BONNE MAMAN ONLINE CUSTOMER AGREEMENT
Last Modified: August 13, 2020
Effective Date: August 13, 2020
1.1. Introduction. The Bonne Maman Website located at https://www.bonnemaman.us/ (together with any subdomains of bonnemaman.us, this “Site” or the “Bonne Maman Website”) is provided by Andros Foods USA, Inc., a Delaware corporation (referred to in this Customer Agreement as “Andros Foods USA”, “we”, “us”, or “our”). The use of this Site is governed by this Bonne Maman Online Customer Agreement (this “Customer Agreement”) between each visitor to this Site (referred to in this Customer Agreement as “you” or “your”) and Andros Foods USA. You agree to read this Customer Agreement carefully.
1.2. Scope of Contract. You acknowledge that this Customer Agreement is a legally binding contract between you and Andros Foods USA, even though it is not physically signed, and you acknowledge that this Customer Agreement applies to all Orders you place through the Bonne Maman Website. This Customer Agreement does not apply to any products or services that we provide to you pursuant to a separate written contract signed by Andros Foods USA. In this Customer Agreement, you and Andros Foods USA are sometimes referred to individually as a “party” and collectively as the “parties”, and “User” (and “user”) refers to a person who accesses or uses the Bonne Maman Website.
3. Modification. As technology changes and as our business grows and develops, we may modify this Customer Agreement and our Policies from time to time. When we modify this Customer Agreement or our Policies, we will give you notice by posting the amended Customer Agreement or Policies on the Bonne Maman Website. The amended Customer Agreement and Policies will include an effective date, and they will be effective on that date. However, any changes to the governing law or dispute resolution provisions set forth in Sections 12 and 13 will not apply to any disputes for which Andros Foods USA and you have received actual notice on before such Effective Date. If you continue to access or use this Site after the Customer Agreement or our Policies are amended, you agree to be bound by the revised Customer Agreement and Policies. If you do not agree with the updated Customer Agreement and Policies, you agree that you will promptly (1) discontinue your use of the Bonne Maman Website, and (2) contact us at email@example.com to request that your Bonne Maman Account be closed. If you choose to place any Orders through this Site, you agree that you will review this Customer Agreement and our Policies before placing each Order and that by placing an Order you will be agreeing to the Customer Agreement and Policies in effect on that date.
4. Definitions. As used in this Customer Agreement:
4.1. “Affiliate” (collectively, “Affiliates”) means, with respect to a person, any other person directly or indirectly controlling, controlled by or under common control with the subject person.
4.2. “Andros Parties” (each, a “Andros Party”) means Andros Foods USA, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of any of the foregoing.
4.3. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, all worldwide trademark, patent, copyright and trade secrets rights.
4.4. “Order” (collectively, “Orders”) means an order placed via the Bonne Maman Website by you or through your Bonne Maman Account for products or services sold, shipped, provided, or performed by Andros Foods USA.
4.5. “Order Confirmation” (collectively, “Order Confirmations”) means the order confirmation or receipt displayed or sent to you for an Order.
4.6. “Ordered Products” (each, an “Ordered Product”) means the products included in an Order.
4.7. “Order Total” means, with respect to an Order, the amount you are required to pay for such Order, as displayed through the Bonne Maman Website during the Order checkout process.
4.8. “Payment Information” means credit card numbers, debit card numbers, CVV/CVC codes, expiration dates, and PIN numbers.
4.9. “Person” (or “person”) means any individual, corporation, company, partnership, trust, unincorporated organization, joint venture, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
4.10. “Your Information” means your Account Information, any information you provide to us in connection with placing an Order, and all content (including comments, reviews, text, photos, graphics, audio, video, and other materials) you upload, post, send, submit, transmit, or otherwise transfer (a) to us or (b) to or through the Bonne Maman Website.
5. Your Bonne Maman Account and Your Information.
5.1. Registration. You may choose to register with Andros Foods USA and create an account (a “Bonne Maman Account”). Our registration process currently requires you to complete a signup form and provide your e-mail address and select a password (your “Login Credentials”). We may permit or require you to provide additional information in order to use certain features of the Bonne Maman Website or place Orders. As used in this Customer Agreement, “Account Information” means all information associated with your Bonne Maman Account. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, we retain the right, in our sole discretion, to suspend or terminate your Bonne Maman Account and your access to the Bonne Maman Website.
5.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the Login Credentials used to access your Bonne Maman Account. You acknowledge and agree that you are responsible for any activities that occur through your Bonne Maman Account (including paying for all Orders placed through your Bonne Maman Account), whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your Bonne Maman Account and of any unauthorized use of your Bonne Maman Account. We will not be liable for your losses caused by any unauthorized use of your Bonne Maman Account, and you acknowledge and agree that you may be liable for the losses of the Andros Parties or others due to such unauthorized use.
5.4. Permission to Use the Bonne Maman Website. Subject to your compliance with this Customer Agreement, we grant you permission to access and use the Bonne Maman Website. The permission for you to use the Bonne Maman Website is further conditioned on the following: (a) you will not permit any person to access or use the Bonne Maman Website through your Bonne Maman Account; (b) you will not attempt to reverse engineer, alter, or modify any part of the Bonne Maman Website; and (c) you will comply with all of the provisions of this Customer Agreement. If you violate this Customer Agreement, your permission to use the Bonne Maman Website will automatically terminate, and you will not be entitled to any refund of payments made to us. Your permission to access and use the Bonne Maman Website is personal, non-exclusive, non-assignable, non-sublicensable, and may be limited or revoked by us at any time. We reserve the right, in our sole discretion, to refuse service, to suspend or terminate your Bonne Maman Account.
5.5. Contacting You. If you request information from us, sign up for our newsletter, or place an Order, you agree that we may (a) send you information and marketing materials via e-mail, such as information about your Orders and about our products, promotions, contests, drawings, sales, and other information, and (b) send you our periodic e-mail newsletters. You may opt-out of receiving our newsletters and other marketing e-mails by clicking the link provided at the bottom of each such e-mail.
6.1. Product Descriptions and Pricing. We attempt to provide product descriptions that are as accurate as possible. However, we do not warrant that product descriptions or other content on the Bonne Maman Website are accurate, complete, reliable, current, or error-free. Prices and availability are subject to change without notice. We cannot confirm the price of a product until you place your Order. In the event of a pricing error, we may refuse or cancel any Orders placed for that Ordered Product. If the correct price of an Ordered Product sold by Andros Foods USA is higher than our stated price shown on this Site or in an Order Confirmation, we will, at our discretion, either contact you for instructions before shipping or refuse or cancel your Order and notify you of such cancellation.
6.2.2. Charge Backs. In no event are we responsible for any failure to process payment for any Orders. In the event of a charge back by a credit card company, or any similar action by a payment provider or payment processor (a “Charge Back”), you agree that we may suspend or cancel any affected Orders, redirect any shipments associated with such Orders, and/or suspend, close, or terminate your Bonne Maman Account. You agree that you will promptly reimburse us for any expenses or fees incurred by us as a result of such Charge Back.
6.3. Taxes. The product prices listed on the Bonne Maman Website do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Orders. If Andros Foods USA has the legal obligation to pay or collect Taxes for which you are responsible under this Section 6.3, we may include such taxes in the Order Total or invoice you separately for that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority, and you will pay such Taxes within thirty (30) days of receipt of the invoice therefor. For clarity, Andros Foods USA is solely responsible for taxes assessable against it based on its income, property, and employees.
6.4. Shipping, Title and Risk of Loss. The Ordered Products will be shipped within a reasonable period of time, subject to product availability. We may, in our sole discretion, without liability or penalty, make partial shipments to you of the Ordered Products. Orders will be shipped to the address specified by you through the Bonne Maman Website when you place your Order. All Ordered Products purchased from Andros Foods USA are made pursuant to a shipment contract, and the title and risk of loss for such Ordered Products pass to you upon our delivery to the carrier. We will not be liable for any delays, loss, or damage in transit, except to the extent caused by our gross negligence or willful misconduct.
6.5. Missing Products, Wrong Quantity, or Wrong Address. The quantity of any installment of Ordered Products as recorded by us upon dispatch from our facility is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. We will not be liable for any non-delivery of Ordered Products unless you give us written notice of the non-delivery within ten (10) days of the date when the Ordered Products would have been received in the ordinary course of events. Any liability of Andros Foods USA for non-delivery of any Ordered Products will be limited to delivering the missing Ordered Products within a reasonable time or refunding that portion of the Order Total that corresponds to the missing Ordered Products. If you provide us with an incorrect or invalid shipping address, you remain responsible for paying for the Order even if it is not delivered to you, and if you request a replacement, you will be responsible for paying for the replacement Order.
6.6. Returns, Replacements, and Refunds. All sales of Ordered Products are final and are made on a one-way basis and you have no right to return Ordered Products or receive a refund without our express, prior written authorization. However, we hope that the Andros Foods USA products meet and exceed your expectations, and if you are not completely satisfied with your Ordered Products, we invite you to contact us by phone at 914-514-2098 or by e-mail at firstname.lastname@example.org so that we may address your concerns.
6.7. Order Cancellations. All sales are final and you may not cancel any Orders. We reserve the right to cancel any Order, in whole or in part, at any time and for any reason, including for pricing errors, items that are out of stock or unavailable, or your violation of any provision of this Customer Agreement. If we cancel any of your Orders, in whole or in part, we will issue you a full refund for all payments received by us for the portions of the Order cancelled by us, which will be your sole and exclusive remedy in the event of such cancellation.
7. Intellectual Property Rights.
7.1. Generally. You acknowledge and agree that except as otherwise expressly stated in this Customer Agreement, all intellectual property associated with, or incorporated within, this Site and the content available on this Site, including all articles, product descriptions, photos, and other media and documents (collectively, the “Bonne Maman Materials”), together with all Intellectual Property Rights therein and thereto are owned by Andros Foods USA or its licensors. This Customer Agreement does not grant to you, and you shall not acquire, any right, title, or interest in or to this Site, any Bonne Maman Materials, any content available on this Site, or any Intellectual Property Rights associated with any of the foregoing, except for the following limited license: We grant you a personal, limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to access and make personal use of this Site. You may not use any of the Bonne Maman Materials in any manner that suggests an association between Andros Foods USA and any other person, entity, or organization. You may not (a) upload or post any of the Bonne Maman Materials to any other website, or (b) publicly make available, display, distribute, or perform any of the Bonne Maman Materials, or (c) engage in hotlinking or framing with respect to any of the Bonne Maman Materials. Notwithstanding any provision herein to the contrary, the foregoing limited license will automatically terminate upon the expiration, cancellation, or termination of this Customer Agreement or of your rights or licenses hereunder.
7.2. Our Trademarks. The names “Bonne Maman”, “Bonne Maman INTENSE Fruit Spreads”, “Bonne Maman French Fruit Treat”, “Bonne Maman Herbal Teas”, “Andros”, “Andros Foods”, “Andros Foods USA”, “Bowman Andros”, the slogans “Simple Ingredients, Homemade Taste” and “Made Simply, With Love”, and the graphics, icons, logos, service names, designs, and layouts associated with the foregoing names and slogans, this Site, and/or with our products are the trademarks, service marks, or trade dress (collectively, the “Marks”) of the Andros Parties in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
7.3. Feedback. We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, reviews, suggestions, or questions about the Andros Parties, the Bonne Maman Website, our products or services, or any other product or service (collectively, “Feedback”). You agree not to send us any information or ideas that are sensitive or confidential, and you agree that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback (whether submitted directly to us or to a third party review service, such as Trustpilot, that we link to from the Bonne Maman Website) in any and all media or distribution methods (now known or later developed), and to exercise all Intellectual Property Rights and publicity rights in and to your Feedback, including for example to display your Feedback along with your name on the Bonne Maman Website or in our marketing materials. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation or accounting to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback. The provisions of this Section 7.3 will continue to apply even if you stop using the Bonne Maman Website or our products or services and will survive the expiration, cancellation, or termination of this Customer Agreement.
8. Claims of Intellectual Property Infringement.
8.1. Generally. We respect the Intellectual Property Rights of others, and we require you and each of our users to do the same. We take claims of infringement of Intellectual Property Rights seriously, and we reserve the right, in our sole discretion, to block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit (collectively, “Remove” or “Removing”) any content (including text, photos, graphics, audio, video, and other materials) you or any other person uploads, posts, sends, submits, transmits, or otherwise transfers to or through the Bonne Maman Website (collectively, “User Content”). In appropriate cases and in our sole discretion, we may Remove User Content if properly notified that such User Content infringes a third party’s Intellectual Property Rights. It is our policy, in appropriate circumstances, to disable and/or close the Bonne Maman Accounts of users who are repeat infringers. Without limiting any of our rights to take other action described in this Customer Agreement, including immediately Removing or modifying Infringing Content (as defined below) without notice, we will, within a reasonable period of time following our receipt in writing of a final, non-appealable court order finding that specific User Content infringes a third party’s Intellectual Property Rights (“Infringing Content”), Remove or modify such Infringing Content in the jurisdictions to which such order applies.
8.2. Reporting Claims of Copyright Infringement.
8.2.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. Andros Foods USA will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Bonne Maman Website infringe your copyright, you may request removal of those materials (or access thereto) from the Bonne Maman Website by submitting written notification to the Andros Foods USA Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature;
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
- Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address);
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
- A statement that the information in the written notice is accurate; and
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Andros Foods USA’s designated Intellectual Property Agent to receive DMCA Notices is:
Andros Foods USA, Inc.
555 Theodore Fremd Avenue, Suite C-306
Rye, NY 10580
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Bonne Maman Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
8.2.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with Andros Foods USA (a “DMCA Counter-Notice”) by submitting written notification to the Andros Foods USA Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include substantially the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number (and if you wish to facilitate Andros Foods USA’s ability to contact you, your e-mail address); and
- A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if your address is outside of the United States, for any judicial district in which Andros Foods USA may be found), and that you will accept service of process from the person who provided us with the DMCA Notice at issue.
The DMCA allows Andros Foods USA to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Bonne Maman Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
8.3. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the Bonne Maman Website infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content (or access thereto) from the Bonne Maman Website by submitting written notification to the Andros Foods USA Intellectual Property Agent (designated above). The written notice (an “Infringement Notice”) must include all of the following:
- Your physical or electronic signature.
- Identification and description of the Intellectual Property Rights you believe to have been infringed. If you are reporting a claim of trademark infringement, your written notice must identify the exact trademark, service mark, or other mark (and if the mark is anything other than standard characters, you must include a copy of the mark), a description of the goods or services for which you believe you have trademark rights, the registration number and office of registration (if applicable), and a description of the reason why you believe the User Content (“Alleged Infringing Content”) causes a likelihood of confusion with or dilution of your mark.
- Identification of the Alleged Infringing Content you believe to be infringing in a sufficiently precise manner to allow us to locate it. Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address).
- A statement that you have a good faith belief that use of the Alleged Infringing Content is not authorized by the owner of the Intellectual Property Rights, the owner’s agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are the authorized owner of the Intellectual Property Rights or that you are authorized to act on behalf of the owner of the Intellectual Property Rights.
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user who is responsible for the applicable Alleged Infringing Content (the “Responsible Party”) and request that such Responsible Party provide a written response to the party alleging infringement (the “Asserting Party”) or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party’s contact information (name, address and e-mail address). If the Responsible Party’s response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party shall communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we shall Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 8.1 above.
ANDROS FOODS USA HAS NO RESPONSIBILITY OR LIABILITY TO ANY PERSON FOR REMOVING ANY USER CONTENT OR OTHER CONTENT OR MATERIALS. YOU AND EACH USER EXPRESSLY AND FOREVER WAIVE ALL CLAIMS AGAINST THE ANDROS PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY USER CONTENT OR OTHER CONTENT OR MATERIALS.
You agree that if you knowingly materially misrepresent that User Content or activity on the Bonne Maman Website is infringing Intellectual Property Rights, you will be held liable for (and will reimburse and pay the Andros Parties for) costs and fees (including attorneys’ fees) and other damages incurred by Andros Foods USA in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
9. Advertising.This Site may include advertising, which may be targeted to you based on information that you provide to us, your use of this Site, and other information. In exchange for us granting you permission to access and use this Site, you consent to the Andros Parties (and our third party providers, partners, and affiliates) placing such advertising on this Site.
10. Indemnification. You agree to indemnify, defend, and hold harmless the Andros Parties from, against, and with respect to any and all liabilities, claims, losses, damages (including property damage and all incidental, consequential, punitive, special, and exemplary damages), injuries (including personal injury, sickness, and death), interest, fines, taxes, premiums, assessments, penalties, costs, and expenses (collectively, “Claims”), including any and all attorneys’ fees, paraprofessionals’ fees, and expenses incurred in the defense of Claims (whether or not a suit is instituted and, if so instituted, through all trial and appellate levels), arising out of or related to: (a) your use of and access to the Bonne Maman Website; (b) the use of your Bonne Maman Account (whether by you or any other person); (c) your breach or violation of any provision of this Customer Agreement; (d) our exercise of any rights or licenses granted by you to us (including the use of Your Information and Feedback); (e) any inaccuracy in or breach of any of the representations or warranties made by you; (f) your violation or alleged violation of any law or infringement of any third party right, including any Intellectual Property Rights or privacy rights; (g) your negligence, recklessness, or willful misconduct; or (h) any claim that your use of the Bonne Maman Website caused damage to a third party. Andros Foods USA will have the exclusive right: (i) to select legal counsel to defend Claims, (ii) to direct the defense or settlement of Claims, (iii) to make, accept, or reject any offers of settlement of Claims, (iv) to enter into any settlement, and (v) to admit or deny fault or liability. You agree that if you breach any of the provisions of this Agreement, you will pay all costs, including reasonable attorneys’ fees, incurred by Andros Foods USA in connection with any litigation relating to such breach. Notwithstanding the foregoing, nothing in this Customer Agreement requires you to indemnify, defend, or hold harmless the Andros Parties (or any other person) for any Claims to the extent that such Claims occur as a result of our negligence, recklessness, or willful misconduct. The provisions of this Section 10 apply to the fullest extent permitted by applicable law. Your obligations under this Section 10 will continue even if you stop using the Bonne Maman Website and will survive the deletion, closure, expiration, or termination of your Bonne Maman Account or this Customer Agreement.
11. Disclaimers and Limitation of Liability - PLEASE READ CAREFULLY: This Section 11 includes important provisions that affect your legal rights.The provisions of this Section apply to the maximum extent permitted under applicable law. In addition, some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
11.1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE BONNE MAMAN MATERIALS AND YOUR USE OF THE BONNE MAMAN WEBSITE AND ALL CONTENT AND INFORMATION THAT IS PROVIDED OR CAN BE ACCESSED USING THE BONNE MAMAN WEBSITE IS AT YOUR OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
11.2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ANDROS PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE, RELATING TO (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR BONNE MAMAN ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY ANDROS FOODS USA PURSUANT TO SUCH ORDERS), or (B) THE BONNE MAMAN WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON. NONE OF THE ANDROS PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR BONNE MAMAN ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY ANDROS FOODS USA PURSUANT TO SUCH ORDERS), or (B) THE BONNE MAMAN WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON. WITHOUT LIMITING THE FOREGOING, NONE OF THE ANDROS PARTIES REPRESENTS OR WARRANTS THAT THE BONNE MAMAN WEBSITE OR ANY OTHER CONTENT OR INFORMATION PROVIDED IN CONNECTION THEREWITH WILL MEET ANY OF YOUR NEEDS OR EXPECTATIONS, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, or THAT DEFECTS WILL BE CORRECTED.
11.3. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE ANDROS PARTIES WILL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON ARISING OUT OF, RELATED TO, OR ASSOCIATED WITH (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR BONNE MAMAN ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY ANDROS FOODS USA PURSUANT TO SUCH ORDERS), (B) THE BONNE MAMAN WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, (C) THE PERFORMANCE OR NON-PERFORMANCE BY ANDROS FOODS USA OF ANY OF ITS OBLIGATIONS UNDER THIS CUSTOMER AGREEMENT, OR (D) THE OPERATION OR MALFUNCTION OF THE BONNE MAMAN WEBSITE, REGARDLESS OF WHETHER OR NOT WE, YOU, OR ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF THE ANDROS PARTIES TO YOU OR ANY OTHER PERSON FOR ANY REASON AND UPON ANY CAUSE OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) ARISING OUT OF OR RELATING TO (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR BONNE MAMAN ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY ANDROS FOODS USA PURSUANT TO SUCH ORDERS), (B) THE BONNE MAMAN WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, OR (C) THE OPERATION OR MALFUNCTION OF THE BONNE MAMAN WEBSITE, WILL BE LIMITED TO THE LESSER OF YOUR ACTUAL DAMAGES OR THE TOTAL AMOUNT PAID BY YOU TO ANDROS FOODS USA PURSUANT TO THIS CUSTOMER AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING SUCH LIABILITY. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON‑INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
11.5. SOME JURISDICTIONS MAY NOT ALLOW OR MAY OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS SECTION 11. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION 11 WILL CONTINUE TO APPLY EVEN IF YOU STOP USING THE BONNE MAMAN WEBSITE AND WILL SURVIVE THE DELETION, CLOSURE, EXPIRATION, OR TERMINATION OF YOUR BONNE MAMAN ACCOUNT OR THIS CUSTOMER AGREEMENT.
11.6. Notwithstanding any other provision of this Customer Agreement to the contrary, nothing in this Customer Agreement will be deemed to limit our liability for any personal injury, death, or property damage occurring on our premises to the extent that such personal injury, death, or property damages results from our negligence, recklessness, or willful misconduct. The limitations of liability set forth in this Section 11: (a) only apply to the extent permitted by law, and (b) do not apply to the extent that such liability results from our gross negligence, recklessness, or willful misconduct.
11.7. New Jersey Consumers. Notwithstanding any other provision of this Customer Agreement to the contrary, if you are a “consumer” within the meaning of N.J. Stat. § 56:12-15, nothing in this Customer Agreement waives (a) any rights you may have under N.J. Stat. §§ 56:12-14 - 56:12-18, or (b) any rights you may have to recover (i) your attorneys’ fees, (ii) your share of any arbitrators’ and administrative fees of arbitration, or (iii) your court costs, filing fees, and other reasonable costs of suit.
12. Governing Law and Interpretation.This Customer Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the applicable federal laws of the United States, without regard to the conflicts of law provisions of any jurisdiction. Without limiting the foregoing provision, you and Andros Foods USA expressly agree: (a) that the Virginia Uniform Computer Information Transactions Act, Virginia Code §§ 59.1-501.1 et seq. (“UCITA”), and the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) are expressly excluded from this Customer Agreement, (b) that any and all terms contained in UCITA or CISG will have no force or effect on any portion of this Customer Agreement, and (c) that UCITA and CISG do not apply to this Customer Agreement or any Orders placed by you or any other sales or transactions between you and Andros Foods USA. If any ambiguity or question of intent or interpretation arises, this Customer Agreement will be construed as if drafted jointly by Andros Foods USA and you, and no presumptions or burden of proof will arise favoring or disfavoring Andros Foods USA or you by virtue of authorship of any of the provisions of this Customer Agreement. We retain all rights at law and in equity to enforce the provisions of this Customer Agreement in accordance with applicable laws.
13. Dispute Resolution – PLEASE READ CAREFULLY: This Section 13 includes important provisions that affect your legal rights, including a limitation of the period of time for bringing a claim against us, a waiver of the right to a trial by jury, and an agreement that any court proceedings will take place only in certain locations in Virginia.
13.1. Injunctive Relief. You acknowledge and agree that any violation of this Customer Agreement may cause irreparable harm to the Andros Parties, for which monetary damages would not be an adequate remedy. Therefore, you agree that: (a) Andros Foods USA will be entitled to immediate injunctive relief to enjoin any actual, suspected, threatened, or potential violation by you of this Customer Agreement; (b) Andros Foods USA will be entitled to such injunctive relief without any obligation (i) to post a bond or other security, or (ii) to prove actual damages or to prove that monetary damages will not provide an adequate remedy; and (c) you will not oppose or otherwise challenge the appropriateness of injunctive relief or the entry by a court of competent jurisdiction of an order granting injunctive relief.
13.2. Service of Legal Process. To the extent permitted by law, if your Account Information does not contain your current and accurate physical address (or if we are unable, after reasonable efforts, to effect service of process on you at such physical address), you hereby irrevocably agree to accept service of process by any means of communication associated with your Bonne Maman Account or through any contact information in Your Information, including service by U.S. mail, e-mail, short message service (SMS), messages or alerts displayed or sent to you through the Bonne Maman Website, or social media messages, posts, or tweets, and you waive any objections to service of process by such methods.
13.3. Time Period for Bringing Claims. TO THE EXTENT PERMITTED BY LAW: YOU MUST COMMENCE OR FILE ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO (A) THIS CUSTOMER AGREEMENT, (B) ANY ORDERS (AND ANY PRODUCTS PROVIDED OR SHIPPED BY ANDROS FOODS USA PURSUANT TO SUCH ORDERS), (C) THE BONNE MAMAN WEBSITE (OR THE THEREOF BY YOU OR ANY OTHER PERSON), (D) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR ANDROS FOODS USA OF ANY OF OBLIGATIONS UNDER THIS CUSTOMER AGREEMENT, OR (E) ACTUAL OR ALLEGED INFRINGEMENT BY YOU OR ANY OF THE ANDROS PARTIES OR AFFILIATES, OR THE BONNE MAMAN WEBSITE OF ANY INTELLECTUAL PROPERTY RIGHTS WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED. TO THE EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE THE RIGHT TO COMMENCE OR FILE ANY SUCH CLAIM OR ACTION UNDER ANY LONGER STATUTE OF LIMITATIONS.
13.4. Venue. Any and all claims or disputes arising out of or relating to (a) this Customer Agreement, (b) any Orders (and any products provided or shipped by Andros Foods USA pursuant to such Orders), (c) the Bonne Maman Website (or the use thereof by you or any other Person), (d) the performance or non-performance by you or Andros Foods USA of any of obligations under this Customer Agreement, or (e) actual or alleged infringement by you or any of the Andros Parties or Affiliates, or the Bonne Maman Website of any Intellectual Property Rights, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in Shenandoah County, Virginia. YOU AND ANDROS FOODS USA BOTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN ANY SUCH COURT (AND IN ANY OF THE APPROPRIATE APPELLATE COURTS THEREFROM) AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION (INCLUDING ANY OBJECTION BASED ON INCONVENIENT FORUM) WHICH YOU OR ANDROS FOODS USA MAY NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT.
14. Acceptable Use Policy. We want all of our customers and users to enjoy a high quality experience when using the Bonne Maman Website. You agree that you will not:
14.1.1. Send any content or materials to or through this Site that do not comply with this Customer Agreement;
14.1.2. Access or use this Site using the Bonne Maman Account of another user;
14.1.3. Circumvent, compromise, or undermine the security or integrity of this Site, or attempt to do so;
14.1.4. Probe, scan, or test the vulnerability of this Site, or any systems, networks, servers, computers, devices, or equipment owned or controlled by any of the Andros Parties or our users;
14.1.5. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of this Site, or any server, network, computer, device, system, or database owned or controlled by any of the Andros Parties (or any of our users) or related to, associated with, or connected to the Bonne Maman Website;
14.1.6. Use any automated device, process, or means (such as robots or spiders) to access or use the Bonne Maman Website for any purpose, including monitoring or copying any Bonne Maman Materials;
14.1.7. Attack the Bonne Maman Website via a denial-of-service or distributed denial-of-service attack;
14.1.8. Use the Bonne Maman Website in any manner that we believe could disable, overburden, damage, impair, or interfere with the proper operation of this Site;
14.1.9. Interfere with or disrupt the performance or integrity of the Bonne Maman Website or any data transmitted by or through the Bonne Maman Website;
14.1.10. Engage in any other conduct that, in our determination, restricts or inhibits anyone’s use or enjoyment of the Bonne Maman Website or that may harm any of the Andros Parties or our users or expose the Andros Parties or our users to liability; or
14.1.11. Transmit any viruses, Trojan horses, worms, malware, or other material which is malicious or technologically harmful through the Bonne Maman Website.
16. Force Majeure. The Andros Parties shall not be liable or responsible to you, nor be deemed to have defaulted or breached this Customer Agreement, for any failure or delay in fulfilling any Order or performing any term of this Customer Agreement if such failure or delay is caused by, results from, or arises out of any of the following (each, a “Force Majeure Event”): acts of God; fire, earthquake, tsunami, volcanic eruption, windstorm (including tornado or hurricane), or other natural disasters; epidemics, pandemics, or other outbreaks of disease; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, or explosion; government order or law; actions, embargoes or blockades; action by any Governmental Authority; national, state, or local emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; shortage of adequate utility services or transportation facilities; any other events or circumstances which are not within our reasonable control. If a Force Majeure Event continues uninterrupted for more than one hundred eighty (180) days, you will be entitled to give us written notice terminating any Orders affected by such Force Majeure Event. The provisions of this paragraph apply to any Force Majeure Event, whether in effect as of the date the Order was placed or occurring at any time thereafter, and regardless of whether such Force Majeure Event was known or was foreseeable on the date the Order was placed.
17. Termination.We reserve the right, without any liability to you, to modify, suspend, disable, delete, close, or terminate your Bonne Maman Account or Your Information (in whole or in part), and to suspend or terminate your permission to access and use the Bonne Maman Website for violation of this Customer Agreement, or for any other reason. If you wish to end your relationship with us, you may request the closure of your Bonne Maman Account at any time by contacting us at email@example.com. After the closure of your Bonne Maman Account, we may retain Your Information indefinitely for accounting, legal, and other purposes. This Customer Agreement and all rights and permission granted by Andros Foods USA to you will automatically terminate upon the closure, deletion, or termination of your Bonne Maman Account. Any termination, cancellation, or expiration of this Customer Agreement notwithstanding (and notwithstanding the closure, deletion, or termination of your Bonne Maman Account or your stopping using the Bonne Maman Website), Sections 5.3, 6.2, 6.3, 7, 8, 10, 11, 12, 13, 14, 16, and 19, and any provisions which are by their terms intended to survive and continue will so survive and continue.
19.1. Reservation of Rights. We reserve all rights relating to the Bonne Maman Website and the Bonne Maman Materials not expressly granted to you by this Customer Agreement.
19.2. Further Assurances. You agree to execute, acknowledge, and deliver all such further documents, and take such further action, as may be reasonably required to carry out and consummate the transactions contemplated by this Customer Agreement.
19.3. Severability; Non-Waiver. If any provision of this Customer Agreement is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and will not affect the validity or enforceability of any of the remaining provisions of this Customer Agreement. No waiver by us, and no failure by us to exercise any of our rights or remedies hereunder, will be deemed to constitute a waiver of such provision, right, or remedy in the future, or of any other provision, right, or remedy hereunder, unless such waiver is set forth in a written instrument signed by an authorized manager or officer of Andros Foods USA.
19.4. No Assignment; No Third Party Beneficiaries. This Customer Agreement is personal to you. Neither this Customer Agreement nor any of your rights or obligations may be sold, transferred, delegated, or assigned by you without our prior written consent, and any attempt to do so without such consent will be void, and no rights will devolve by operation of law or otherwise upon any assignee, receiver, liquidator, trustee, or other person. Subject to the foregoing, this Customer Agreement will be binding upon and inure to the benefit of the parties and their respective successors, assigns, and legal representatives. Nothing in this Customer Agreement is intended, nor will be deemed, to confer any rights or remedies upon any person other than the Andros Parties and you.
19.5. Headings and General Construction. The descriptive headings in this Customer Agreement are inserted for convenience only and do not constitute a part of this Customer Agreement. Throughout this Customer Agreement, unless the context requires otherwise, the use of the singular includes the plural, and vice versa. The words “include”, “includes”, and “including” are not limiting, the word “or” is not exclusive, and the word “herein” refers to this Customer Agreement.
19.6. Entire Agreement. This Customer Agreement contains the entire agreement and understanding between you and us with respect to (a) your use of the Bonne Maman Website and the Bonne Maman Materials, and (b) all Orders placed by you through the Bonne Maman Website (and any products provided or shipped by Andros Foods USA pursuant to such Orders), and this Customer Agreement supersedes and replaces any other prior or contemporaneous agreements, terms, or conditions applicable to the subject matter of this Customer Agreement.