THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND DRINKSTATION, INC. (“DRINKSTATION INC.”, “ORCA COFFEE CLUB”, “OCC”, “COMPANY”, OR “WE”), THE OWNER AND OPERATOR OF THE WWW.DRINKSTATION.COM AND/OR WWW.ORCA.COFFEE WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE, AND YOUR PURCHASE OF THE MEMBERSHIPS AND PRODUCTS SOLD ON THIS SITE. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By purchasing a product or signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless Orca Coffee Club if your child breaches or disaffirms any term or condition of this Agreement.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
1 – CHANGES TO SITE; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site.
Orca Coffee Club may add, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). Orca Coffee Club reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Orca Coffee Club uses a third party payment processing service to process orders and bill fees to your credit card.
PLEASE TAKE NOTICE that Orca Coffee Club (and its third party service providers) automatically collects various types of information about your visits to our Site, purchasing a product, registration for a Membership, and/or use our Services.
In addition to the personal information provided by you in connection with your account registration, we may also collect certain additional information by automated means, such as cookies, web beacons, and other automated devices.
We and/or our third party service providers may employ canvas fingerprinting and other browser fingerprinting techniques that extract and analyze information about your browser, operating system, and installed graphics hardware in conjunction with other user information (e.g. time-zone, language preference, etc.) to help verify your unique identity for fraud prevention purposes and help us continue to improve our Site and Services. We may also use third-party website analytics tools (including, but not limited to: Google Analytics and Facebook Insights) that collect information about visitor traffic on the Site that help us continue to improve the Site, our performance and the user experiences.
The types of information we may collect by such automated means include: Information about the devices our visitors use to access the Internet (such as the IP address and the device, browser, domain name and operating system type); URLs that refer visitors to our Site; Dates and times of visits to our Sites; Information on actions taken on our Site (such as page views and site navigation patterns); A general geographic location (such as country and city) from which a visitor accesses our Site; Search terms that visitors use to reach our Site and the webpage that led you to the Site.
2 – PASSWORDS USE OF SITE
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Orca Coffee Club if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
Subject to your compliance with this Agreement, Orca Coffee Club hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you. 2.3 – Chat Sessions
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of Orca Coffee Club or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
Due to account security restrictions MSAs are not able and will not fulfill certain types of requests. If your request requires making a payment OR canceling your service, please log onto your account or email Member Services at firstname.lastname@example.org to make such changes. MSAs may request your account login user name, email address, or other personally identifiable information in order ensure the identity and security of the chat. MSAs are NOT supposed to ask you for your password or credit card or debit card information to confirm your account. If a MSA asks for your password or payment information, please immediately discontinue the Chat session and email Orca Coffee Club at: email@example.com
3 – TERMS OF SALE
3.1 – Sales of Products and Memberships to End Users Only/Usage Restrictions
Orca Coffee Club sells coffee pods and other accessories (the “Product(s)”) from the Site to end-user customers who purchase these Products and monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable. Furthermore, you hereby understand and agree that the Orca coffee maker is a proprietary system designed to be used singularly with Orca coffee pods, and will not function properly with pods or capsules of any other brand or type. Under no circumstances are you permitted to tamper with or modify the Orca coffee maker system to brew coffee using pods or capsules of a different brand. 3.2 – Pricing
The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. Orca Coffee Club reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases. 3.3 – Refund/Cancellation Policy
If you are dissatisfied with any of the Products for any reason please return them, Orca Coffee Club will refund the amount paid for your most recent month of service or the amount you paid for such Product. Refund requests must be made directly to Orca Coffee Club at firstname.lastname@example.org. All refund requests must be made within thirty (30) days of the date of shipment by Orca Coffee Club. Orca Coffee Club is not liable for Products that are damaged or lost in transit to Orca Coffee Club. Promptly following Orca Coffee Club’s receipt of your request (typically within five (5) business days), Orca Coffee Club will credit the amount paid for the returned Product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase. Notwithstanding the foregoing, Orca Coffee Club does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback. 3.4 – Payment Methods; Automatic Monthly Membership Renewals and Membership Cancellation Policy
Orca Coffee Club will not provide a refund for a request that is received by Orca Coffee Club more than thirty (30) days after the date of original shipment (Refund Deadline). Orca Coffee Club also does not provide a refund for returned Products that are opened or damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use. Orca does not provide refunds for boxes of pods that have been opened, even when they contain unused pods. Our address is: ORCA Coffee Club, 1605 Lockness Place, Torrance CA 90501, USA. Our office telephone number is: 1-310-530-3838.
Orca Coffee Club accepts credit card payments only. You agree to pay all fees charged to your account based on Orca Coffee Club’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a Membership to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize Orca Coffee Club or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, Orca Coffee Club reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US Dollars.
Orca Coffee Club and Orca Coffee Club’s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to Orca Coffee Club and Orca Coffee Club’s third party payment service provider at the election of your credit card issuer. Neither Orca Coffee Club nor Orca Coffee Club’s third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER:
AUTOMATIC MONTHLY MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH.
Orca Coffee Club will automatically renew your Membership on each monthly anniversary date of the Membership and, as authorized by you by checking the box demonstrating your consent for automatic monthly renewal of your Membership during the sign-up process, we will charge your credit card with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month. MEMBERSHIP CANCELLATION.
You may cancel your Membership at any time by logging on to your account within www.orca.coffee. To cancel a membership, please log in to your account on the Site and select “MY SUBSCRIPTIONS”. Go to the specific subscription you want to cancel, (there may be more than one subscriptions opened by you); click on the "trash bin", then follow the instructions towards cancellation. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please email to email@example.com or call us toll free. Orca Coffee Club requires a reasonable amount of time to process your Membership cancellation request (usually up to 14 days). If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term. 3.5 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent by the following carriers – selected by Orca Coffee Club: FedEx, DHL, UPS, Priority Mail or First-Class mail via the U.S. Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
4 – USE OF MOBILE APP
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
Subject to these Terms, OCC grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Application for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”). Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application (“Content”) is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, this Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply. 4.3 – User Information:
Application features, such as Virtual Orca Coffee Club Credits, mobile gifting, feedback, account management, and interaction with social media sites, may use, maintain, or transmit User’s personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including credit card information), virtual Orca Coffee Club Credits information, GPS location information, and information for and from third-party social-media accounts (collectively “User Information”). By acknowledging and agreeing to this Agreement, or by using the Application, User consents to the transmission of User Information to OCC, including its agents and third-party partners, and consents to OCC, including its agents and third-party partners, receiving, collecting, storing, processing, transmitting, and using User Information for Application functionality and for the purposes disclosed in one or more of the OCC Privacy Policies identified in this Agreement. 4.4 – Prohibited Uses:
The User is, however, solely responsible for the confidentiality and security of User Information sent from or stored on the iOS Device by the Application. The User is also solely responsible for all transactions and activities undertaken by anyone or anything with any Virtual Orca Coffee Club Credits registered in the User’s name, whether authorized or unauthorized. This includes any and all unauthorized purchases made from the Virtual Orca Coffee Club Credits feature. The User agrees to immediately notify OCC of any suspected unauthorized transactions associated with the Application or any other breach of security. OCC shall not be responsible for any losses arising from the financial loss or theft of User Information due to unauthorized or fraudulent transactions related to the Application. Users shall be solely responsible for taking precautionary steps to protect User Information stored on the iOS Device, including without limitation password-protecting the iOS Device and employing Apple’s remote-wipe feature.
Use of the Application is limited to the contemplated functionality. The Application shall not be used in any way that,
- Harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
- is unlawful, fraudulent, or deceptive;
- Uses technology or other means to access unauthorized content or non-public spaces;
- Uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public spaces;
- Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Attempts to damage, disable, overburden, or impair OCC servers or networks;
- Attempts to gain unauthorized access to a OCC computer network;
- Attempts to gain unauthorized access to OCC’ user accounts;
- Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
- Violates these Terms in any manner; or
- Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).
OCC reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Application, including any Virtual Orca Coffee Club Credits, that OCC reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms. 4.5 – User-Generated Content:
The User may generate content, written or otherwise, while using the Application (“User-Generated Content”). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by OCC (for example, in product marketing campaigns). User grants OCC and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content. 4.6 – Indemnification:
User agrees to indemnify and hold harmless OCC, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the Application, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to the use or misuse of the Application, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. OCC reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. 4.7 – No Warranties:
OCC IS PROVIDING THE APPLICATION AND CONTENT TO THE USER “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED. THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, OCC DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED. 4.8 – No Liability:
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL OCC OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION; AND/OR (B) BE LIABLE TO THE USER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION, OR DEVICE FAILURE OR MALFUNCTION. THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION. OCC, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.
4.9 – Intellectual Property:
In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, to the fullest extent permissible by law, OCC, its agents or anyone involved in creating or providing this Application or Content shall not be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by User for use of the Application or $100, whichever is less.
OCC, ORCA COFFEE CLUB, the Orca Coffee Club logo, and other OCC trademarks, service marks, graphics and logos used in connection with the Application are trademarks or registered trademarks of Drinkstation, Inc. or other companies or officers affiliated or connected to OCC (collectively “OCC Marks”). Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively “Third-Party Marks”). The OCC Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of OCC or the applicable trademark holder. The Application and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by OCC or the owner of the Content. 4.10 – Severability:
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of OCC to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
4.11 – Modification of these Terms:
OCC reserves the right to change or modify these Terms or any other OCC terms, conditions, or policies related to use of the Application (including those identified in this agreement) at any time and at its sole discretion by posting revisions on the Orca Coffee Club website (www.orca.coffee) or within this Application. Continued use of the Application following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of OCC shall have any legal effect as a waiver by OCC of any Terms of this Agreement. 4.12 – Third Party Beneficiary:
User agrees that OCC’ service providers, licensors, or others involved in creating or providing the Application are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
4.13 – Contact Us:
If you have any questions regarding our privacy practices, you can email us at firstname.lastname@example.org
5 – GIFT CARDS
5.2 – Use and Limitations:
- You further certify and represent to OCC that the activities in connection with which the Gift Cards will be used will comply with these Terms and Conditions and all applicable laws, rules, and regulations, and that the Gift Cards will not be used in any manner that is misleading, deceptive, unfair, or otherwise harmful to consumers or OCC, including its investors, officers, employees, agents, servants, assignees, subsidiaries, or any other OCC-related entity.
- A Website account is not required in order to purchase a Gift Card. If the Gift Card is purchased for an individual other than you, the recipient of the Gift Card shall be notified via email at the email address you provide during the purchase. In the event the recipient does not have a Website account at the time of receiving the email, they will be prompted to create a Website account in order to redeem the Gift Card. A Website account is required in order to redeem a Gift Card.
- You may purchase Gift Cards for any value between $10 and $300 US dollars. The amount of the Gift Card you purchase shall be charged to you according to your selected payment option when you confirm the purchase of the Gift Card. If the purchase of a Gift Card is part of a promotional campaign wherein purchase of a Gift Card at a pre-determined dollar amount is awarded with additional Website credits (“OCC Credits”), these OCC Credits shall only be available for use after the total amount of Gift Cards has been exhausted. In all circumstances OCC Credits shall be used only after the exhaustion of Gift Cards.
- Gift Cards may only be redeemed toward the purchase of eligible products on the Website. Redemption of Gift Cards on the Website is subject to change in OCC’s sole discretion. Purchases are deducted from the Gift Card balance. Any unused balance will be placed in the recipient’s Orca Coffee Club account (“OCC Credits Balance Display”) when redeemed. If an order exceeds the amount of the Gift Card, the balance must be paid with a credit card or other payment method accepted by OCC.
- You may be able to obtain your gift card balance by contacting OCC customer service at email@example.com The Gift Card balance relayed to you by a OCC customer service agent is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase online, but there may be occasions when the updated balance is delayed for a period of time.
- Gift Cards never expire.
5.3 – Risk of Loss:
- Gift Cards may only be purchased and redeemed by persons residing in the 50 United States and the District of Columbia, and may only be used on the Website (www.orca.coffee). Gift Cards may not be purchased through or redeemed for the purchase of products at www.orca.coffee or www.orcacoffee.com or any other website operated by OCC, its affiliates, or any other person or entity, except as indicated by these terms and conditions.
- Gift Cards cannot be used to purchase other gift cards.
- Gift Cards cannot be reloaded, resold, transferred for value, redeemed for cash, or applied to any other account, except to the extent required by law. Unused Gift Card balances in a Website account may not be transferred.
- Gift Cards are not returnable or refundable for cash except in states where required by law.
- Gift Cards may not be sold or bartered to third parties.
- Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via websites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain OCC’s prior written approval.
- Use of OCC’s name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of OCC Gift Cards is strictly prohibited. Furthermore, the use of OCC Gift Cards in any manner that states or implies that any person, website, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, OCC or any of its subsidiaries or affiliates is prohibited.
5.4 – Fraud:
- If your Gift Card is lost or stolen, immediately contact customer service at www.orca.coffee Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to OCC. OCC and its affiliates shall have no liability to you for:
- lost or stolen Gift Cards; or
- use of any Gift Cards by third parties through your Website account. You are solely responsible for keeping the username and password for your Website account safe and for any activity conducted under your account.
- Notwithstanding the above, the risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. We are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission.
OCC shall have the right to close member accounts or any related account(s) if OCC suspects a Gift Card is being used in a fraudulent manner to make purchases on the Website. If a fraudulently obtained Gift Card is redeemed and/or used to make purchases on the Website or any of its affiliated websites set forth above OCC shall immediately suspend the Gift Card and may recoup the amount of the Gift Card by charging the amount from the Credit or Debit Card supplied. OCC may also cancel or remove any and all OCC Credits on the member accounts and/or any related account(s). OCC has a zero-tolerance Fraud policy and it is the responsibility of the account holder to secure their account and Gift Card. 5.5 – Limitation of Liability:
OCC AND THEIR AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CARD CODE IS NON-FUNCTIONAL, UNLESS SUCH NON-FUNCTIONALITY IS DUE TO THE GIFT CARD BEING FULLY REDEEMED, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH GIFT CARD CODE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. 5.6 – Indemnification:
You agree to defend, release, indemnify and hold harmless OCC and its subsidiaries, affiliates, its investors, officers, employees, agents, servants, assignees, and/or any other OCC-related entity from and against any claims, expenses, or liabilities made against or incurred by any of them in connection with your use of the Gift Cards or your violation of any of these Terms and Conditions.
5.7 – Issuer:
Gift Cards are issued by Drinkstation, Inc., a Delaware corporation, or its affiliates. 5.8 – Amendments:
OCC reserves the right to change or modify these Terms and Conditions (“Modified Terms”) from time to time in its sole discretion. Such Modified Terms shall be posted on the Website and shall be binding on all purchases of Gift Card that occur after the Modified Terms take effect. All terms and conditions contained in these Terms and Conditions are applicable to the extent permitted by law.
6 – REFERRALS
These are the Terms and Conditions applicable to the Orca Coffee Club Referral Program (the “Program”). Under the Program, Orca Coffee Club (“we”, “Company”, Drinkstation Inc. or “OCC”) offers its Members the opportunity to provide their friends, family, or other individuals (“Prospective Member”) with a unique referral ID link (“Personal Link”) that a Prospective Member can use to sign up for Orca Coffee Club services (“Membership”). For each Qualified Referral (defined below) generated through the Member’s Personal Link, the Member may receive an Orca Coffee Club credit (“Credit”) as specified on the OCC’s Referral Program page. We reserve the right to terminate this Program at any time for any reason. 6.1 – PRIVACY
Members and Prospective Members that wish to take part in the Program are bound by these Terms and Conditions. If you do not agree and abide by these Terms and Conditions in their entirety you are not authorized to participate in the Program. Members and Prospective Members may not participate in the Program where doing so would be prohibited by any applicable law or regulations. We reserve the right to modify or amend at any time these Terms and Conditions and the methods through which any Credits may be earned. We reserve the right to disqualify any Member or Prospective Member at any time from participation in the Program.
Children: No part of the Program is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE PROGRAM AT ANY TIME OR IN ANY MANNER.
Generally: To participate, a Member shall provide the Prospective Member with the Member’s Personal Link. The Prospective Member must click on the Personal Link and complete the sign up in the same session. If the Prospective Member does not complete the sign up in the same session, the Member will be not credited for that referral and will not be eligible for the Credit, even if the Prospective Member subsequently signs up for a Membership. For purposes of clarification, completion of sign-up in the same session means clicking the Personal Link provided by Member and completing OCC service sign-up within a reasonable period of time and without the Prospective Member closing their Internet browser or pressing the back button. Eligible Member
To be eligible for Program and to receive Credits, a Member must:
Personalized Referral Links
- Be a legal resident of the United States;
- Be at least 18 years old;
- Have provided the Prospective Customer with their correct unique Personal Link; and
- Have a Membership account in good standing with OCC.
- Employees of the Drinkstation Inc., its service providers or any of its or their subsidiaries, affiliates or promotional agencies, including immediate family and household members, are not eligible.
Company offers Members the opportunity to create their own personalized referral name (“Personalized Referral Link”). These Personalized Referral Links may be of any length and include any combination of words and/or numbers of the Member’s choosing. Personalized Referral Links shall be on a first come, first served basis. You can check Your Personalized Referral Link by going to www.orca.coffee. Company is in no way responsible for confirming or ensuring that the Personalized Referral Link is accurate or correctly formatted or spelled. Under no circumstances may a Member transfer or sell a Personalized Referral Link to another Member. Notwithstanding the foregoing, the Company reserves the right to revoke, ban, or amend any Personalized Referral Link at any time and for any reason. Any or all Credits earned through a revoked, banned, or amended Personalized Referral Link may be removed from Member’s account by Company. For purposes of clarification, but in no way limiting the Company’s rights to revoke, ban, or amend any Personalized Referral Link, the following Personalized Referral Links are explicitly banned and may be grounds for suspension of Membership and removal of any Credits earned:
Making a Referral
- Personalized Referral Links that imply a discount or savings on Membership
- Personalized Referral Links that Company deems to be obscene, racist, sexist, or offensive in its sole discretion;
- Personalized Referral Links that use a trademark, copyright, or the name of another individual.
- Personalized Referral Links that are promoted, advertised, or publicized on any Company owned or operated websites, third party websites, social networks, and any other similarly situated Internet site, property, location, or asset where Company is an Administrator or Trustee. By way of example, this includes but is not limited to Facebook, Twitter, Pinterest, Company Blog, or any other similarly situated websites.
- Members can refer Prospective Members by giving their Personal Link to the Prospective Member. Once a Prospective Member uses a Member’s Personal Link and successfully completes the signup process for the OCC services, the Member may receive a communication from the Company confirming that the Prospective Member has signed up. The confirmation communication to the Member shall include some of the Prospective Member’s personal information provided to Company such as name and email address. A Member’s failure to receive such a confirmation communication means that the Prospective Member failed to complete the signup process (during the same session, or at all) and no Credit will have been earned. The Member and/or the Prospective Member may email Company any comments or questions in regard to a failed referral, but whether to award Member the Credit shall be at Company’s sole discretion. Prospective Members must satisfy the requirements of these Terms and Conditions and consent to receiving communications from OCC. Members may not refer themselves.
- For purposes of emphasis and clarification, by using a Personal Link, a Prospective Member acknowledges and affirms his/her understanding that some of his/her personal information, including but not limited to his/her name and email address, may be sent to the Member who provided the Personal Link as confirmation of the Prospective Member’s successful referral and sign-up with OCC. Accordingly, OCC strongly advises that Prospective Members only use a Personal Link they receive from someone whom they personally know and trust. For their own security, Prospective Members should not use a Personal Link if they receive it from an unknown, untrusted, or public source, such as an Internet forum.
A Qualified Referral means that all the following conditions are met:
- The Prospective Member completed the registration process for a Membership using the Member’s Personal Link. If a Prospective Member registers for a Membership using any other link or method, the registration will not count as a Qualified Referral and the Member will not be rewarded a Credit;
- The Prospective Member was not previously registered with the Service under any other email address or alias; and
- The Prospective Member is a) at least 18 years old; b) meets the eligibility requirements to become a Member of OCC’s services; and c) has consented to receiving communications from OCC.
Member shall receive five (5) Credits for each verified Qualified Referral generated through the Member’s Personal Link. The actual Credit will be determined by OCC in its sole discretion as specified on its Credits Page. If the Credit consists of credit, such credit may only be applied in the amount specified by OCC towards the Member’s purchase of future services from OCC. A Member may attain an unlimited number of Qualified Referrals, but any Qualified Referral shall be subject to review at any time by OCC and it is in the sole discretion of OCC as to the legitimacy and validity of such Qualified Referral. Verified Qualified Referrals
All Credits are subject to verification. The Company may delay a Credit for the purposes of investigation. Company may also refuse to verify and process any transaction Company deems, in its sole discretion, to be fraudulent, suspicious, or in violation of these Terms and Conditions, or Company believes will impose potential liability on Company beyond what is reasonable for this Referral Program, its subsidiaries, affiliates or any of their respective officers, directors, employees, representatives and agents. Company may cancel, amend or revoke the Credit at any time due to business considerations of circumstances beyond Company’s control. Company is not responsible for errors, omissions, malfunctions, interruptions, deletions, delays or failures of operations. All of the Company’s decisions are final and binding, including decisions as to whether a Qualified Referral or Credit is verified. Value of Credit
Credits have absolutely no monetary value and may not, under any circumstances, be redeemed for cash or any cash equivalent including but not limited to gift cards, certificates, or refunds. Company may cancel, amend or revoke the Credit at any time for any reason. Transfer of Credits
Credits are personal to the Member and are not transferable and may not be auctioned, traded, bartered or sold, whether by operation of law or otherwise. Upon termination of the Program or any portion thereof for any reason, or upon cancellation of a Member’s account for any reason, any unredeemed Credits (including without limitation any unapplied credits) accumulated by the Member are forfeited.
6.3 – LIABILITY:
By participating in the Program, both Members and Prospective Members agree:
6.4 – DISCLAIMERS:
- To Defend, indemnify, release and hold harmless the Company, its service providers and their respective parent companies, affiliates and subsidiaries, together with their respective employees, directors, officers, licensees, licensors, shareholders, attorneys and agents including, without limitation, their respective advertising and promotion entities and any person or entity associated with the production, operation or administration of the Program (collectively, the “Released Parties”), from any and all claims, actions, demands, damages, losses, liabilities, costs or expenses caused by, arising out of, in connection with, or related to their participation in the Program (including, without limitation, any property loss, damage, personal injury or death caused to any person(s) and/or the awarding, receipt and/or use or misuse of the Program or any Credit); and
- To Receive communications from Company from time to time. d. That Company shall not be liable for:
- Late, lost, delayed, stolen, misdirected, incomplete, inaccurate, unreliable, garbled or unintelligible registrations, links, communications or affidavits, regardless of the method of transmission;
- Data corruption, theft, destruction, unauthorized access to or alteration of account information or other materials;
- Any injuries, losses or damages of any kind resulting from acceptance, possession or use of a Credit, or from participation in the Program, that were not reasonably foreseeable to the Company at the relevant time;
- Any printing, typographical, administrative or technological errors in any websites or materials associated with the Program; or
- Claims, demands, and damages in disputes among users of the Program.
- The Company disclaims any liability for damage to any computer system resulting from participating in, or accessing or downloading information in connection with the Program, and reserve the right, in its sole discretion, to cancel, modify or suspend the Program should a virus, bug, computer problem, unauthorized intervention or other causes beyond the Company’s control, corrupt the administration, security or proper play of the Program.
- The Company shall not be liable to any Member for failure to supply any Credit or any part thereof, by reason of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, threatened terrorist acts, terrorist acts, air raid, blackout, act of public enemy, earthquake, tornado, tsunami, war (declared or undeclared), fire, flood, epidemic, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any other similar or dissimilar cause beyond any of the Released Parties’ control.
- The Company reserves the right to cancel or suspend the Program should it determine, in its sole discretion, that the administration, security or fairness of the Program has been compromised in any way.
- Disclaimer of Warranties:
MEMBERS AND PROSPECTIVE MEMBERS EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE PROGRAM IS AT YOUR SOLE RISK, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND TERMS (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, PROMISES AS TO PRODUCTS OR SERVICES OFFERED THROUGH THE USE OF THE PROGRAM, IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE COMPANY MAKES AND GIVES NO PROMISE THAT (i) THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS OBTAINED FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
6.5 – LIMITATION OF LIABILITY AND INDEMNIFICATION:
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY, INCLUDING ANY VENDORS AND SERVICE PROVIDERS ASSOCIATED WITH OR ASSISTING IN PROVIDING THE PROGRAM, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PROGRAM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE PROGRAM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE PROGRAM; OR (v) ANY OTHER MATTER RELATING TO THE PROGRAM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN PROMISES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
- TO THE FULLEST EXTENT POSSIBLE BY LAW, THE COMPANY’S, INCLUDING ANY VENDORS AND SERVICE PROVIDERS, MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100 (ONE HUNDRED DOLLARS).
- IN NO EVENT DOES THE COMPANY EXCLUDE OR LIMIT ITS LIABILITY IN RESPECT OF PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE, FRAUD, OR ANY OTHER LIABILITY THE LIMITATION OR EXCLUSION OF WHICH IS NOT PERMITTED BY LAW.
6.6 – CONDUCT:
Members agree not to use the Program to:
Bulk Distribution (“Spam”).
- Violate applicable law;
- Stalk, harass, or harm another individual;
- Collect or store personal data about other Members;
- Impersonate any person or otherwise misrepresent Member’s identity;
- Interfere with, disrupt or violate the Terms and Conditions or servers or networks connected to the Program; or disobey any requirements, procedures, policies, or regulations of such networks;
- Interfere with another Member’s use of the Program;
- Attempt to gain unauthorized access to the Program, other accounts, computer systems, or networks connected to the Program;
- Transmit any file that contains viruses, worms, Trojan horses, or any other contaminating or destructive features;
- Conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of others;
- Resell, barter, trade, auction or otherwise generate income by providing access to the Program to others;
- Submit personal information relating to third parties to the Program without the consent of those third parties.
Fraudulent and Suspicious Behavior
- If a Member provides a Personal Link to a Prospective Member by email, the email must be created and distributed in a personal manner that is appropriate and customary for communications with friends, colleagues and family members. By using a Member’s Personal Link, the Prospective Member represents that he/she has given consent to Company to send Member his/her personal information such as full name and email address.
- Bulk email distribution, distribution to strangers, or any other promotion of a Personal Link in a manner that would constitute or appear to constitute unsolicited commercial email or “spam” in the Company’s sole discretion is expressly prohibited and may be grounds for immediate termination of the Member’s account and deactivation of the Personal Link. We have a zero-tolerance spam policy.
- The Company has no obligation to monitor the content provided by Members; however, the Company may choose to do so and block any email messages, remove any such content, or prohibit any use of the Program.
The Company reserves the right to suspend, disqualify or terminate any Member’s or Prospective Member’s participation in the Program and forfeit any Credits or credits earned if the Member or Prospective Member is found to have engaged in any prohibited conduct or otherwise violated the provisions of this Section 6. If Members have engaged in prohibited conduct, spam or fraudulent or suspicious behavior that undermines or affects the integrity or credibility of the Program, and the Company is unable to find a solution to restore the integrity and credibility of the Program, then the Company may in its sole discretion cancel, change or suspect the Program.
- The Company may prohibit a Member from participating in the Program or receiving a Credit, in their sole discretion, if they determine such Member, either directly or indirectly is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices that would in any way annoy, abuse, threaten or harass any other users or representatives of the Company.
- Use of any automated system, script, or macro to participate in the Program or generate Qualified Referrals is strictly prohibited and will result in the responsible Member’s disqualification from the Program.
- Members may not enter with multiple or fake email addresses or accounts, use fictitious identities or use any system, bot or other device or artifice to participate in the Program or receive a Credit.
- The Company reserves the right to disqualify any Member and/or cancel any Credit(s) if they determine a Member has tampered with the operation of the Program or violated these Terms and Conditions.
CAUTION: ANY DELIBERATE ATTEMPT TO DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY CONSTITUTE A VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION FROM FURTHER PARTICIPATION IN THE PROGRAM. THE COMPANY RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION, IN THE EVENT OF ANY SUCH ATTEMPT.
7 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Orca Coffee Club or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
The following brands: Orca, Orca Coffee Club and Drinkstation belong to Drinkstation, Inc and are registered trademarks in the United States and in other Countries. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Drinkstation Inc., Copyright © 2016 Orca Coffee Club. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. The capsule/pod, the brewing chamber of the espresso machine and other mechanisms are part of the Intellectual Property of Drinkstation, Inc. and its affiliates.
8 – PRODUCT/IDEA SUBMISSIONS
Orca Coffee Club and its personnel do not accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to Orca Coffee Club or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of Orca Coffee Club’s products, services or marketing strategies might seem similar to ideas submitted to Orca Coffee Club. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your correspondence says, the following terms shall apply to your Submissions.
You agree that:
- Any Submission (including its complete contents) by you to Orca Coffee Club will automatically become the property of Orca Coffee Club, without any compensation to you;
- Orca Coffee Club may use or redistribute any Submission and its contents for any purpose and in any way, without any compensation to you;
- Orca Coffee Club has no obligation to review any Submission; and
- Orca Coffee Club has no obligation to keep any Submission confidential, and no confidential relationship may be established by or inferred from any such Submissions to, or the consideration of your Submissions by, Orca Coffee Club.
9 – THIRD PARTY SITES; INDEMNIFICATION9.
9.1 – Third Party Web Sites
You hereby agree to defend, release, indemnify and hold harmless each of the Orca Coffee Club Parties (as defined in Section below) from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
10 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. ORCA COFFEE CLUB, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “ORCA COFFEE CLUB PARTIES”): (A)EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B)DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C)DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D)DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS. 11 – LIMITATION OF LIABILITY
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND ORCA COFFEE CLUB. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ORCA COFFEE CLUB OR ANY PERSON ON BEHALF OF ORCA COFFEE CLUB SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT THE ORCA COFFEE CLUB PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT SHALL ANY ORCA COFFEE CLUB PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A ORCA COFFEE CLUB PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A ORCA COFFEE CLUB PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, TO THE FULLEST EXTENT PERMISSIBLE BY LAW THE RELEVANT ORCA COFFEE CLUB PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID ORCA COFFEE CLUB FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ANY ORCA COFFEE CLUB PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH ORCA COFFEE CLUB PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
12.2 – Choice of Law
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with ORCA Coffee Club and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Informal Resolution.Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at www.orca.coffee or by mail to Orca Coffee Club, Attn: Customer Service, 1605 Lockness Place, Los Angeles, CA90501. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 12.2 governs dispute resolution between the parties.
- Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by Orca Coffee Club that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Orca Coffee Club, and to any of our licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Orca Coffee Club, and the dispute 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 Arbitration Rules, and the Terms. 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 Orca Coffee Club.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Orca Coffee Club in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ORCA COFFEE CLUB WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Los Angeles County, California.
- 30-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 the following address: Orca Coffee Club, Attn: Legal Department, 1605 Lockness Place, Los Angeles, California 90501, within 30 days of purchasing a Membership or a Product. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to subparagraph below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Orca Coffee Club.
- Modification. Notwithstanding any provision in these terms to the contrary, we agree that if Orca Coffee Club makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Orca Coffee Club.
- Small Claims Court. Notwithstanding the foregoing, either you or Orca Coffee Club may bring an individual action in small claims court.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Los Angeles County, California for such purpose.
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
13 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
13.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law. 13.2 – General Terms