No Obligation to Pre-Screen Content. You acknowledge that we have no obligation to pre-screen Our Content or User Content (collectively, “Content”), but we reserve the right, in our sole discretion, to pre-screen, refuse, or remove any Content. By accepting this TOS Agreement, you hereby provide your irrevocable consent to such monitoring, and you acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content. In the event that we pre-screen, refuse or remove any Content, you acknowledge that we will do so for our benefit and not yours. Without limiting the foregoing, we shall have the right to remove any User Content that violates this TOS Agreement or is otherwise objectionable.
8.3 You Own Your Content. We do not claim ownership of Your Content. But, when you (as a user) upload, post, publish, or otherwise make available Your Content on Our Properties you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including moral rights) and license to use, sublicense, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue from, and communicate to the public, perform and display Your Content, and all portions thereof, and to incorporate it in other works in any form, media or technology now known or later developed, for the full term of all worldwide intellectual property rights that may exist in Your Content.
8.4 Your Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us through our suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Rothy’s has no obligations (including obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback.
8.5 License to Your Content and Feedback. You hereby grant Rothy’s a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, publicly perform, publicly display, re-format, and otherwise commercially or non-commercially exploit in any manner any and all of Your Content and Feedback, and any portions thereof, for the purposes of operating, maintaining, providing, and enhancing Our Properties. You hereby waive your moral rights in connection with Your Content. Please note that users may search for, see, use, modify, and reproduce any of Your Content or Feedback that you submit in a non-private or “public” area of Our Properties.
9. Your Conduct. As a condition of your use of Our Properties, you agree not to use Our Properties for any purpose that this TOS Agreement or applicable law prohibits. You shall not (and you shall not permit any third party to) take any action that:
- Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity;
- Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
- Constitutes unauthorized or unsolicited advertising, junk or bulk email;
- Involves commercial activities and/or sales without our prior written consent (e.g. contests);
- Impersonates any person or entity, including employees or representatives of Rothy’s;
- Interferes with or attempts to interfere with the proper functioning of Our Properties or uses Our Properties in a way not expressly permitted by this TOS Agreement; or
- Engages in or attempts to engage in any potentially harmful acts that are directed against Our Properties, including violating (or attempting to violate) any security features, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Our Properties, introducing viruses, worms, or similar harmful code into Our Properties, or interfering or attempting to interfere with the use of Our Properties by another use, host, or network.
10. Investigations. We may, but are not obligated to, monitor or review Our Properties at any time. If we become aware of any possible violations by you of this TOS Agreement, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to Our Properties, without prior notice to you.
11. Terms of Sale.
11.1 Payment Methods. When you order or pre-order a Product from our Website (“Order”), you must provide us with information from your valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider” and “Payment Provider Account”). You agree to pay all charges listed in the checkout process when you submit an Order in accordance with the fees, charges, and billing terms in effect at the time the charge is due and payable. Your Payment Provider agreement governs your use of the designated Payment Provider Account, and you must refer to that agreement, and not this TOS Agreement, to determine your rights and liabilities. By providing us with your Payment Provider Account, you agree that we are authorized to immediately charge your Payment Provider Account for all charges due and payable to us in connection with your Account and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or Payment Provider Account used for payment hereunder. We may use a third party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). Information that you submit to the Website will be transmitted to and shared with these third parties, which may be located in other countries, in order to provide the Services, including but not limited to transaction processing and fraud protection. We reserve the right at any time to change billing methods, either immediately upon posting on Our Properties or by email delivery to you. Payment value will be in US dollars unless otherwise specified on our Website.
11.2 Orders. By submitting an Order for a Product with us you: (i) agree to purchase that Product, (ii) represent that you are an authorized user of the Payment Provider Account provided, and (iii) represent that you are of legal age to use the Payment Provider Account provided. Each Order that you submit to us constitutes an offer to purchase. If you do not receive a message from us confirming receipt of your Order, please contact our Customer Service department at email@example.com before re-entering your Order. Our confirmation of receipt of your Order does not constitute our acceptance of your Order. We are only deemed to have accepted your Order once the Product(s) you ordered have been shipped.
11.3 Verification. When you submit your Order, we may verify certain items before your Order if fulfilled, including your personal information, payment information, and creditworthiness.
11.4 Order Issues. Although we strive to accept all valid Orders, we reserve the right to limit, modify, deny or cancel any Order (including replacement Orders) for any reason, including if: (i) we discover an error, inaccuracy, or omission in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment and/or shipping information, (ii) we suspect an Order has been placed using stolen payment card information or otherwise appears to be connected to fraud, unauthorized reselling or another violation of this TOS Agreement, (iii) the ordered Products is unavailable due to discontinuance or otherwise, (iv) the Order is connected with a previous payment dispute, or (v) the Order is associated with a user whom we suspect of abusing our Return Policy or of otherwise making fraudulent claims for Product replacements or refunds based on unfounded quality control, lost package, wrong size, wrong shoes, or order processing error complaints, or other false information. If any Product is discontinued or otherwise becomes unavailable, we reserve the right to cancel your Order and provide you a refund for the amount paid for the Product.
11.5 Pricing Information. Pricing and shipping information, including the total amount to be charged to your Payment Provider Account, will be displayed during the checkout process before you submit your Order. All prices and Products, even after you submit your Order, are subject to change. For more information about Product pricing, please visit the page for that Product on our Website.
11.6 Restrictions on Use of Products for Resale, Raffles and Promotions. To protect our goodwill and the intellectual property rights of Rothy’s and its licensors and suppliers, any resale of Products and Gift Cards for personal and/or business profit without our prior express written consent is strictly prohibited. Except as may be previously and expressly authorized by us in writing, we also prohibit the offering, use, transfer, or acceptance of our Products and Gift Cards for promotional purposes (e.g., as prizes in contests or sweepstakes) or in connection with any lottery, raffle or wagering scheme. We reserve the right to bar any users we suspect of violating this Section (or any other provision of this TOS Agreement) from further use of Our Properties and to refuse, limit or cancel any related Orders and/or suspend or cancel any related Accounts.
11.7 Disclaimer. We reserve the right to:
- Refuse any Order you place with us;
- Correct any errors, inaccuracies or omissions (including the price) with regard to the Products or Services offered;
- Change or update information in connection with any Products offered;
- Modify or cancel your Order, even after your Order has been confirmed, without notice or liability to you; and
- Limit, reject, modify, or cancel Orders, in our sole discretion, that appear to be placed by resellers or other unauthorized parties.
If we modify or cancel your Order, we will attempt to notify you at the last email address you provided us.
11.8 Returns. Our trusted third-party vendor manages our returns. To start a return and for more information on our return policies please visit: https://rothys.com/returns (“Return Policy”). All purchases are subject to our Return Policy.
11.9 Limited Warranty. For information about our limited warranty, please visit: our Return Policy Page or FAQ Page. If you have questions about our limited warranty please contact us at Rothy’s, 855 Montgomery Street, San Francisco, CA 94133 USA, ATTN: Stephen Hawthornthwaite.
11.10 Product Recall. You agree to fully cooperate with us and provide all reasonable assistance in the event that we recall any Products. If we recall Products, we will do so at our sole expense and in our sole discretion. Please notify us at Rothy’s, 855 Montgomery Street, San Francisco, CA 94133 USA, ATTN: Stephen Hawthornthwaite if you suspect there is a possibility of us needing to recall Products.
11.11 Taxes. Our charges may be net of any applicable Sales Tax (defined below)that may be due in connection with the Products provided under this Agreement. Please refer to your purchase receipt to determine whether your purchase includes the applicable Sales Tax. If Rothy’s determines any Products, or payments for any Products, under this TOS Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Rothy’s, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section 11.11, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
11.12 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for promotional value in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promote Codes sent to you through official Rothy’s communications channels are valid. You agree that Promote Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) have no monetary value and are not redeemable for cash or any cash equivalent; and (vi) may expire prior to your use.
12. Indemnification. You agree to indemnify and hold Rothy’s, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, “Indemnified Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ and other legal fees) relating to or arising out of: (a) your use of, or inability to use, Our Properties; (b) your violation of this TOS Agreement; (c) your violation of any rights of another party, including any users; or (d) your violation of any applicable laws, rules or regulations. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any of the Indemnified Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section 12 will survive any termination of your Account, this TOS Agreement or your access to Our Properties.
13. Disclaimer of Warranties for Our Properties. THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE PROVINCE OF QUEBEC, MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR LIMITATIONS OF LIABILITY. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PROPERTIES IS AT YOUR SOLE RISK, AND OUR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL ITS FAULTS, INCLUDING OMISSIONS AND ERRORS. ROTHY’S AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING FROM USE OF THE WEBSITE. For clarity, this Section 13 does not affect our Return Policy or our limited warranty for Products.
- NEITHER ROTHY’S NOR ITS LICENSORS MAKE ANY WARRANTY, REPRESENTATION OR CONDITION THAT OUR PROPERTIES WILL MEET YOUR REQUIREMENTS OR BE UP-TO-DATE, OR THAT YOUR USE OF OUR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
- ANY CONTENT ACCESSED THROUGH OUR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
13.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NEITHER ROTHY’S NOR ITS LICENSORS ARE LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD US LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
14. Limitation of Liability for Our Properties.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ROTHY’S OR ITS LICENSORS BE LIABLE FOR ANY: (i) LOSS OF PROFITS, REVENUE OR DATA; (ii) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR PROPERTIES; OR (iii) DAMAGES OR COSTS DUE TO PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS TOS AGREEMENT OR OUR PROPERTIES
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ROTHY’S OR ITS LICENSORS BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT PAID TO ROTHY’S BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE, GIVING RISE TO SUCH LIABILITY, OR THE CLAIM OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO ANY LIABILITY OF ROTHY’S OR ITS LICENSORS FOR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION.
14.3 Basis of Bargain. The limitations of liability set forth above are fundamental elements of the basis of the bargain between you and us.
14.4 Limitations May Not Apply to You. THE LAWS OF CERTAIN STATES AND JURISDICTIONS, INCLUDING THE PROVINCE OF QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
15. Copyright Infringement Claims. In accordance with the Digital Millennium Copyright Act of 1988, Rothy’s promptly responds to claims of copyright infringement committed on Our Properties if such claims are reported to our designated Copyright Agent. If you believe your work has been posted on Our Properties in a way that constitutes copyright infringement, please deliver the following information to our designated Copyright Agent at the address below:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of the location on Our Properties of the material that you claim is infringing;
- Your address, telephone number and email address;
- A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Rothy’s Designated Copyright Agent: 855 Montgomery Street, San Francisco, CA 94133; ATTN: Stephen Hawthornthwaite
16. Violations.If we become aware of any possible violations, or if we, in our sole discretion, determine that you breached any portion of this TOS Agreement or have otherwise demonstrated conduct inappropriate for Our Properties, we reserve the right to:
- Investigate your behavior, including your possible violations;
- Refer the matter to, and cooperate with any and all applicable legal authorities;
- Disclose any information on Our Properties to comply with applicable laws, legal processes or governmental requests;
- Deactivate your Account and cancel your Product purchase(s);
- Enforce this TOS Agreement; and
- Pursue any other action that we deem to be appropriate.
17. Term & Termination.
17.1 Term. This TOS Agreement shall commence on: (i) the date you accepted this TOS Agreement or (ii), if earlier, the date you first used any of Our Properties (the “Effective Date”), and will remain in full force and effect while you use Our Properties unless terminated earlier in accordance with this TOS Agreement.
17.2 Termination. We reserve the right to block access to, suspend, or terminate your access to Our Properties or your Account, with or without notice, and with or without refund, if we, in our sole discretion, determine that you are in breach of this TOS Agreement.
17.3 Effect of Termination. In the event that we terminate your access to Our Properties and/or your ability to create an Account, we may remove your access from, bar your right to further use, and delete your password and Account on our Website. Termination of access to Our Properties shall terminate this TOS Agreement. All provisions of this TOS Agreement that should survive termination, shall survive, including ownership provisions, warranty disclaimers, and limitations of liability.
17.4 No Subsequent Registration. If we discontinue your ability to access Our Properties and/or create an Account, you agree that you shall not attempt to re-register with or access Our Properties, for example, by using a different username. In the event you violate this Section 17.4, we reserve the right, in our sole discretion, to immediately take any and all of the actions set forth herein without any notice or warning to you.
18. International Users. Our Properties can be accessed from countries around the world and may contain references to Services and/or Products that are not available in your country. These references do not imply that we intend to announce such Services or Products in your country. The selection and availability of our Services and Products may vary from country to country, device to device (because of technical limitations), and user to user. Our Properties are controlled and offered by us from our facilities in the United States. Rothy’s makes no representations that Our Properties are appropriate or available for use in other locations. Those who access or use Our Properties from other countries do so at their own volition and are responsible for compliance with local law.
19. Arbitration.Please read the following arbitration agreement in this Section 19 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Rothy’s, its parent companies, subsidiaries, affiliates, successors and assigns, and all of its and their respective officers, directors, employees, agents and representatives (collectively, the “Rothy’s Parties”) and limits the manner in which you can seek relief from the Rothy’s Parties. IF YOU ARE LOCATED IN CANADA, please refer to Section 21 below.
19.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access to or use of our Website, to any Services distributed through our Website, and any Products sold or distributed through our Website, or to any aspect of your relationship with Rothy’s, will be resolved by binding arbitration, rather than in court, except that: (i) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (ii) you or the Rothy’s Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents). This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Rothy’s Parties on your behalf.
IF YOU AGREE TO ARBITRATION WITH THE ROTHY’SPARTIES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN,OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN, ANY LAWSUIT FILED AGAINST THE ROTHY’S PARTIES ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE ROTHY’S PARTIES IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS TOS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
19.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Rothy’s, 855 Montgomery Street, San Francisco, CA 94133 USA ATTN: Stephen Hawthornthwaite. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ and other legal fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Rothy’s will pay them for you. In addition, Rothy’s will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, theRothy’s Parties will not seek attorneys’ and other legal fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Rothy’sParties. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the TOS Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Rothy’s Parties.
19.4 Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 19.1, YOU AND THE ROTHY’S PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Rothy’s Parties are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.5 Waiver of Class or Consolidated Actions. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE ROTHY’S PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in a court as set forth in Section 22.4. All other claims will be arbitrated.
19.6 Thirty-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to Rothy’s, 855 Montgomery Street, San Francisco, CA 94133 USA: ATTN: Stephen Hawthornthwaite or email to firstname.lastname@example.org within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this TOS Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
19.7 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
19.8 Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Rothy’s.
19.9 Modification. Notwithstanding any provision in this TOS Agreement to the contrary, we agree that if Rothy’s makes any future material change to this Arbitration Agreement, you may reject that change within thirty (3) days of such change becoming effective by writing Rothy’s at the following address: Rothy’s, 855 Montgomery Street, San Francisco, CA 94133, ATTN: Stephen Hawthornthwaite.
20. California Users & Residents. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
21. Canadian Residents. If you reside in Canada, the following provisions will apply to you in place of Section 19 above:
EXCEPT WHERE PROHIBITED BY LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, any controversy, claim or dispute arising out of, relating to, or in respect of this TOS Agreement, including its negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with this TOS Agreement (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If the parties have not agreed upon an arbitrator within 14 days, unless otherwise agreed by the parties in writing, the parties shall ask the ADR Institute of Canada, Inc. to appoint a single arbitrator.
The seat of the arbitration shall be the same as the provincial or territorial law governing this TOS Agreement. The arbitration shall be heard in the capital of the seat, unless the parties agree otherwise. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial.
All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat. Each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, however it is agreed and acknowledged that the intention of the parties is to arbitrate the Dispute without recourse to the courts.
A party to this TOS Agreement may take such steps as are permitted or required to enforce an award made by an Arbitrator. Except as required by law, and only to the extent that such disclosure is reasonably necessary, or for the purposes of obtaining professional advice, the existence of the arbitration and any element of the arbitration, including any award, shall be confidential and shall not be disclosed to any non-party to the arbitration. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration.
22. General Provisions.
22.1 Electronic Communications. The communications between you and us use electronic means, whether you visit Our Properties or send us emails, or whether we post notices on Our Properties or communicate with you via email. You: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Rothy’s provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
22.2 Assignment. This TOS Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
22.3 Force Majeure. We shall not be liable for any delay or failure to perform, including failure to deliver Services, resulting from causes outside our reasonable control.
22.4 Exclusive Venue: To the extent the parties are permitted under this TOS Agreement to initiate litigation in a court, both you and Rothy’s agree that all claims and disputes arising out of or relating to this TOS Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.For residents of Canada, to the extent the parties are permitted under this TOS Agreement to initiate litigation in a court, both you and Rothy’s agree that all claims and disputes arising out of or relating to this TOS Agreement will be litigated exclusively in the courts located in the largest city in your jurisdiction of residence.
22.5 Governing Law.This TOS Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. For residents of Canada, the validity, interpretation, construction and performance of this TOS Agreement and any dispute or claim relating in any way to your use of Our Properties shall be governed by the laws of the province or territory in which you reside. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this TOS Agreement.
22.6 Important Notice for New Jersey Residents. If you are a consumer residing in New Jersey, the following provisions of this TOS Agreement do not apply to you: Section 12, Section 13, Section 14 , and in Section 22.5 above, the California governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
22.7 Notice. Where we require that you provide an email address, you are responsible for providing us with your most current email address. If the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this TOS Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to us at Rothy’s, 855 Montgomery Street, San Francisco, CA 94133 USA. Such notice shall be deemed given when received by Rothy’s by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail.
22.8 Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. In particular, but without limitation, Our Properties may not be exported or re-exported: (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Our Properties, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a country that supports terrorists, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Our Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that our Services and/or technology are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
22.9 Entire Agreement. This TOS Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. This TOS Agreement may be amended or superseded only be a mutually-executed writing. As used herein, “including” means “including without limitation”. The headings used in this TOS Agreement are included only for purposes of convenience and shall not limit or otherwise affect the construction of this TOS Agreement.
22.10 Waiver. Any waiver or failure to enforce any provision of this TOS Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
22.11 Severability. If any portion of this TOS Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of you and us, and the remaining portions shall remain in full force and effect.