Effective: November 12, 2020
Terms and Conditions
Frosting connects customers with local bakeries, home bakers, and other purveyors of food. You may order food through the Sites to be delivered from particular bakeries or other home bakers in cities throughout the United States and other territories where Frosting provides such services.
Frosting is not a bakery, restaurant, or food preparation entity. The bakeries and other food purveyors available on our Sites (collectively, the “bakeries”) operate independently of Frosting. The bakeries are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. Frosting is not liable or responsible for the restaurants’ food preparation or safety and does not verify their compliance with all applicable laws. In addition, Frosting does not guarantee the quality of what the bakeries, home bakers, or other food purveyors sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third party delivery service. Frosting does not independently verify, and is not liable for, representations made by bakeries regarding their food, including, without limitation, any menu- or bakery-level descriptors or disclosures.
You may only create and hold one account on each Site for your personal use (an “Account”). You may have another account if you are using the Site as part of a corporate account created for business purposes pursuant to a separate agreement with Frosting. In consideration of the use of the Sites and the services contained therein, you agree that you are able to create a binding legal obligation with Frosting, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.
The Sites may permit you to make purchases without an Account or without logging in to your Account. If you make a purchase in this manner, we may create an Account for you based on the information provide to us in connection with the transaction (e.g., your name, phone number, email address, and other transaction information). If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites, and your parent or legal guardian must read and agree to this Agreement prior to your using the Sites. Notwithstanding the foregoing, you are not authorized to use the Sites if you are under the age of 13. If you are using the Sites on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization.
If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if Frosting has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Frosting has the right to block your current or future use of the Sites (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits or promotional offers and any other forms of unredeemed value in or associated with your Account without prior notice to you.
You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify Frosting of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. Frosting will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.
Ordering and Payment
Certain features of the Sites, including, without limitation, the placing of orders, may require you to make certain payments. When paid by you, these payments are final and non-refundable, unless otherwise determined by Frosting. Frosting, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged. You are liable for all transaction taxes on the Site provided under this Agreement (other than taxes based on the Company’s income).
Frosting will charge, and you authorize Frosting to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, Frosting may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event Frosting advances payment for any of your orders placed via the Sites (e.g., if you sign up for a corporate account), Frosting may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant Frosting the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.Frosting reserves the right to establish, remove, and/or revise prices, fees, and/or surcharges for any or all services or goods obtained through the use of the services at any time. Frosting may also, in its sole discretion, make promotional offers with different features and different rates to any or all of our customers. Unless made to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.
The provider of services is set forth herein. 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 Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Materials and License to You
With the exception of User Content (defined below), the Sites and everything on them, from text to photos to videos to graphics and software, (collectively, the “Materials”) are owned by or licensed to Frosting. The Sites and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Sites and Materials and except for the trademarks, service marks, logos and trade names of other companies that are displayed on the Sites and Materials, all trademarks, service marks, logos, trade dress, and trade names are proprietary to Frosting, including, without limitation, Frosting, Frosting Inc. trade dress. Please be advised that Frosting enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Sites and/or the Materials for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Sites and/or the Materials. Any other use of the Sites and/or the Materials is strictly prohibited. The Sites and the Materials may not be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on the Sites and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third party proprietary content on the Sites without the express written permission of Frosting or the appropriate third party owner, as applicable. Any rights not expressly granted herein are reserved by Frosting and Frosting’s licensors.
You may not rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Sites and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Sites and its related services. You are not authorized to download any content from the Sites, including, without limitation, the Materials, and if you do, Frosting will not be responsible in any way for any damage to your computer system or loss of data that results from such download.
Content and Conduct
I. User Conduct
By accessing the Sites, you agree:
• to comply with all applicable laws in connection with your use of the Sites, including, without limitation, laws regarding online conduct and submission of acceptable User Content;
• not to use the Sites or the services or submit content to the Sites if you are under the age of 13;
• not to access the Sites or services using a third party’s account/registration without the express consent of the account – holder and not to attempt to impersonate another user or person;
• not to attempt, through any means, to gain unauthorized access to any part of the Sites and/or any service, other account, computer system, and/or network connected to any Frosting server and not to otherwise use the Sites or services in any manner that could damage, disable, overburden, and/or impair any Frosting server, or the network(s) connected to any Frosting server, and/or interfere with any other party’s use and enjoyment of the Sites;
• not to advertise to, or solicit, any user, bakery, or other business to buy or sell any products or services, or use any information obtained from the Sites or the Frosting services in order to contact, solicit, or advertise or sell to any user, restaurant, or other business, in each case, unless specifically authorized in writing by Frosting;
• not to deep-link or frame to the Sites and/or access the Sites manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Sites and/or any Materials and/or other content on the Sites, unless specifically authorized in writing by Frosting;
• not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Sites;
• not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Site or Materials;
• not to create bakery reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Sites;
• not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
• not to harass, annoy, intimidate, or threaten any Frosting employees, contractors, or agents engaged in providing any portion of Frosting’s services;
• not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any User Content (as defined below) or from any portion of the Sites or Frosting’s services;
• not to disrupt, interfere with, or otherwise harm or violate the security of the Sites, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Sites or affiliated or linked sites (including, without limitation, those of our restaurant partners); and
• not to use the Sites for any illegal purposes or in any way otherwise inconsistent with any and all applicable laws, rules, and regulations.
You agree to comply with the above user conduct, and agree not assist or permit any person in engaging in any conduct that does not comply with the above user conduct. Further, you agree that the consequences of commercial use or re-publication of User Content or Materials from the Sites or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that Frosting will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
II. Content You Provide
Frosting may provide you with interactive opportunities (i) on the Sites, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked bakeries, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas”). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to Frosting through the Sites or otherwise in connection with your use of our services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“User Content”). User Content includes, without limitation, textual, visual, or audio content and information, whether transmitted via the Sites, SMS or MMS message, or otherwise.
III. Use of Your Content
You grant Frosting an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with Frosting’s or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”) without notification to and/or approval by you. You further grant Frosting a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a Frosting customer, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. Further, if you provide any suggestions, input, or other feedback relating to the Sites or the services we provide (collectively, the “Feedback”), Frosting shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant Frosting a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.
User Content transmitted to certain parts of the Sites, including, without limitation, restaurant pages and certain Interactive Areas, may be posted in public areas on our Sites, including, without limitation, in a compilation format, and as such will be publicly visible and accessible. You further understand and agree that you may be exposed to third party User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. Frosting and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from, any and all liability for the action of any and all third parties with respect to your User Content, or for any damages you allege to incur as a result of or relating to any third party User Content.
IV. Conduct Within Interactive Areas
By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Sites. We expect your cooperation in upholding our standards. You are responsible for all of your User Content. You agree not to provide any User Content that:
• is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable; has a commercial, political, or religious purpose;
• is false, misleading, and/or not written in good faith;
• infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
• is illegal and/or promotes illegal activity;
• contains unauthorized advertising and/or solicits users to a business other than those on the Sites; and/or
• is intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Sites or other websites.
We do our best to encourage civility and discourage disruptive communication on the Sites. We also do our best to discourage communications that incite others to violate our standards. Frosting may monitor any and all use of the Sites, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Sites in a manner intended to protect our property and rights and to facilitate the proper functioning of the Sites. If any User Content or conduct on our Sites violates our standards, or any other terms and conditions of this Agreement; or interferes with other peoples’ enjoyment of the Materials or our Sites; or is inappropriate in our judgment; we reserve the right, in our sole discretion, to change, delete or remove, in part or in full, any such User Content or Materials, and we further reserve the right to terminate or suspend access to any Interactive Areas or any Sites. Frosting will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with User Content.
V. Ratings and Reviews
The Sites and other Interactive Areas may allow you to rate (“Ratings”) and post reviews (“Reviews”) of bakeries and other businesses. Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of Interactive Areas and the Sites’ standards of conduct. Ratings and Reviews are not endorsed by Frosting, and do not represent the views of Frosting or of any affiliate or partner of Frosting. Frosting does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the bakery within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the bakery or any of its competitors; (3) you may not draw any legal conclusions regarding the bakeries’ products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
Communications and Text Messages
By voluntarily providing your cell phone number to Frosting, you agree that Frosting may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving text messages from Frosting at any time. To revoke your consent to receiving SMS or MMS messages from Frosting, please follow the unsubscribe procedures described below.
Customers placing orders through the Sites may receive two or more order status messages from Frosting about each order. To unsubscribe from order-related messages, just reply “STOP” to the number sending the message. To resubscribe, text “START” to the same number from the phone number associated with your account. If you need assistance, text “HELP”. Please note that unsubscribing from one Site will not automatically unsubscribe you from another Site.
Additionally, customers may receive messages from Frosting following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying “STOP” to the number sending the feedback messages. To resubscribe, text “START” to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from Frosting, the bakery, or your delivery person regarding your order or its delivery unless you also text “STOP” to the number sending the order-related messages, and even in such event, you may still receive individual texts from the bakery or your delivery person to enable successful delivery of your order.
You may also receive text messages in response to certain Customer Care requests. To unsubscribe from Customer Care messages, just reply to the message by texting “STOP” to the number sending the message.
If you unsubscribe from receiving text messages from Frosting through the process described above, you may continue to receive text messages for a short period while Frosting processes your request(s). If you change or deactivate the phone number you provided to Frosting, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Frosting’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. If you require assistance, please call our Customer Care team at 1-877-585-7878.
Additional Terms for Mobile Applications
We may make available software to access Frosting’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. Frosting does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Frosting hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that Frosting may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Frosting or its third party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. Frosting reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Sites and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Sites.
The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Frosting, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Frosting as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Frosting as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Frosting, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Frosting acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Frosting only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Frosting, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Frosting’s Google-Sourced Software.
THE SITES, THE MATERIALS, AND ALL OTHER CONTENT ON THE SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE MATERIALS AND ALL OTHER CONTENT ON THE SITES, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FROSTING DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE SITES WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FROSTING DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE SITES, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT FROSTING) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
FROSTING SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FROSTING’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FROSTING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FROSTING RELIES UPON BAKERIES AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FROSTING DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL FROSTING BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF FROSTING HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SITES. FROSTING ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SITES. FROSTING ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL FROSTING’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO FROSTING OR A FROSTING BAKERY PARTNER, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IMPORTANT NOTE TO NEW JERSEY CONSUMERS:
Third Party Links
The Sites may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”). Frosting does not review, monitor, operate and/or control the Third Party Websites and Frosting makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, Frosting is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. Frosting reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
Frosting respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Sites or a website through which our services may be accessed in a way that constitutes copyright infringement, please provide Frosting’s Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
1. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
3. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Sites;
4. Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
5. A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to our copyright agent at: Frosting Inc., Attention: Copyright Agent, P.O. Box 170, Bentonville, Arkansas 72712.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Frosting and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Frosting’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Frosting has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. Frosting may also in its sole discretion limit access to the Sites and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Termination and Violations of the Agreement
Your rights under this Agreement will terminate automatically without notice if you fail to comply with any provision of this Agreement. Further, Frosting reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Sites and/or services offered on or through the Sites (or any part thereof), including but not limited to the Sites’ features, look and feel, and functional elements and related services. We will have no liability whatsoever on account of any change to the Sites or any suspension or termination of your access to or use of the Sites. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Sites and services provided herein.
Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Sites; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”
Frosting reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Sites from a particular account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
Changes to the Agreement
You acknowledge and agree that your access to and/or use of the Sites, the Materials, and other content on the Sites is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
I. Arbitration and Class Action Waiver.
II. Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at httpss://www.adr.org/Rules or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section.
III. Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at httpss://www.adr.org/sites/default/files/Demand%20for%20Arbitration%20Consumer%20Arbitration%20Rules.pdf and a separate affidavit for waiver of fees for California residents only at httpss://www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf. The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. Arbitration Location and Procedure
Unless you and Frosting otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Frosting submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
IV. Arbitration Location and Procedure
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. Frosting will not seek, and hereby waives, all rights Frosting may have under applicable law to recover attorneys’ fees and expenses if Frosting prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $25,000, Frosting will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Frosting reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if Frosting changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Sites after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Frosting written notice of such rejection by mail or hand delivery to: Frosting, Attn: Dispute Resolutions, P.O. Box 170, Bentonville, Arkansas 72712, or by email from the email address associated with your account to: email@example.com, within 30 days of the date such change became effective, as indicated in the “Effective” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Frosting in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
Waiver and Severability
Any waiver by Frosting of any provision of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to terms contained herein.
This Agreement, together with any amendments and any additional agreements you may enter into with Frosting in connection with the Sites and the services hereunder, shall constitute the entire agreement between you and Frosting concerning the Sites and the services hereunder.
If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.