Last Updated Date: 18 October 2021
THANK YOU FOR USING TREAT! TREAT PROVIDES A PLATFORM (“PLATFORM”) THAT ALLOWS USERS (“SENDER”) TO SEND THEIR FAVORITE PRODUCTS (“GIFTS”) TO THEIR FRIENDS AND FAMILY (“RECIPIENT”) ON OR THROUGH A THIRD-PARTY SELLER’S (“SELLER”) WEBSITE OR MOBILE APPLICATION AS A TREAT!
IF YOU ARE A SENDER OF A GIFT, YOU FURTHER REPRESENT AND WARRANT THAT YOU (1) HAVE OBTAINED YOUR RECIPIENT’S PRIOR EXPRESS CONSENT TO PROVIDE TO TREAT RECIPIENT’S TELEPHONE NUMBER AND/OR EMAIL ADDRESS TO ENABLE TREAT TO SEND AUTOMATED TEXT MESSAGES AND/OR EMAILS TO RECIPIENT ON YOUR BEHALF TO FACILIATE DELIVERY OF THEIR GIFT; AND (2) HAVE THE AUTHORITY TO GRANT TREAT AUTHORIZATION TO SEND RECIPIENT SUCH AUTOMATED TEXT MESSAGES OR EMAILS ON YOUR BEHALF. YOU AGREE TO INDEMNIFY AND HOLD THE TREAT PARTIES (AS DEFINED IN SECTION 7 BELOW) HARMLESS AGAINST ANY LOSSES (AS DEFINED IN SECTION 7 BELOW), ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH, ANY BREACH, ACT, OMISSION, OR NON-COMPLIANCE BY YOU OF THE FOREGOING REPRESENTATION.
PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH 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 PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 1.2 (TREAT COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGES, CALLS AND PUSH NOTIFICATIONS.
1. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Subject to the Terms, Treat grants you a limited license to reproduce portions of Services solely for your personal or internal business purposes. Unless subject to a separate license between you and Treat, your right to use any and all Services is subject to the Agreement.
1.1 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Treat’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (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); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Treat, its suppliers and service providers reserve all rights not granted in the Agreement.
1.2 Treat Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail and text messages. You agree that texts may be generated by automatic telephone dialing systems or other automated systems or technologies used in the selection and dialing of numbers or transmission of messages. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Treat and industry developments. Message and data rates applied by your cell phone carrier may apply. IF YOU WISH TO OPT OUT OF COMMERCIAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR COMMERCIAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF TEXTS, YOU MAY TEXT “STOP” AND REPLY TO ANY MESSAGE YOU RECEIVE FROM US ON THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS AS A CONDITION OF USING THE SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXTS MAY IMPACT YOUR USE OF THE SERVICES.
2. RESPONSIBILITY FOR CONTENT.
2.1 Types of Content. You acknowledge that all any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Treat, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other users of the Services, and not Treat, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
2.3 No Obligation to Pre-Screen Content. You acknowledge that Treat has no obligation to pre-screen User Content, although Treat reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to Treat’s monitoring of Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Treat pre-screens, refuses or removes any of Your Content, you acknowledge that Treat will do so for Treat’s benefit, not yours. Without limiting the foregoing, Treat shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.
2.4 Storage. Unless expressly agreed to by Treat in writing elsewhere, Treat has no obligation to store any of Your Content. Treat has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
3.1 Services. Except with respect to Your Content and other User Content, you agree that Treat and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, application programming interface, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Treat software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
3.2 Trademarks. , TREAT, and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Treat and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3.3 Your Content. Treat does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
3.4 License to Your Content. You grant Treat a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users of the Services. You agree that you, not Treat, are responsible for all of Your Content.
3.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Treat through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Treat has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Treat a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Treat’s business.
4. USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Treat’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Treat; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
5. INTERACTIONS WITH OTHER USERS.
5.1 User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact, including any Sender, Recipient or Seller; provided, however, that Treat reserves the right, but has no obligation, to intercede in such disputes. You agree that Treat will not be responsible for any liability incurred as the result of such interactions.
5.2 Content Provided by Other Users. The Services may contain User Content provided by other users of the Services, including any customer message composed by a Sender to a Recipient. Treat is not responsible for and does not control User Content. Treat has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users of the Services at your own risk.
6. GIFT FEES AND PURCHASE TERMS.
6.1 Marketplace Exchange. The Services can be used to facilitate the purchase and sale of Gifts through the Services from third-party sellers of products and services (“Sellers”). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Treat makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider Treat, nor will Treat be construed as, a party to such transactions, whether or not Treat may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
6.2 Gifts. Gifts are initially selected by Sender via the Platform on or through the applicable Seller’s website or mobile application. Recipient will have the option of accepting the originally selected Gift, or an alternative Gift of equal or lesser value. Upon acceptance, Recipient will enter a shipping address, and your Payment Provider (as defined below) will be charged in accordance with terms of this Section 6. Sender’s Payment Provider will not be charged, and no Recipient is entitled to the receipt of any Gift, until Sender has confirmed the final order and the Gift has been accepted by Recipient and shipped by the Seller.
6.3 Prices. As the Sender, you acknowledge that the amount actually billed may vary due to promotional offers, the particular Gifts in each delivery as selected by Recipient, or changes in applicable taxes, tax or shipping estimates or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
6.4 Payment. You agree to pay all fees or charges associated with a Gift purchase in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You must provide Treat’s Payment Processor (as defined below) with a valid credit card (Visa, MasterCard, or any other issuer accepted by us and/or Seller), Google Pay, Apple Pay or other payment account of a payment provider (each, a “Payment Provider”) as a condition to using the Services. Your Payment Provider agreement governs your use of the designated credit card or digital payment account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Treat with your credit card number or digital payment account and associated payment information, you agree that Treat is authorized to immediately charge your Payment Provider for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Treat of any change in your billing address or the credit card or digital payment account used for payment hereunder. Treat reserves the right at any time to change its billing methods, either immediately upon posting on the Services or by e-mail delivery to you and you acknowledge and agree that certain Sellers may only accept certain Payment Methods. All information that you provide to us or any Payment Provider must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make or that you receive.
6.6 Orders; Refunds. All Gifts are subject to availability, and any Seller reserves the right to impose quantity limits on any order, to reject all or part of an order, to discontinue offering certain Gifts and to substitute Gifts without prior notice. Orders placed by Senders may be changed or cancelled for an applicable refund until the time of shipment. Unless Treat agrees or states otherwise in writing, all other fees and charges are nonrefundable. Under no circumstances shall Recipients be entitled to refunds or credits for any unconfirmed or cancelled orders.
6.7 Shipments. As a Sender, you agree to pay any shipping and handling charges shown at the time you confirm an order. When you initially select a Gift for purchase, any taxes and shipping costs shown are estimates only. Your Payment Provider will be authorized for the highest amounts estimated, and no amount over such estimates will be charged to your Payment Provider. All Gifts should be shipped to Recipients personally and are not for resale or export. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery on behalf of the intended Recipient. YOU ACKNOWLEDGE AND AGREE THAT ALL SHIPMENTS WILL BE MADE THROUGH THE SELLER FROM WHICH THE GIFT WAS PURCHASED, AND NOT THROUGH TREAT. TREAT SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, THEFT, OR SHIPMENT DELAYS IN CONNECTION WITH ANY GIFT PURCHASE. BY PURCHASING A GIFT WITH TREAT, YOU ACKNOWLEDGE THAT YOUR ORDER WILL BE FULFILLED BY THE THIRD PARTY SELLER AND NOT BY US. We share certain information with that Seller in order to permit the Seller to fulfill and ship your order, process returns, and provide customer service. We require all Sellers to keep your information secure. The Seller will be responsible for all processing, shipping, returns, and customer service related to your order. You should contact the third-party Seller directly via the contact information provided on the product page for any inquiries or customer service issues related to the Seller’s products. Gifts purchased from a third-party Seller can only be returned to that Seller in accordance with such third-party Seller’s return policy and cannot be returned to us. TREAT DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING THAT OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, FOR PHYSICAL PRODUCTS, AND MAKES NO REPRESENTATIONS AS TO THE SHIPPING, QUALITY OR CONDITION OF ANY GIFT SENT OR RECEIVED BY YOU FROM A THIRD PARTY SELLER.
7. Indemnification. You agree to indemnify and hold Treat, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Treat Party” and collectively, the “Treat Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) (“Losses”) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Sender or Recipient; (d) your failure to obtain consent from a Recipient for Treat to send such Recipient a text message or email notification; or (e) your violation of any applicable laws, rules or regulations. Treat reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Treat in asserting any available defenses. This provision does not require you to indemnify any of the Treat Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TREAT EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) TREAT MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) THAT ANY RECIPIENT WILL RECEIVE NOTICE OF YOUR GIFT, WILL ACCEPT YOUR GIFT, OR THAT SUCH GIFT WILL ARRIVE TO RECIPIENT WITHOUT ISSUE OR DAMAGE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH TREAT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS TREAT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TREAT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TREAT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, TREAT may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at TREAT’S sole discretion. The provisions of this section apply with full force to such features or tools.
8.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT TREAT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TREAT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, SELLERS, AND OTHER USERS OF THE SERVICES, INCLUDING ANY SENDER OR RECIPIENT, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8.3 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Treat to monitor such materials and that you access these materials at your own risk.
9. LIMITATION OF LIABILITY.
9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL TREAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT TREAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, INCLUDING ANY SENDER OR RECIPIENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES; (c) ANY MESSAGES RECEIVED BY SENDER AND/OR RECIPIENT FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (f) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A TREAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A TREAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A TREAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL TREAT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO TREAT BY YOU DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TREAT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TREAT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TREAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TREAT AND YOU.
10. MONITORING AND ENFORCEMENT. If Treat becomes aware of any possible violations by you of the Agreement, Treat reserves the right to investigate such violations. If, as a result of the investigation, Treat believes that criminal activity has occurred, Treat reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Treat is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Treat’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Treat, its users or the public, and all enforcement or other government officials, as Treat in its sole discretion believes to be necessary or appropriate.
11. TERM AND TERMINATION.
11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
11.3 Termination of Services by Treat. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Treat is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Treat has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Treat’s sole discretion and that Treat shall not be liable to you or any third party, including any Recipient, for any termination of your Account or access to the Services.
11.4 Termination of Services by You. If you want to terminate the Services provided by Treat, you may do so by (a) notifying Treat at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Treat’s address set forth below.
11.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of all information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Treat will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.6 No Subsequent Registration. If your ability to access the Services, is discontinued by Treat due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Treat reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Treat intends to announce such Services or Content in your country. The Services are controlled and offered by Treat from its facilities in the United States of America. Treat makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. Subject to your right to opt-out, as further described in this Arbitration Agreement, it requires you to arbitrate disputes with Treat, includes a broad waiver of your right to participate in class actions and your constitutional right to a jury trial and otherwise limits the manner in which you can seek relief from us.
13.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Treat. If that occurs, Treat is committed to working with you to reach a reasonable resolution. You and Treat agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Treat therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of his or her intent to initiate an Informal Dispute Resolution Conference, which shall occur within forty-five (45) days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. Notice to Treat that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at Treat Technologies, Inc., 195 Montague St. Brooklyn NY 11201. The notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
A party who desires to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ 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 Disputes 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/. Any arbitration of a Dispute relating to your access to or use of the Services, any products sold or distributed through the Services, primarily for personal, family or household purposes shall also be subject to the allocation of arbitration costs and other requirements of the JAMS’ policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS’s rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Arbitrations Rules.
If you prevail in arbitration, you may seek an award of reasonable attorneys’ fees and expenses, to the extent permitted under applicable law. Treat will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration, unless the arbitrator finds that either the substance of your Dispute or the relief sought in your Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations.
13.5 Waiver of Jury Trial. YOU AND TREAT 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 Treat are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in of the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.6 Waiver of Class and Other Non-Individualized Relief. ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED OR ARBITRATED ON A CLASS, COLLECTIVE OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, effect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class of Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Treat agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration may be litigated in the federal courts located in the State of California. All other Disputes shall be arbitrated. This subsection does not prevent you or Treat from participating in a class-wide settlement of claims.
13.7 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Treat agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Treat by or with the assistance of the same law firm, group of law firms or organizations within a thirty (30) day period (or otherwise in close proximity), JAMS (1) will administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Treat.
You and Treat agree to cooperate in good faith with JAMS to implement the Batch Arbitration approach including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.8 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: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Treat 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 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.
13.9 Severability. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, 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.
13.10 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Treat.
13.12 THIRD-PARTY SERVICES. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Treat. Treat is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Treat provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
14. GENERAL PROVISIONS.
14.1 ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES 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. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
14.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Treat agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of California.
14.3 Electronic Communications. The communications between you and Treat may take place via electronic means, whether you visit the Services or send Treat e-mails, or whether Treat posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Treat in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Treat 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. (“E-Sign”).
14.4 Release. You hereby release Treat Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Treat Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Treat Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Treat 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].
14.5 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Treat’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.6 Force Majeure. Treat shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org and 302 Warren St. #4, Brooklyn, NY 11201. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
14.9 Notice. Where Treat requires that you provide an e-mail address, you are responsible for providing Treat with your most current e-mail address. In the event that the last e-mail address you provided to Treat is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Treat’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Treat at the following address: 195 Montague St. Brooklyn NY 11201. Such notice shall be deemed given when received by Treat by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.11 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.12 Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States 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 the Services, 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 “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services 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 products, services or technology provided by Treat 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 Treat products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.13 Consumer Complaints. 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14.14 Entire Agreement. The 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.