The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Numo Broth account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Numo Broth account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Numo Broth account, you also consent to receive electronic communications from Numo Broth(e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
Terms of Sale
Orders; Subscriptions; Cancellation Policy
Subscriptions. We offer different options for our customers to purchase from us. For more information about our options, please visit the shop page on our website. Note that we do not currently ship to every location, so please visit our Shop page to see if we can deliver to you. Subscriptions. WHEN YOU REGISTER FOR A MONTHLY SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) Numo Broth(OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS
CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS.
Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY EMAILING US AT [email protected]OTH.COM AND FOLLOWING THE INSTRUCTIONS IN THE EMAIL WE SEND YOU IN RESPONSE TO YOUR CANCELLATION REQUEST. DEPENDING ON YOUR MONTHLY CUT-OFF DATE, WHICH IS AVAILABLE ON YOUR “MY ACCOUNT” PAGE, YOUR CANCELLATION WILL BE EFFECTIVE BETWEEN FIVE (5) AND SEVEN (7) DAYS 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.
In the event you cancel your Subscription, please note that we may still send you promotional communications about Numo Broth, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
You have the ability to purchase our products for other people through the Sites (“Gifts”). When you purchase a Gift, we will send an email to the Gift recipient that can be used to redeem the Gift. The Gift recipient will be required to create a Numo Broth account in order to access the Sites and 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 Numo Broth account.
From time to time, we may offer free trials 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 SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL 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.
Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchase or subscription (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not
acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Numo Broth account, you can do so at any time by logging into your account and editing your payment information.
Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Order or Subscription or any other products, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of ingredients or a cookbook, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your order or subscription(s) in accordance with the cancellation policies set forth in Sections 4.1 and 4.2, as applicable.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients or entire shipments) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at [email protected]
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by USPS and/or UPS. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive.
To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found at www.usda.gov.
From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe washing, handling, preparation, storage, cooking, use and consumption of the Products following delivery.
We recommend that you follow the USDA’s instructions on safe food handling, which can be found at www.usda.gov. We also recommend that all cooking instructions be followed and that you use a food thermometer to ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures, which can be found here.
Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found at www.usda.gov.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door. In certain areas, you may be able to provide additional delivery instructions when setting up your Numo Broth account, such as requesting that your delivery be left with a doorman or neighbor. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your ingredients is not feasible, we will cancel your delivery for the period so affected and issue you a credit or refund of the purchase price for that delivery.
You are not permitted to resell or otherwise use the Products for commercial purposes. Unless specifically and expressed permitted by Brew-It-Yourself.
Returns and Refunds
If you are dissatisfied with a shipment for good reason, please contact us at [email protected] within seven (7) days of the date you received the ingredients and we will either replace the shipment at our expense or, depending on the circumstances, provide you a full or partial credit or refund of the purchase price for that shipment. We may require the return or photographic documentation of any ingredient with which you are dissatisfied before we provide you a credit or refund.
License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Numo Broth logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Numo Broth or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Numo Broth or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Numo Broth or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: General Counsel Address: BIY Bone Broth, Inc. d/b/a Numo Broth 1630 Oakland Rd. Suite A110,
San Jose, Ca 95131
Email: [email protected]
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Brew-It-Yourself,” the Numo Broth logo and any other Numo BrothProduct or service names, logos or slogans that may appear on the Sites or Products are trademarks of Numo Broth and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Numo Broth” or any other name, trademark or Product or service name of Numo Broth without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Numo Broth and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Numo Broth. For any questions or concerns email [email protected]
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Numo Broth or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Numo Broth logo or other proprietary graphic of Numo Broth to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Numo Broth trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written [email protected]
Numo Broth makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the [email protected]
Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing
Third Party Content are solely between you and such third parties, and that Numo Broth is not responsible or liable in any manner for such interactions or Third Party Content.
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not: Engage in any harassing, threatening, intimidating, predatory or stalking conduct; Use or attempt to use another user’s account without authorization from such user and Brew-It-Yourself; Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner; Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites; Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access; Develop any third party applications that interact with User Content or the Sites without our prior written consent; Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; Bypass or ignore instructions contained in the robots.txt file, accessible at www.numobroth.com/robots.txt, that controls all automated access to the Sites; or Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following: User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; User Content that impersonates, or misrepresents your affiliation with, any person or entity; User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations; User Content that contains any private or personal information of a third party without such third party’s consent; User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may
expose Numo Broth or others to any harm or liability of any type. We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Numo Broth’s Facebook page, Instagram page or Twitter feed), you hereby grant Numo Brotha nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Numo Broth through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Numo Broth to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Numo Broth, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Numo Broth. Numo Broth shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Numo Broth, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Numo Broth Parties”), from and against all actual or alleged Numo Broth Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of
pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Sites or Products provided to you. You agree to promptly notify Numo Broth of any third party Claims and cooperate with the Numo Broth Parties in defending such Claims. You further agree that the Numo Broth Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Numo Broth.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NUMO BROTHOR ANY OF THE OTHER NUMO BROTHPARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM BREW-IT-YOURSELF, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO NUMO BROTH’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF NUMO BROTH AND THE OTHER NUMO BROTH PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE NUMO BROTH MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF INGREDIENTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE NUMO BROTHAND THE OTHER NUMO BROTHPARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE NUMO BROTH AND THE OTHER NUMO BROTH PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH NUMO BROTH PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time and without liability therefor.
Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH NUMO BROTH AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Numo Broth agree (a) to waive your and Numo Broth’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Numo Broth’s respective rights to a jury trial. Instead, you and Numo Broth agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions
You and Numo Broth agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Numo Broth and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Numo Broth agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Numo Broth agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act
You and Numo Broth agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and
construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
You and Numo Broth agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Numo Broth shall be sent by certified mail or courier to BIY Bone Broth Inc., d/b/a Numo Broth, Attn: General Counsel, 1630 Oakland Rd. Suite A110, San Jose, Ca 95131. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Numo Broth account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Numo Broth cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Numo Broth may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Numo Broth agree that any Dispute must be commenced or filed by you or Numo Broth within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Numo Broth will no longer have the right to assert such claim regarding the Dispute). You and Numo Broth agree that (a) any arbitration will occur in the State of California, County of Santa Clara, City of San Jose, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Santa Clara, City of San Jose, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual
arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: BIY Bone Broth, Inc., d/b/a Numo Broth, Attn: General Counsel, 1630 Oakland Rd. Suite A110, San Jose, Ca 95131. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Santa Clara, City of San Jose.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Numo Broth account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), 9 through 23.
These Terms constitute the entire agreement between you and Numo Broth relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Numo Broth. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Numo Broth’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.