Terms & Conditions
Terms and Conditions of Use of soupapotamus.com and SoupaPOTamus, LLC
Soupapotamus.com and its related sites, services, applications, and tools (each and
collectively, the “Site”) are owned and operated by SoupaPOTamus, LLC
(“SoupaPOTamus” or “We”). These terms and conditions (“Terms”) apply to all visitors
and users of our Site (“User”) and govern your use of the Site, your conduct on the Site,
and the purchase and sale of product via the Site.
NOTICE OF CLASS ACTION WAIVER: PLEASE NOTE THAT THESE TERMS
INCLUDE A MANDATORY ARBITRATION PROVISION AND A CLASS ACTION
WAIVER. ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OR ARISING
OUT OF YOUR ACCESS TO OR USE OF THE SITE, OR TRANSACTIONS
CONDUCTED VIA THE SITE, MUST BE RESOLVED BY ARBITRATION ON AN
INDIVIDUAL BASIS, AND MAY NOT BE ARBITRATED OR OTHERWISE PURSUED
AS A JOINDER OF ACTIONS OR AS A CLASS ACTION. PLEASE SEE SECTION 27
BELOW.
IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT USE OUR SITE IN
ANY WAY. THE USE OF OUR SITE IS OFFERED TO YOU CONDITIONED UPON
YOUR ACCEPTANCE WITHOUT MODIFICATION OF THESE TERMS.
Website Disclaimer
1. ACCEPTANCE OF TERMS AND PRIVACY POLICY; MODIFICATION
SoupaPOTamus provides you with access to and use of the Site subject to your
compliance with these Terms and the Site’s privacy policy, available at our website. Your use of the Site constitutes your express agreement to these Terms and our privacy policy. If you do not agree to these Terms or our privacy policy, you may not access or use the Site. We may modify these Terms from time to time without notice to you. The provisions contained herein supersede all prior notices or statements regarding our Terms with respect to the Site. We encourage you to check the Site frequently to see the current Terms in effect and any changes that may have been made. By using the Site following any modifications to these Terms, you agree to be bound by the modifications. Any inquiries concerning these Terms should be directed to us at the address provided in Section 28.
Consent to Processing
2. CONSENT TO PROCESSING; INTERNATIONAL USE
SoupaPOTamus does not ship goods (“Items”) outside of the United States. By
providing any personal information to the Site, all Users, including without limitation, Users in the European Union, fully understand and unambiguously consent to the collection and processing of such information in the United States. For further information, please see our privacy policy. We control and operate the Site from our offices in the United States, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in locations outside the United States. Persons who choose to access the Site from locations outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Users agree to comply with all applicable laws, rules and regulations in connection with their use of the Site. The Site may be used only for lawful purposes and in a lawful manner. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside as well as the restrictions on import or export of Items from the SoupaPOTamus’ country to your country.
3. ELIGIBILITY TO USE THE SITE
Users must be 18 years of age or older to use the Site. The Site is not directed at
children under the age of 18 and does not knowingly collect information from such children. The Site is designed for persons with experience with, and who are accustomed to, buying Items based on photographs, and the User represents having such experience.
4. SITE USE TERMINATION; RIGHT TO MODIFY SITE; CORRECTIONS OF
ERRORS, DEFICIENCIES, INACCURACIES AND OMISSIONS.
SoupaPOTamus expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Site by any person or entity, at the sole discretion of
SoupaPOTamus, for any reason or no reason at all, and without prior notice. We
reserve the right to modify or discontinue all or any part of the Site at any time without notice to you, including any or all of the Content (as defined in Section 19) on the Site, or any services offered through the Site. In addition, the Site (including the Content) may contain typographical, pictorial and/or other errors, deficiencies, or inaccuracies and may not be complete, accurate, timely, or current. We assume no responsibility for any such errors, deficiencies, inaccuracies, or omissions on the Site and do not guarantee that they will be corrected. We reserve the right to (i) discontinue any stated offer, (ii) delete, change or update prices, promotions, Item descriptions or specifications, or other information, and (iii) delete, change or update the Content at any time without prior notice. In the event of an error involving Item pricing or the terms of an offer, changes will take effect upon posting on the Site, unless otherwise noted.
Payment
5. REGISTRATION AND ACCOUNT ACCESS
Registration may be required to use the Site. In any such case, registrants may be required to provide certain information and to select a password to be used to create and access their accounts. Such password and other registration details should be kept safe and not shared with anyone. Registrants may voluntarily provide additional information in the registration process to personalize their accounts. Registrants may access their accounts to view their profile information as well as transaction information by clicking the icon on the home page of the Site after logging in. Registrants may cancel their registration and account at any time. For your security, requests to terminate accounts MUST originate from the registered email account on file at SoupaPOTamus and be addressed to rders@soupapotamus.com. Under no circumstances will a cancellation request received via the phone or otherwise be accepted.
6. ITEMS AND INFORMATION ARE PROVIDED ONLY BY SOUPAPOTAMUS.
SoupaPOTamus does not guarantee or ensure the accuracy, completeness, reliability, or timeliness of any Item information provided on the Site or otherwise and SoupaPOTamus does not assume any liability for inaccuracies, misstatements, or omissions related to any Item information. You should not rely solely on the information presented on the Site, but should always read carefully the labels, warnings, and directions on the Item before using or consuming an Item. For additional information about an Item, or if you have specific nutrition or dietary concerns or questions, please contact SoupaPOTamus directly.
7. SITE INFORMATION, AVAILABILITY
Due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause unintended inaccuracies to appear on the Site. SoupaPOTamus has the right to correct inaccuracies or mistakes that come to its attention and to void any purchases of Items that display an inaccurate price or description. You acknowledge that temporary interruptions in the availability of the Site may occur from time to time as normal events. Also, we may decide to cease making available the Site or any portion of the Site at any time and for any reason. Under no circumstances will SoupaPOTamus or the SoupaPOTamuss be held liable for any damages due to such interruptions or lack of availability. The information contained in this website is for general information purposes only, and all Items displayed on the Site are offered for sale strictly subject to availability. The information is provided by SoupaPOTamus and while we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, Items, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
8. NO MEDICAL ADVICE IS PROVIDED BY SOUPAPOTAMUS
SoupaPOTamus’ statements and information do not constitute medical advice. The materials on the Site may not apply to your specific situation or your specific location, or may be incomplete or outdated. You should not act or rely on any information on the Site. The Site and materials posted or linked are not intended to be a substitute for professional medical advice, diagnosis, or treatment. You are not authorized to treat the Site as a source of medical advice. Before acting or delaying action, you should first seek the advice of a physician who is qualified and licensed, as applicable, in the applicable subject matter and jurisdiction. Any information and statements regarding our Items and products have not been evaluated by the Food and Drug Administration or any similar agency or administration and are not intended to diagnose, treat, cure, or prevent any disease or health condition.
9. THE SALE PROCESS
When a User identifies an Item for purchase, the User may elect to order the Item directly through the checkout page. At that time, the User shall submit valid payment information for payment of the Total Purchase Price. The “Total Purchase Price” is the price for the Items and product listed on the Site and includes (i) the agreed price of the Item (the “Purchase Price”); (ii) if applicable, shipping fees; and (iii) sales or other taxes that the SoupaPOTamus is required to collect from the User under applicable law at the time of sale. By electing to purchase, the User irrevocably agrees to pay the Total Purchase Price, and the SoupaPOTamus agrees to sell the Item for the Total Purchase Price. An order is deemed “accepted” by SoupaPOTamus and the sale is confirmed between the User and SoupaPOTamus when a confirmation (“Sale Confirmation”) email is sent to the User’s email account in a reasonable attempt to notify the User that the User’s purchase of the Item has been accepted and confirmed by SoupaPOTamus and that the User’s payment is being processed and the Items shipped. Notwithstanding anything to the contrary contained herein, in the event(s) of an error by SoupaPOTamus as to availability of the Item or any other error on SoupaPOTamus’ part with respect to a Sale Confirmation or the operation of the Site, the SoupaPOTamus and/or SoupaPOTamus reserves the right in its sole and absolute discretion to rescind that Sale Confirmation without penalty to any person or party. Once a Sale Confirmation email for an Item is sent to the User, a binding contract
between the User and the SoupaPOTamus with respect to the sale and purchase of that Item is created.
10. PAYMENT FOR ITEMS PURCHASED
Immediately upon transmission of an order via the Site, the User irrevocably authorizes User’s payment card to be charged an amount equal to 100% of the Total Purchase Price. If for any reason after submission of an order via the Site, the User cancels a payment made by credit card or any other means, the User shall remain liable to the SoupaPOTamus for the full Total Purchase Price and any costs related to the sale of the Item, including, but not limited to, any costs incurred by SoupaPOTamus associated with collecting any amount due to the SoupaPOTamus, including, but not limited to, legal fees and costs.
11. SALES ARE “AS-IS”
All Items displayed on the Site are offered and sold “AS-IS”. Neither the
SoupaPOTamus nor SoupaPOTamus makes any guarantee, warranty or representation, expressed or implied, to any User with respect to any Item, including without limitation, its condition, merchantability, fitness for a particular purpose, quality, rarity, importance, provenance, designer or creator, exhibitions, literature, historical relevance or otherwise. No statement anywhere, whether oral or written, shall be deemed any such guarantee, warranty or representation. SoupaPOTamus makes no representation or warranty as to whether the User acquires any reproduction rights or other intellectual property rights in any Item.
EXCEPT AS PROVIDED HEREIN, SOUPAPOTAMUS MAKES NO WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED RELATED TO THE WEBSITE, THE
INFORMATION PROVIDED THEREIN, OR THE ITEMS AND PRODUCTS OFFERED
FOR SALE, SOLD, OR DELIVERED BY OR FOR SOUPAPOTAMUS. ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
12. RETURN POLICY
We do not accept returns, but if your purchased Item arrives damaged or if it has been recalled, please contact us at orders@SoupaPOTamus.com and we will arrange for a replacement or refund.
13. SUBSCRIPTION TERMS
(a) SoupaPOTamus may from time to time offer product subscriptions that allow Users to receive recurring deliveries of products on a schedule selected by the User. By subscribing to a subscription for a product, you authorize SoupaPOTamus to automatically charge your designated payment method and arrange for shipment of the product at your selected frequency until you cancel your subscription.
(b) When you subscribe to a product, you agree to pay the product price plus applicable shipping fees and taxes on a recurring basis at your selected frequency (e.g., every two weeks, monthly). YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AND YOU WILL BE CHARGED FOR EACH SCHEDULED DELIVERY UNTIL YOU CANCEL. You irrevocably authorize SoupaPOTamus to charge your designated payment method prior to each scheduled delivery.
(c) Subscription pricing is based on the product price in effect at the time of each renewal. If a product’s price changes, your subscription will be charged the updated price for future deliveries. SoupaPOTamus will notify you of significant price increases prior to your next scheduled renewal.
(d) All subscribed products are subject to availability. If a subscribed product becomes unavailable, SoupaPOTamus will notify you and pause or cancel that subscription. You will not be charged for products that are not delivered.
(e) You may cancel or modify your product subscriptions at any time through (i) your account dashboard at SoupaPOTamus.com, or (ii) by emailing
orders@soupapotamus.com. To avoid being charged for your next scheduled delivery, you must cancel or submit modifications at least forty-eight (48) hours before your scheduled renewal date. Cancellation will take effect after any pending deliveries have been fulfilled.
(f) You may skip individual deliveries without canceling your subscription through your account dashboard.
(g) Subscription orders are subject to Section 12 (Return Policy) of these Terms. If you cancel your subscription mid-cycle, you will not be charged for future deliveries;
however, you will not receive a refund for orders that have already been processed.
(h) If you are a California resident and subscribed online, you may cancel your
subscription online using the same method. SoupaPOTamus will send you an annual reminder of your active subscriptions and instructions on how to cancel.
(i) By clicking “Subscribe” or any similar button, you acknowledge that you have read and agree to these subscription terms and authorize the recurring charges described
herein.
14. NO BUYING AND SELLING OUTSIDE THE UNITED STATES
SoupaPOTamus does not offer Items or conduct sales or delivery of Items outside of the United States.
15. TAXES
The User is entirely responsible for paying all sales and other taxes related to the
purchase of each Item (collectively, “Taxes”). It is the User’s responsibility to establish and/or document any applicable exemption from Taxes.
16. TRANSFER OF TITLE/RISK OF LOSS
SoupaPOTamus will convey clear title of each Item to the User upon receipt by the SoupaPOTamus of the Total Purchase Price and delivery of the Item. SoupaPOTamus represents that the SoupaPOTamus is the sole owner of each Item that SoupaPOTamus is offering for sale on the Site and that the SoupaPOTamus will transfer ownership of the Item to the User free from any claims by third parties.
17. SHIPPING
SoupaPOTamus shall arrange for packaging and shipping. Upon request,
SoupaPOTamus will provide shipping information including the name of the freight carrier. User shall prepay all shipment costs as part of the Total Purchase Price.
18. REFUSAL OF TRANSACTION
SoupaPOTamus reserves the right to withdraw any Item from the Site or to amend any content on the Site at any time in its sole discretion. SoupaPOTamus may refuse service to anyone at any time in its sole discretion. SoupaPOTamus will not be liable to any User or any other third party because SoupaPOTamus has withdrawn any Item from the Site, amended any of the content on the Site, or denied access to the Site.
19. MODIFICATION TO SITE; MONITORING
We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, Items, products, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without
notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion. SoupaPOTamus reserves the right, but accepts no obligation, to monitor any activity and content on the Site. SoupaPOTamus may investigate any reported violations of applicable law, rule or regulation applicable to Users or transactions on the Site and take action that it deems appropriate, including, but not limited to, issuing warnings, suspending or terminating service, denying access or removing any content from the
Site. SoupaPOTamus may also investigate the use of a credit card by a User and take such action as SoupaPOTamus deems appropriate, including, but not limited to, canceling any order placed by such User.
20. PROHIBITED SITE USE; SECURITY RULES AND USER SUBMITTED CONTENT
The Site may be used only for lawful purposes by individuals using authorized services of SoupaPOTamus. SoupaPOTamus specifically prohibits any use of the Site, and requires all Users to agree not to use the Site, for any of the following:
(i). Posting any information or using a payment mechanism, which is incomplete, false, inaccurate or not your own;
(ii) Impersonating another person;
(iii) Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violating any city, state, national or international law or regulation or that fails to comply with accepted Internet protocol;
(iv) Posting material that is copyrighted or otherwise owned by a third party unless you
are the copyright owner or have the permission of the owner to post it;
(v) Posting material that reveals trade secrets, unless you own them or have the
permission of the owner;
(vi) Posting material that infringes on any other intellectual property, privacy or publicity right of another;
(vii) Transmitting or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of US export control laws;
or
(viii) Attempting to interfere in any way with the Site’s or SoupaPOTamus’ networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the User or Users who are involved in such violations. You are prohibited from violating or attempting to violate the security of
the Site, including, without limitation, by doing any of the following:
(i) Accessing data not intended for you or logging into a server or account that you are not authorized to access;
(ii) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(iii) Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus, worm, Trojan Horse or other harmful code to the Site; overloading, “flooding”, “mailbombing” or “crashing”; or sending unsolicited e-mail, including promotions and/or advertising of products or services, or
(iv) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Wee may provide you with explicit opportunity to post information and content to the Site. You are responsible for any User Content you post to the site. By “User Content” we mean any content you post to the Site, which may include reviews, comments, image uploading, captions, participating in forums, and other such features that allow you to add content to the Site. We are not responsible for the personally identifiable or other information you choose to submit as User Content, and we reserve the right to remove any User Content generated by any user at our sole discretion. You understand that once you post User Content, your content becomes public. We are not responsible for keeping any User Content confidential, so if you do not want anyone to read or see that content, do not submit or post it to the Site.
If we allow you to upload User Content, you may not:
(i) provide User Content that you do not have the right to submit, unless you have the owners permission; this includes material covered by someone else’s copyright, patent, trade secret, privacy, publicity, or any other proprietary right;
(ii) forge headers or manipulate other identifiers in order to disguise the origin of any User Content you provide;
(iii) provide any User Content that contains lies, falsehoods or misrepresentations that could damage us or anyone else;
(iv) provide User Content that is illegal, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise inappropriate;
(v) impersonate anyone else or lie about your affiliation with another person or entity in your User Content;
(vi) use meta tags or any other "hidden text" or trademarks in your User Content; or
(vii) provide User Content that disparages us or our suppliers, vendors, partners,
representatives or affiliates. Except as otherwise specifically provided, if you post content or submit material to the Site, you grant us a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You
represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate these Terms or any law or regulation; and the content will not cause injury to any person or entity. We have the right but not the obligation to monitor and edit or remove any activity or content. User Content comes from a variety of sources. We do not endorse or support any views, opinions, recommendations, or advice that may be in User Content, nor do we vouch for its accuracy or its reliability, usefulness, safety or intellectual property rights. We take no responsibility and assume no liability for any User Content posted by you or any third party.
21. PROPRIETARY RIGHTS
As between you and SoupaPOTamus (or any other company whose marks appear on the Site), SoupaPOTamus (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated. Except as otherwise provided herein, use of the Site does not grant you or anyone a license to any Content, features or materials you may access on the Site, and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by SoupaPOTamus. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States and other countries, as well as applicable state laws, and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site. The information on the Site, including without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law. Item and product names, logos, designs, titles, graphics, words or phrases may be
protected under law as the trademarks, service marks or trade names of
SoupaPOTamus, LLC. or other entities. Such trademarks, service marks and trade names may be registered in the United States and internationally. Without our prior written permission, you agree not to display or use our trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner. Images created or produced or modified by SoupaPOTamus. All images created or produced or modified by SoupaPOTamus are the sole property of SoupaPOTamus. SoupaPOTamus may use any such image to promote the Site or for any other purpose
at any time without restriction.
22. LINKS TO THIRD-PARTY SITES
From time to time you may be able to link to third-party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by us in any way, and we are not responsible for the content, availability, advertising, products, information or use of user information or other materials of any Linked Sites or any additional links contained therein. These links do not imply our endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of the Linked Sites and any content contained thereon. In no event shall we be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through the Linked Sites. You should direct any concerns to that sites administrator or Webmaster. We reserve the exclusive right, in our sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users. Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
23. INDEMNITY
All Users agree to defend, indemnify and hold harmless SoupaPOTamus, LLC and its directors, officers, employees, agents, vendors, partners, contractors, representatives and affiliates from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, in any way arising from, related to or in connection with their use of the Site, their purchase or sale of Items, the nature or quality of Items, their disputes with any SoupaPOTamus in connection with use of the Site, their violation of any law, their violation of these Terms or their posting or transmission of any User Content or materials on or through the Site, including, but not limited to, any third-party claim that any information or materials such Site user provides infringe any third-party
proprietary right. All Users agree to cooperate as fully as reasonably required in the defense of any claim. This indemnification obligation will survive the termination of these Terms and your use of the Site.
24. DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS.
SOUPAPOTAMUS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, ANY ITEMS OFFERED FOR
SALE OR SOLD ON OR THROUGH THE SITE OR ANY SOUPAPOTAMUS,
INCLUDING WITHOUT LIMITATION.
(a) any representation or warranty that the Site meets the User’s requirements, will always be accessible, uninterrupted, timely, or secure or operate without error or that defects will be corrected;
(b) any representation or warranty that any Item conforms to its description or the colors, texture and detail shown on the User’s computer monitor;
(c) any representation or warranty concerning the availability, accuracy, completeness, usefulness, or content of information; or
(d) any representation or warranty of title, non-infringement, merchantability or fitness for a particular purpose. The User must direct all claims regarding any Item to SoupaPOTamus and must resolve any dispute regarding any Item directly with SoupaPOTamus. No advice, results, information, or materials, whether oral or written, obtained by you through the Site shall create any warranty by SoupaPOTamus not expressly made herein. If you are dissatisfied with the Site, your sole remedy is to discontinue using the Site.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE
OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH MATERIAL. EXCEPT AS PROVIDED HEREIN, SOUPAPOTAMUS MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED RELATED TO THE WEBSITE, THE INFORMATION PROVIDED THEREIN, OR THE ITEMS OR PRODUCTS OFFERED FOR SALE, SOLD, OR DELIVERED BY OR FOR SOUPAPOTAMUS. ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
25. RELEASE
You expressly agree to release SoupaPOTamus, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, partners, successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation, court costs and attorney fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a dispute. You further waive your rights under Section 1542 of the California Civil Code,
and any similar law of any applicable jurisdiction, 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. You agree that no joint venture, partnership, employment, or other agency relationship exists between you and SoupaPOTamus as a result of these Terms or your use of the Site.
26. LIMITATION OF LIABILITY IN NO EVENT SHALL SOUPAPOTAMUS, LLC , ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS,
SUBSIDIARIES, DIVISIONS, SUCCESSORS, SUPPLIERS, DISTRIBUTORS, AFFILIATES, VENDORS, CONTRACTORS, REPRESENTATIVES OR CONTENT OR
SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR
DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO
USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED
THERETO, OR ANY ITEMS OR PRODUCTS, INCLUDING WITHOUT LIMITATION,
LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR
SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF SOUPAPOTAMUS OR ITS
REPRESENTATIVES OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED HEREIN, SOUPAPOTAMUS MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED RELATED TO THE WEBSITE, THE INFORMATION PROVIDED THEREIN, OR THE ITEMS OR PRODUCTS OFFERED FOR SALE, SOLD, OR DELIVERED BY OR FOR SOUPAPOTAMUS. ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN
NO EVENT SHALL THE TOTAL LIABILITY OF SOUPAPOTAMUS TO YOU FOR ALL
DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR
TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE)
ARISING FROM THESE TERMS, YOUR USE OF THE SITE, OR THE PURCHASE OF
ITEMS EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE OF THE ITEMS
YOU PURCHASE AND PAY FOR.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SOUPAPOTAMUS,
LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS,
SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, OR AFFILIATES OR
THIRD PARTIES PROVIDING INFORMATION ON THE SITE HAVE ANY LIABILITY
FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED
IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED
IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF
SOUPAPOTAMUS.
27. ARBITRATION; WAIVER OF JURY TRIAL AND CLASS ACTION; APPLICABLE
LAW/JURISDICTION
(A) Any dispute, controversy or claim arising out of or relating to these Terms, or its breach, which cannot be resolved between the parties through negotiation within thirty (30) days, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Rules. Venue for arbitration shall be in Steuben County, NY, USA. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side.
(B) The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with these Terms. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. The arbitrator shall render its award in writing and shall include the findings of fact and conclusion of law upon which the award is based. The result of the arbitration shall bind the parties, and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and
all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing party (should there be one) in any such arbitration.
(C) The parties surrender and waive the right to submit any dispute to a court or jury or to appeal to a higher court. The parties agree to arbitration on an individual basis.
Where enforceable, NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR
CONSOLIDATE CLAIMS BY OR AGAINST SOUPAPOTAMUS OR ANY OTHER
PERSONS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE OR
CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. UNLESS
BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT
CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SITE USERS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in these Terms shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damages would be insufficient.
(D) The place of arbitration shall be Steuben County, NY, USA, and the proceedings shall be conducted in the English language. These Terms shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws, and the arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Western District of New York would apply to the dispute.
(E) The agreements and transactions between the User and the SoupaPOTamus shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
28. NOTICES
Any notices shall be given by postal mail addressed to SoupaPOTamus, LLC, 494 Robert Dann Dr, Painted Post, NY, to the attention of SoupaPOTamus Management or, in the case of a User, the e-mail address provided to SoupaPOTamus and currently on record. Notice to a User shall be deemed to have been given 24 hours after the e-mail was sent, unless SoupaPOTamus is notified that the e-mail address is invalid, in which event SoupaPOTamus may give notice by postal mail at the address provided to SoupaPOTamus by the User upon registration. Notice given by postal mail shall be deemed to have been given three (3) business days after the date of mailing.
29. GENERAL INFORMATION
If any provision of these Terms is deemed unlawful, void or for any reason
unenforceable, such provision(s) will be deemed severable from the rest of these Terms and will not affect the validity and enforceability of the rest of these Terms. Failure of SoupaPOTamus to exercise any rights or remedies will not constitute a waiver of any rights or remedies available to SoupaPOTamus under these Terms or at law. These Terms represent the entire agreement between you and SoupaPOTamus and supersede and replace any other agreement between the parties, including, but not limited to, any previous Terms as they may have applied between you and SoupaPOTamus. Paragraph headings are for convenience only and not for interpretation of these Terms.
30. CONTACT US
To contact us with any questions or concerns in connection with these Terms or the Site, please email us at orders@SoupaPOTamus.com
Location
Location: 494A Robert Dann Drive, Painted Post NY 14870
Phone: +1 6073686941
Email: soupapotamus@gmail.com