Terms of service

STELLA BLUE – TERMS OF SERVICE

Last Updated: November 15, 2022

IMPORTANT: These Terms of Service contain an arbitration clause and class action waiver in Section 9, which govern how disputes between us will be resolved.  These provisions affect your legal rights, so please read them, and these entire Terms of Service, carefully.

Welcome to Stella Blue!  Stella Blue is an offering from Barstool Sports, Inc.  (“Company”, “we” or “us”).  By using our website or app (our “Platform”) or buying our coffees or other products (our “Products”), you agree to these Terms of Service (these “Terms”).  If you do not understand or agree to these Terms, you may not use the Platform.

We may modify these Terms from time to time by updating these Terms online, effective as of the “Last Updated” date above.  You agree to any modifications by continuing to use the Platform or purchase Products after the “Last Updated” date above.  Review these Terms regularly to stay updated on any changes.

These Terms also incorporate our Privacy Policy, Shipping Policy & Returns Policy, and any other supplemental terms or policies made available by us on the Platform from time to time.

  1. USE: ACCOUNTS
    1. You represent that you are 18 years of age or otherwise of legal age to form a binding contract in your jurisdiction.  If you use the Platform on behalf of a company, then “you” includes you and that entity, and you represent and warrant that (a) you are authorized to bind the company to these Terms, and (b) you agree to these Terms on the company’s behalf.
    2. You can browse the Platform and make one-time purchases without an account.  However, in order to create a Subscription (as defined below), you will be required to register for an account (each, an "Account").  When creating or updating an Account, you are required to provide us with certain personal or sensitive information, such as your e-mail address, your name, billing/shipping address and payment information.  This information will be held and used in accordance with our Privacy Policy.
    3. You may never use another's Account without permission or permit another to use your Account.  You are prohibited from registering a new Account if you have previously had an Account terminated.
    4. You are responsible for (a) keeping confidential any password that you created to use any aspect of the Platform requiring registration and (b) restricting access to your computer or mobile device.  You are fully responsible for all activities that occur within your Account.  You must notify us immediately of any breach of security or unauthorized use of any part of your Account.
    5. Without limiting anything in these Terms we reserve the right, in our sole discretion, to restrict, suspend, or terminate your Account (including any then-current subscriptions on your Account) and/or your access to all or any part of the Platform at any time, for any or no reason, with or without prior notice, and without liability, including in the event that we stop offering any aspect of the Platform.
  2. PRODUCTS
    1. Product Descriptions.  We strive to describe our Products as accurately as possible.  However, we do not warrant that Product descriptions or other content are accurate, complete, reliable, current or error-free, as we rely upon our third party supplier(s) and/or other third party partners to provide information regarding the Products.  If a Product you receive is not as described, please contact us at your earliest opportunity at [email protected] for assistance.  However, your sole remedy if we cannot find a solution is to return the Product in accordance with our Shipping Policy & Returns Policy.
    2. Product Availability.  All Products are subject to availability.  We reserve the right to change the Products offered at any time and without notice.  The Platform may contain information about the availability of Products at the time of ordering, but the quantity of inventory actually available can change significantly and without notice.  If a Product is not available for shipping promptly after you place your order, you will be notified, and you may choose to order a different item that is then-currently available, wait until the Product is available (if it will be available again) or cancel your order.  The Company is not liable if Products are not in stock or otherwise not available.
    3. Product Selection.  From time to time, Products may become temporarily or permanently removed from the Stella Blue catalog based on seasonality or other factors.  In the event a particular Product (such as a single-origin coffee) in your Subscription becomes unavailable, we will notify you.  The Company may, at its sole and exclusive option, elect to send you a substitute Product, the price of which will not exceed the price of the originally specified Product by more than $5.  In all instances, you will be charged the price of the Product as listed on the Platform at the time the Product is shipped.
    4. No Resale.  You are not permitted to resell or otherwise use the Products for commercial purposes.
  3. ORDERS FOR PRODUCTS
    1. Subscriptions.  We may offer a variety of Product subscription plans (each, a “Subscription”) including, for example, the Coffee Club and various Subscription options for our individual coffee pods, ground coffee, and coffee beans.  For more information about our Subscriptions, please visit the Coffee Club FAQ and Subscription FAQ.  To begin a Subscription, you must first select your desired Subscription and then complete payment for your Subscription through our third-party payments provider (“Payment Processor”).  You will ensure that a valid and current payment method is available for payment of recurring Subscription fees.  We will suspend or cancel your Subscription if our Payment Processor is unable to process payment using your existing payment information.
    2. Your use of our Payment Processor, and the other third-party platforms and services we use to fulfill Subscriptions and provide our Platform, is governed by those third parties’ contractual terms.  You acknowledge that we have no control over, and are not a party to, such third-party terms.
    3. Once your Subscription is processed, you will receive your Products in accordance with the cadence and terms of the Subscription you purchased.  Subscriptions are generally offered for 14-day, 21-day, 30-days, 60-day, or (in the case of the Coffee Club) 365-day periods of time (each, a “Period”) and will automatically renew at or just prior to the end of each Period using the payment method on file with our Payment Processor, unless you cancel your Subscription prior to the end of the then-current Period (as indicated in your Account).  You will continue to receive Products until the end of your Subscription period.
    4. We reserve the right to change the cost of our Subscriptions at any time.  Such change will become effective only after the expiration of the then-current Period and after we provide you with notice of such change no fewer than ten (10) days before the end of the then-current Period.  You may cancel a Subscription at any time as set forth in the next section below.  Please note, however, that cancellations are effective at the end of your current Subscription period.  See our Shipping Policy & Returns Policy for information regarding subscription refunds.
    5. Subscription Term and Cancelation.
      1. Our Subscriptions are continuous. Subscriptions begin the date you first purchase a Subscription and continue until the end of the last monthly period of your Subscription(s). We are free to terminate your Subscription, for any reason, at any time, at our sole discretion.
      2. You may cancel your Subscription at any time by following the instructions outlined in the Subscription FAQ under “How Do I Cancel My Subscription”t.  Depending on your recurring cut-off date, your cancellation will be effective immediately after you complete the cancellation process.  You are responsible for all Subscription charges (in addition to any applicable taxes and other charges) incurred before the effective date of your cancellation.
      3. In the event you cancel your Subscription, we may still send you promotional communications about Stella Blue, unless you opt out by following the unsubscribe instructions provided therein.
    6. One-Time Orders.  Certain Products can also be bought individually, without a Subscription.  One-time purchases are subject to all relevant provisions of these Terms.
    7. Payment.
      1. You acknowledge and agree that all payment information you provide to us is accurate, current and complete.  You represent and warrant that you have the legal right to use the payment method you provide to us or our Payment Processor.
      2. When you authorize a purchase, you (a) agree to pay the price for such purchase as set forth in the applicable Service, as well as all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (b) authorize our Payment Processor to charge your credit card or other payment method for the Full Purchase Amount.
      3. All transactions are in U.S.  dollars (“USD”) unless otherwise specified at point of purchase.  Orders will not be processed until payment has been received in full, and any holds on your account by our Payment Processor are solely your responsibility.
      4. The Platform may allow you to designate purchases to be delivered or provided at a future date.  In such instances, you acknowledge and agree that we may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of shipment or provision of the applicable Product.
    8. Order Acceptance; Shipment.
      1. Once we receive your order for a Product, we will provide you with an order confirmation.  Your receipt of an order confirmation does not signify our acceptance of your order nor confirmation of our offer to sell; we are simply confirming that we received your order.  We reserve the right at any time after receiving your order to accept or decline your order for any reason and in our sole discretion.  We will generally bill your payment card at the time of your order (for one-time orders and new subscriptions) or on the first day of your next renewal period (for renewals of existing subscriptions)
      2. Title and risk of loss for any purchases of physical Products pass to you upon our delivery to our carrier.  We reserve the right to ship partial orders (at no additional cost to you).  For more information, see our Shipping Policy & Returns Policy.  While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific date or time.
    9. Promotional Codes.  We may offer certain promotional, referral, discount, and coupon codes or similar offers (“Promos”) that may be redeemed for discounts on future Products or other features related to the Platform, subject to any additional terms that the Company establishes.  You agree that Promos: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promos; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
    10. Free Trials.  From time to time, to the extent legally permitted, we may offer free trials of certain Subscriptions for specified periods of time without payment.  If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration.  ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL.  INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTION 3(e) ABOVE.  PLEASE NOTE THAT YOU MAY NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN.  WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
    11. Gift Cards.  Tangible and/or digital gift cards containing stored money value may be offered by us for the purchase of Products (“Gift Cards”).  You acknowledge that the Company does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to, or alteration, theft, or destruction of a Gift Card or Gift Card code that results from any action by you or a third party.  You also acknowledge that we may suspend or prohibit use of your Gift Card if your Gift Card or Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner.  If your Gift Card code stops working, your only remedy is for us to issue you a replacement Gift Card code.  By purchasing a Gift Card, you represent and warrant to the Company that use of the Gift Card will comply with these Terms and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers.  Gift Cards cannot be used to purchase other gift cards, reloaded, resold, used for payment outside of the Platform, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law).  Gift Cards do not expire, and the Company will not assess a service fee or dormancy fee with respect to a Gift Card.
    12. Gifting Subscriptions.  We may offer you the ability to purchase subscriptions for other people through the Platform (“Gifts”).  To the extent we offer any Gift packages, please visit the applicable Gifts page and/or our other help pages for more information.  When you purchase a Gift, we will send an email to the Gift recipient that can be used to redeem the Gift.  The recipient may be asked to create an account to redeem the Gift.  Gifts are not refundable or redeemable for cash, unless otherwise required by applicable law.  However, Gifts do not expire, and any unused balance will be placed in the Gift recipient’s Account.
  4. USER CONTENT
    1. In connection with your use of the Platform, you may be able to post, upload, or submit content to be made available through the Platform (“UGC”), such as Product reviews.  If you decide to share UGC with others through the Platform or third parties, you understand that it will be viewable by others in accordance with our Privacy Policy.  You agree that you are solely responsible for UGC and for your use of any interactive features and areas of the Platform. 
    2. We are not responsible or liable for any UGC.  Although we have no obligation to screen, edit or monitor UGC, we reserve the right, and have absolute discretion, to remove, screen or edit UGC posted or stored on the Platform at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any UGC you post or store on the Platform at your sole cost and expense.
  5. RIGHTS WE GRANT YOU
    1. License Grant.  Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Platform.  This license has the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by us, in the manner permitted by these Terms and subject to the use restrictions described below.
    2. Restrictions.  You may not do any of the following, unless applicable laws or regulations prohibit these restrictions, or you have our written permission to do so:
      1. download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Platform;
      2. use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Platform;
      3. exploit the Platform for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation; 
      4. attempt to gain unauthorized access to, interfere with, damage or disrupt the Platform, or the computer systems or networks connected to the Platform;
      5. violate any applicable law or regulation in connection with your use of the Platform; or
      6. access or use the Platform in any way not expressly permitted by these Terms.
    3. Violation of these Terms may result in suspension or termination of your access to the Platform, or criminal or civil liability.  We may monitor your conduct, including, without limitation, reviewing user generated content to determine whether you are in violation.
    4. Termination of License and Your Account.  If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically.  Additionally, the Company may suspend, disable, or delete your Account and/or the Platform (or any part of the foregoing) with or without notice, for any or no reason.  If the Company deletes your Account for suspected breach of these Terms, you are prohibited from re-registering for the Platform under a different name.  In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of UGC, but shall not be responsible for the deletion of or failure to delete UGC.  All sections which by their nature should survive termination of these license terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you.  Termination will not limit any of our other rights or remedies at law or in equity.
  6. OWNERSHIP OF CONTENT
    1. Proprietary Rights.  All materials contained on the Platform, including all content, and the software, graphics, text and look and feel of the Platform, and all intellectual property, including trademarks, logos and service marks (“Marks”), copyrights, patents and other intellectual property rights related thereto (collectively, the “Proprietary Materials”), are owned or controlled by the Company, and/or our subsidiaries or affiliated companies.  You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any Proprietary Materials, or any other protectable aspects of the Platform, in whole or in part, unless specifically stated otherwise.  You are not permitted to use the Marks without our prior written consent.
    2. Rights in UGC.  As a condition of your use of the Platform, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify, adapt and create derivative works (either alone or as part of a collective work) from UGC.  As part of the foregoing license grant you agree that (a) other users of the Platform shall have the right to comment on and/or use, publish, display, modify or include a copy of UGC as part of their own use of the Platform, and (b) we have the right to make any of UGC available to third parties, so that those third parties can distribute, make derivative works of, comment on and/or analyze your UGC on other media and services (either alone or as part of a collective work).  By posting or submitting UGC through the Platform, you represent and warrant that you have, or obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for UGC.  You agree that UGC will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
    3. Notice of Infringement – DMCA Policy.  If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Platform have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
      1. identification of the copyrighted work that is claimed to be infringed;
      2. identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
      3. information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
      4. a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
      5. a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
      6. the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
    4. Notices of copyright infringement claims should be sent by e-mail to [email protected].  It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.  A user of the Platform who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA.  When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion.  To file a counter-notification with us, you must provide a written communication (by fax, mail or email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA.  Please note that you will be liable for damages if you materially misrepresent that content or an activity does not infringe the copyrights of others.
  7. THIRD PARTY PLATFORM AND MATERIALS
    1. Use of Third Party Materials on the Platform.  Third-party links on the Platform may direct you to third-party websites that are not affiliated with us.  You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third party materials or websites.  We do not warrant or endorse, nor assume liability or responsibility to you or any other person for, any third-party services, materials, products, websites, or services.  Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the third-party, your state Attorney General, or the Federal Trade Commission.
  8. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
    1. Disclaimers.  Your access to and use of the Platform are at your own risk.  You understand and agree that the Platform are provided to you on an “AS IS” and “AS AVAILABLE” basis.  Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
    2. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Platform; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Platform; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Platform will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) the actions of its users or the contents of any user content, and (f) the deletion of, or the failure to store or transmit, UGC and other communications maintained by the Platform.  No advice or information, whether oral or written, obtained from the Company Entities or through the Platform, will create any warranty or representation not expressly made herein.
    3. The Company Entities also disclaim any responsibility or liability with respect to any adverse consequences you, or anyone with whom you share your Product experience.  In particular, although many studies indicate that coffee may benefit human health, we are aware that it may cause allergic reactions or other problems for some people.  Make your own determination of whether consuming coffee is appropriate for you and prepare coffee in a way that will not cause you harm.
    4. Limitations of Liability.
      1. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES.
      2. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. 
      3. THE COMPANY ENTITIES’ TOTAL LIABILITY FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, FOR PRODUCTS PURCHASED ON THE SERVICES IN THE SIX (6) MONTHS PRIOR TO WHEN THE CLAIM AROSE. 
      4. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 
    5. Indemnification.  You agree to indemnify and hold the Company Entities harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (1) your breach of these Terms and/or any of your representations, warranties, covenants and/or agreements set forth herein or (2) our distribution, exploitation or other use of UGC.
  9. ARBITRATION AND CLASS ACTION WAIVER
    1. Informal Process First.  You agree that in the event of any dispute between you and the Company Entities, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
    2. Arbitration Process.  Any controversy or claim arising out of or relating to these Terms or any related agreement, their enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of their provisions, shall be determined by binding arbitration.  The arbitration proceedings shall be held and conducted by a single arbitrator in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), as modified by these Terms.  Such arbitration shall occur in New York, New York, and be initiated by any party in accordance with the JAMS Rules.  The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations.  Discovery issues shall be decided by the arbitrator.  Post-hearing briefs shall be permitted.  The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s).  In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of these Terms, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted.  The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award.  The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of New York or federal law, or any of them, as applicable to the claim(s) asserted.  Judgment on the award may be entered in any court of competent jurisdiction.  The parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration.  But, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, shall be determined by arbitration under this paragraph.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses). 
    3. BY AGREEING TO ARBITRATE DISPUTES, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE IRREVOCABLY WAIVING ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITIES CONTEMPLATED HEREBY.
    4. Class Action Waiver.  You agree to pursue any arbitration in an individual capacity and not as class representative or class member in any purported class action proceeding.
    5. Opt-Out.  You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out by emailing [email protected] with “Arbitration Opt Out” in the subject line.   The notice must be sent to the Company within thirty (30) days of your registering to use the Platform or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms.  If you opt-out of these arbitration provisions, the Company also will not be bound by them.
  10. ADDITIONAL PROVISIONS
    1. Electronic Communications.  When you use the Platform or send emails to us, you are communicating with us electronically.  You consent to receive communications from us electronically.  We will communicate with you by email or by posting notices through the Platform.  You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications be in writing.
    2. Support and Contact.  Subject to the other provisions of these Terms, we will attempt to help you with any questions about or problems you may have with Products, the Platform or any of your purchases through it.  To reach our customer support team, please email [email protected].  You may also contact us with any other questions you have about these Terms.
    3. International Access.  The 11/12/AppPlatform may be accessed from countries other than the United States, but we do not currently ship any Products outside of the United States.
    4. Modifications of Platform.  We may change or discontinue any aspect, service or feature of the Platform and/or Platform at any time, in our sole discretion.
    5. No Third-Party Beneficiaries.  The parties agree there are no third-party beneficiaries intended under these Terms. 
    6. No Joint Venture.  You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of the Company. 
    7. No Waiver.  The failure of either party to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. 
    8. Force Majeure.  In no event will we be liable to you, or be deemed to have breached these Terms, for any failure or delay in performing its obligations hereunder, to the extent such failure or delay is caused by any circumstances beyond the Platform’s reasonable control including (without limitation), weather conditions, pandemics, acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; quarantines, power or internet outages, or embargoes.
    9. Injunctive Relief.  You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and we shall be entitled to equitable relief in addition to any remedies hereunder or at law without a bond, other security or proof of damages.
    10. Applicable Law.  The Platform are created and controlled by us in the State of New York.  As such, the laws of the State of New York will govern these Terms, without giving effect to any provisions of New York law that direct the choice of another state’s laws.  Subject to Section 9 above (Arbitration), you hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in the State of New York for any litigation arising out of or relating to use of or purchase made through the Platform (and agree not to commence any litigation relating thereto except in such courts), waive any objection to the laying of venue of any such litigation in a New York court and agree not to plead or claim in any New York Court that such litigation brought therein has been brought in an inconvenient forum.
    11. California Residents.  If you are a California resident, in accordance with Cal.  Civ.  Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Platform 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.
    12. Miscellaneous. 
      1. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
      2. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. 
      3. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. 
      4. The section headings used herein are for reference only and have no legal effect. 
      5. The Platform are operated by us in the United States.  Those who choose to access the Platform from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. 
      6. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.