TERMS OF SALE
Last updated: [7th of January 2022]
If you do not agree to these Website Terms, you must not access or use the Services.
The Services are not intended for users younger than 18. If you are not at least 18, you must not access or use the Services. By agreeing to these Website Terms, you represent and warrant to us that: (i) you are at least 18 years of age; (ii) you have not previously been suspended or removed from the Services; and (iii) your registration and your use of the Services complies with all applicable laws and regulations.
SECTION 1: Services Overview. The Services may include message boards, chat rooms, personal web pages, profiles, forums, bulletin boards, and other interactive features, such as the “Create Your Own Wrapper” personalization tool, that allow users to post, submit, publish, display, or transmit to other users or other persons content or materials (collectively, "User Content"). All User Content must comply with these Website Terms. We reserve the right to withdraw or amend the Services, and any service or material we provide with the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of the Services.
SECTION 2: Changes to the Website Terms. We may revise these Website Terms from time to time in our sole discretion. All changes are effective immediately when we post them and will apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Website Terms means you accept and agree to the changes. We encourage you to check these Website Terms often for updates.
SECTION 3: Accessing the Services and Account Security.
3.2 If you choose, or are provided with, a username, password, or any other information as part of our security procedures, you must treat such information as confidential and you must not disclose it to any other person or entity. You acknowledge that your account is personal to you and you agree to accept responsibility for all activities that occur under your account. You agree not to provide any other person with access to the Services or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. We have the right to disable any username, password, or other identifier at any time if, in our opinion, you have violated any provision of these Website Terms.
SECTION 4: Intellectual Property.
4.1 The Services and all its contents, features, and functionality (including but not limited to all information, software (including source code and object code), text, products, displays, images, video, and audio, and the design, selection, and arrangement thereof), and all other elements of the Services (collectively, the “Materials”) are owned by TC, its licensors, or other providers of such material, and protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Except as expressly authorized by TC or as required by applicable law, you may not make use of the Materials. TC reserves all rights to the Materials not granted expressly in these Website Terms.
4.2 Subject to these Website Terms, TC grants you a limited, revocable, non-exclusive, non-sublicensable license to use the Services for your personal and non-commercial purposes. The license in this Section 4 states the entirety of your rights with respect to the Services. We reserve all rights not expressly granted to you in these Website Terms.
SECTION 5: Trademarks. The name TONY’S CHOCOLONELY, all other TC names and trademarks, and all related names, trademarks, logos, designs and slogans are trademarks and trade names of TC or its licensors. You must not use such marks without our prior written permission. All other names, logos, designs, and slogans on the Services are the trademarks of their respective owners
SECTION 6: Sales Terms and Other Terms and Conditions. See our Sales Terms for the terms and conditions governing online sale and delivery of our products, which are hereby incorporated into these Website Terms. Additional terms and conditions may apply to specific portions, services, or features of the Services. All such additional terms and conditions are hereby incorporated by this reference into these Website Terms.
SECTION 7: Prohibited Uses. You may use the Services only for lawful purposes and in accordance with these Website Terms. You agree not to:
7.1 Use the Services in any way that violates any federal, state, local, or international law or regulation (including, without limitation, any law regarding the export of data or software to or from the US or other countries).
7.2 Use the Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
7.3 Perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the accounts of others without permission, or falsifying your age or date of birth.
7.4 Violate the rights of third parties, including by infringing or misappropriating third party intellectual property rights.
7.5 Sell or otherwise transfer the access granted herein or any Materials or any right or ability to view, access, or use any Materials.
7.6 Send, knowingly receive, upload, download, use, or re-use any material that does not comply with the User Content standards in Section 8 of these Website Terms.
7.7 Transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
7.8 Interfere with the operation of the Services or any user's enjoyment of the Services, including without limitation by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making unsolicited offers or advertisements to other users of the Services; (iii) collecting personal information about users or third parties without their consent; (iv) using any device, software, or routine that interferes with the proper working of the Services; (v) attacking the Services via denial-of-service attack or distributed denial-of-service attack; or (vi) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services, or violating the regulations, policies, or procedures for those networks, equipment, or servers.
7.9 Use any robot, spider, or other automatic or manual device, process, or means to access the Services for any purpose, including monitoring, copying, or scraping any of the material or information on the Services.
7.10 Otherwise attempt to interfere with the proper working of the Services or engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm TC or users of the Services, or expose them to liability.
SECTION 8: User Content.
All User Content must comply with all federal, state, local, and international laws and regulations. Without limiting the foregoing, User Content must not:
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
Promote or include sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Contain personal attacks against other participants, name-calling, slurs, hate speech, or bigotry.
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
Impersonate any person or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
8.3 We may offer features that enable you to make User Content available to others (whether publicly or to a specified group). We cannot control what any third party may do with User Content and we are not responsible for the actions of any third party. Once User Content has been shared, those with access to it may be able to reshare, publish, re-use, modify, or otherwise exploit User Content, so please carefully consider what you choose to share before you share it.
8.4 You are solely responsible for User Content associated with your account and the consequences of uploading, posting, or sharing that User Content. By uploading, posting, or sharing User Content, you affirm, represent, and warrant that:
8.4.1 you are the creator and owner of the User Content, or you have the necessary licenses, rights, consents, and permissions to use and to authorize TC and others to exercise the rights and permissions granted by you in this Section; and
8.4.2 your User Content, and the use thereof as contemplated herein or as stated on the Services, does not and will not violate any of the prohibitions set forth in Section 8.1, above or violate any law or regulation.
8.5 We will not be responsible or liable for User Content. We disclaim any and all liability in connection with User Content. We are under no obligation to edit or control User Content that you or other users submit, post or publish. TC may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Website Terms or is otherwise objectionable. When using the Services, you may be exposed to User Content from a variety of sources. You acknowledge that others’ User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against TC with respect to User Content. If a user or content owner alleges that User Content does not conform to these Website Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we may do at any time and without notice.
SECTION 9: Feedback. From time to time, you may provide to TC feedback, analysis, suggestions, and comments (including, but not limited to bug reports, test results, and design suggestions or ideas) related to the Services (collectively, “Feedback”). As between you and TC, all right, title and interest in and to any Feedback will be owned by TC. You agree that TC will have the perpetual, irrevocable, and worldwide right to make, use, sell, offer to sell, import, copy, reproduce, distribute, perform, display, create derivative works, modify, license, sublicense, and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation, credit, or notice to you.
SECTION 10: Copyright Complaints.
10.1 If you believe any materials accessible on the Services infringe your copyright, you may request removal of those materials from the Services by submitting written notice to our Copyright Agent designated below, in accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”). The written 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 Services, 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 (including your name, postal address, telephone number, and, if available, email 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.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
10.2 If you believe that material you posted on the Service was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a "Counter Notice") by submitting written notification to our copyright agent designated below. Pursuant to the DMCA, the Counter Notice must include substantially the following:
Your physical or electronic signature.
An 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.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
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.
A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which TC is located) and that you will accept service from the person (or an agent of that person) who provided the DMCA notification with the complaint at issue.
The DMCA allows us 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 Counter Notice. Please be aware that if you knowingly materially misrepresent that material or activity on the Service 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.
10.3 Copyright infringement claims and notices and Counter Notices (but not other notices) should be sent to the attention of our Copyright Agent, in the following manner:
TC Copyright Agent
Stoel Rives LLP
760 SW Ninth Ave, Suite 3000
SECTION 11: Monitoring and Enforcement; Termination.
11.1 We have the right to (i) remove or refuse to post any User Content for any or no reason in our sole discretion; (ii) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Website Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for TC; (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; or (iv) take legal action, including without limitation referral to law enforcement, for any illegal or unauthorized use of the Services.
11.2 Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authority or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS TC AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY TC DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER TC OR LAW ENFORCEMENT AUTHORITIES.
11.3 If you violate any provision of these Website Terms, TC may immediately suspend or terminate your access to and use of the Services, in its sole discretion, with or without notice to you. We will have no liability whatsoever on account of any suspension or termination of your access to or use of the Services.
SECTION 12: Reliance on Information Posted.
12.1 The information presented on or through the Services is made available only for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
12.2 The Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by TC, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of TC. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties
SECTION 13: Changes to the Services. We may update the content on the Services from time to time, but its content is not necessarily complete or up to date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.
SECTION 15: Links from the Services.
15.1 TC may provide tools through the Services that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on TC with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Those third-party services are not under our control, and we are not responsible for their use of your exported information.
15.2 If the Services contain links to other sites or resources provided by third parties, these links are for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of other sites or resources. We accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any third-party website linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such website.
SECTION 16: Geographic Restrictions. The Website Terms are for users based in the United States. We make no claim that the Services is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative. You are solely responsible for compliance with local laws. Although the Services may be accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Services are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. TC reserves the right to limit, in its sole discretion, the provision and quantity of any Service to any person or geographic area. Any offer for the Services is void where prohibited. The Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. You shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Services to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Services is prohibited by applicable federal or foreign law, regulation, or rule.
SECTION 17: Disclaimer of Warranties.
17.1 THE SERVICES, INCLUDING ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. TC HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO: (I) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT; AND (II) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TC DOES NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, DEFECTS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
17.2 YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, YOUR DEALINGS WITH OTHER USERS OF THE SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND ACCESS, DOWNLOAD, USE, AND/OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING TO YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
17.3 SOME JURISDICTIONS MAY PROHIBIT SOME DISCLAIMERS OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
SECTION 18: Limitation on Liability.
18.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL TC BE LIABLE TO YOU FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES), INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT TC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct, or death or bodily injury caused by products you purchase through the Services.
18.2 YOU AGREE THAT THE AGGREGATE LIABILITY OF TC TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THESE WEBSITE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100 U.S. DOLLARS.
18.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
18.4 EACH PROVISION OF THESE WEBSITE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE WEBSITE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE WEBSITE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SECTION 19: Indemnification. You agree to defend, indemnify, and hold harmless TC and its affiliates, and their respective officers, directors, employees, consultants, and agents (“TC Entities”), from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Website Terms or any representation, warranty, or agreements referenced in the Website Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property, or privacy right; or (iv) any disputes or issues between you and any third party.
SECTION 20: Governing Law and Jurisdiction. All matters relating to the Services and/or these Website Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, these Website Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the City of New York and County of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such court.
SECTION 23: Your Comments and Concerns. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to firstname.lastname@example.org.