Terms of Use
Use of our Service and this website is governed by the terms and conditions described below. Please read them carefully. Your use of our Service and this website indicates your acceptance of these terms and conditions. Theobroma Enterprises, Inc. (the “Company”) reserves the right to make modifications to these Terms & Conditions of Use at any time. You accept the obligation to review these Terms & Conditions of Use prior to each use, and your use of this website constitutes an acceptance to be bound by any modifications. These Terms and Conditions of Use were last amended on November 5, 2015. These Terms & Conditions of Use are referred to hereafter as the “Agreement”.
1. The Service Licensed. The term “Service” shall mean (a) the Internet web pages, data, photographs, screens, descriptions, documentation and other information of any kind that are accessible through the Company’s web application (the “Website”), as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein, (b) the opportunity to purchase items offered to Users in the manner described on the Website and (c) communications from the Company to Users. You must be 18 years of age to purchase products on the Website. Each parent, guardian or other caretaker of a child under 18 shall be responsible for any access to the Website by any such child.
2. Grant of License. Subject to the terms and conditions of this Agreement, the Company grants to you, the “User”, a limited nonexclusive, nontransferable, revocable license solely in connection with User’s personal use, and not for resale or public performance of any kind, to access and use the Service (or any portions thereof). The Company reserves the right at all times and without notice to (i) restrict or prevent User’s access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion thereof). The Company shall have no obligation to correct or update the Service. For the purposes of the license grant in this Section 2, the term “User” shall include individuals and any entity on behalf of which this Agreement is being reviewed and accepted and such entity’s employees and other individual users.
3. General Restrictions on Use. A User may not (i) use, copy, modify, merge, install, transfer or distribute the Service, except as expressly provided in this Agreement; (ii) reverse-engineer, decompile, translate, disassemble or separate the components of the Service (including, without limitation, viewing or otherwise obtaining source code); (iii) sublicense, rent, sell or lease the Service or any part thereof; (iv) use the Service or any part thereof for third-party training, commercial time-sharing or service bureau use, except as expressly provided in this Agreement or on the Website; (v) remove from the Service or alter any copyright or trademark notice contained therein; (vi) use the Website for any unlawful purpose; (vii) express or imply that any statements User makes are endorsed by us, without our prior written consent; (viii) transmit (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party’s intellectual property or other rights, (b) any material, non-public information about individuals or companies without the authorization to do so, (c) any trade secret of any third party, or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding; (ix) transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; (x) “frame” or “mirror” any part of the Website without our prior written authorization; (xi) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents; (xii) harvest or collect information about Website visitors or members without their express consent; or (xiii) post or otherwise distribute material that is subject to a copyright unless you are the owner of such copyright or you have been granted permission for such actions from the copyright owner. The foregoing restrictions on use may be modified, expanded or reduced by the Company elsewhere on the Website. In such case, such modification, expansion or reduction shall be incorporated herein as if stated in full herein.
4. Ownership.
4.1 Proprietary Information. User acknowledges and agrees that: (i) the Service, including, without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by the Company or its third party content providers (“Content Providers”), as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of the Company; (iii) the Proprietary Information is licensed, rather than sold, to User pursuant to this Agreement; and (iv) User has no rights in the Proprietary Information, other than the rights and licenses specifically granted to User pursuant to this Agreement.
4.2 Confidentiality. User hereby acknowledges that the Company may disclose to User, as part of or in conjunction with Proprietary Information, valuable confidential information of the Company. User agrees to hold all such confidential information in confidence and not to disclose such confidential information to anyone other than User's employees with a bona fide need to know, provided such employees are governed by a parallel confidentiality obligation of equal or greater force. Additionally, User agrees to use at least that degree of care which User uses to protect User’s own information of a similar confidential nature, but in no event less than reasonable protection. Excluded from such confidential information is information which, as proven by User by clear and convincing evidence, was in User’s possession without confidential limitation prior to disclosure, is known or becomes known to the general public without breach of this Agreement, is received rightfully by User without confidentiality limitations from a third party, or is disclosed publicly by the Company without substantially similar confidentiality restrictions. This confidentiality obligation is to survive the termination, expiration or cancellation of this Agreement for any cause whatsoever, and to remain in force in perpetuity.
4.3 Competitive Services. User is prohibited from, and shall not, develop, market or sell any competitive service based on or derived in any way from the use of the Website or from Proprietary Information or from the benefits of know-how resulting from access to or work with the Company’s confidential information. The term “benefits of know how” means information in non-tangible form which may be retained by persons who have had access to the confidential information, including ideas, concepts, know how or techniques contained therein.
5. Trademarks. User acknowledges that the Company has acquired, and is the owner of, trademark rights in the name and word mark Voila Chocolat®, and in the design marks displayed on the Website. User acknowledges that this name and these marks are famous and internationally known. User shall not, at any time or for any reason, challenge the validity of, or the Company’s ownership of, the foregoing name and marks, and User waives any rights User may have at any time to do so. All use of the foregoing name and marks by User shall inure exclusively to the benefit of the Company. All marks shown on the Website but not owned by the Company are the property of their respective owners.
6. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by the Company infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website are covered by a single notification, a representative list of such works);
(c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow the Company to locate the material on the Website;
(d) the name, address, telephone number, and email address (if available) of the complaining party;
(e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7. Image Display and Information. We attempt to display the images featured on our website as accurately as possible. However, we cannot guarantee that your monitor's display of graphics, designs, color, texture or detail will be accurate. On occasion, the website may contain incomplete information, typographical errors, or inaccuracies as to description, pricing, promotions, size, ingredients, color or availability. We reserve the right to correct errors at any time without prior notice.
8. Disclaimer of Warranty.
8.1THIS WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE ARE PROVIDED BY THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES INCLUDED ON OR MADE AVAILABLE TO YOU THROUGH THIS WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE AND YOUR CONSUMPTION OF FOOD, BEVERAGES OR OTHER PRODUCTS MADE AVAILABLE THROUGH THIS WEBSITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THE INFORMATION, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE ARE FREE OF HARMFUL COMPONENTS. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE OR FROM ANY INFORMATION, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.2 The Company makes no claims whatsoever as to the effect upon your health of its products. The descriptions of its products are provided solely to facilitate discussions with your physician or other healthcare provider (“Healthcare Professional”). No information we provide is meant to substitute for medical advice from a properly licensed Healthcare Professional. We suggest that you provide a thorough description of any products you plan to purchase from the Company to your Healthcare Provider and obtain his or her advice before purchasing or using such products. You understand and acknowledge that your consumption of the food and beverage products sold by the Company may cause illness, personal injury or death, that such products may become adulterated, may contain harmful ingredients and may cause allergic reactions. You represent that you have independently investigated the advisability of consuming chocolate and the other products sold by the Company, and have consulted your Healthcare Professional in that regard. You also represent that you have read this entire waiver and liability release, or had it read to you, that you fully understand it and that you intend to relieve the Company, its officers and employees and its successors and assigns from any and all liability for personal injury, property damage or wrongful death caused by negligence or any other cause. Notwithstanding any other provision in this Agreement, you agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final binding arbitration in New York, New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall award the successful party all of its costs and fees, including reasonable attorney’s fees.
8.3 The Company specifically disclaims any representation or warranty with respect to items sold through its Service. As between the user and the Company, all items are sold “as is” and “as available.” Consequently, the Company shall have no liability for the accuracy of the information, including photographs or other images, provided to the user, utilizing the Service or otherwise; nor shall the Company have any liability for defects in or damage to any item sold through the Service, whether or not caused by the Company. The sole remedy for users who believe an item was damaged in transit will be able to file an insurance claim either with his or her own insurance carrier or with the Company’s insurance carrier.
9. Limitation of Liability. Each User is solely responsible for (i) his or her use of the Service, and (ii) any damages incurred by him or her or any third party that arise from or are related to the Service. Neither the Company nor its Content Providers will be liable to User or any third party for any damages arising from or relating to this Agreement or the Service, except to the extent such damages are determined by a court of competent jurisdiction to have arisen directly from a willful breach by the Company of any of its express obligations hereunder. In the event of such a finding, the aggregate liability of the Company and its Content Providers for any damages, whether arising in contract, tort or otherwise, shall be limited to actual damages proved not to exceed the amount paid by User to the Company for the Service. The Company specifically disclaims responsibility for the security of information submitted by Users and maintained by its payment processor, Stripe, Inc., and shall have no liability for any release of such information due to third party misappropriation or otherwise. By using the Service, each User authorizes the Company to utilize Stripe Inc. for credit card services and waives any claim he or she might have that is based on the Company’s use of that firm’s services. No claim may be asserted by any User with respect to a product or service purchased through the Website unless written notice of such claim is received by the Company within 30 days of User’s purchase.
10. Indemnification. User shall defend and indemnify the Company, and hold the Company harmless, against any loss or damage of any kind (including, without limitation, attorneys’ fees and lost revenues) arising from: (i) any and all breaches by User of this Agreement or any representation, warranty or covenant contained herein; and (ii) any and all claims and actions against the Company by other parties to whom User allows access to the Service.
11. Additional Service Features. The Website may contain information, products, and services provided by third parties and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Users. The Company does not review or control this information or these products, services, or other web sites, and the Company does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with the Company with respect to any third party or its web site or content, or any information, products, or services provided by that third party.
12. Force Majeure. Any performance contemplated by this Agreement on the part of the Company may be cancelled by it in the case of an event or the reasonable probability of an event beyond the control of the Company, including but not limited to: strike, civil unrest, a state of emergency such as epidemic, severe and adverse weather conditions, fire, flood, earthquake, avalanche or mudslide, failure of public transportation, closure or delay as a result of an order, directive or action of any federal, state, city or municipal entity or any act of God.
13. Term and Termination. The term of this Agreement shall commence on the date on which User first accesses or utilizes the Service or the Website in any way and will continue so long as User continues to access or utilize the Service of the Website. The terms of Sections 3-29 (inclusive) shall survive expiration or termination of this Agreement. Payments by User, which accrue or are due before termination of this Agreement, shall continue to be payable by User after the expiration or termination of this Agreement for any reason.
14. Inadequacy of Legal Remedy. User acknowledges that the Company’s legal remedies (including the recovery of damages) are not sufficient in the event of any breach by User of any provisions of this Agreement regarding the ownership, use, copying or distribution of the Service and that the Company would suffer continuing and irreparable injury to its business as a direct result of such breach. Therefore, in the event of any such breach, User consents to entry of any injunctive relief necessary to prevent or cure such breach (including temporary and preliminary relief, and relief by order of specific performance), without the posting of any bond or other security or proof of actual damages or irreparable harm.
15. Law and Jurisdiction. All disputes arising out of this Agreement or the performance thereof shall be determined exclusively under the laws of the State of New York, without reference to its conflict-of-law provisions, which laws the arbitrator shall use in all cases. User consents to the personal jurisdiction of the state and federal courts located in New York County, New York for the enforcement of any arbitration award. For the purpose of such enforcement, user shall not initiate any legal proceeding in any jurisdiction other than in the state or federal courts located in New York County, New York.
16. Entire Agreement; Variation. This Agreement, and any license contained in the Company’s products, set forth the entire agreement between the Company and User with respect to the Service; provided, however, that the Company reserves the right to modify this Agreement, effective as of the date of the modification, at any time at its sole discretion. If the Company does make changes to the Agreement, the Company will post a revised Agreement on the Website. User will be responsible for regularly checking the Website for any such changes. By using the Service after the effective date of any change, User agrees that he or she will be bound by the revised Agreement.
17. Severability. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provisions shall be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement shall not be affected thereby.
18. Notices. When any notice is required or authorized hereunder, such notice shall be given in writing by recognized overnight express service, certified or registered mail, or personal delivery, in the case of the Company, to the address on this Website, with a copy to: Black & Associates, 100 Wall Street, Suite 900, New York, NY 10005, and in the case of User, to User’s attention at the address, including e-mail address, on file with the Company, or such other address as may be obtained through means believed by the Company in good faith to be accurate. A notice shall be deemed given on the date of personal delivery, one business day after being deposited with the overnight express service, or five days after being deposited in the certified or registered mail.
19. Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between the Company and User, nor any agency, joint venture or partnership relationship between the parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
20. Compliance with Law. Our business is based in the United States and is designed to comply with the laws of the United States. All Users located outside the United States must comply with all other laws applicable to their use of the Services.
21. Waiver. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
22. Assignment. Neither this Agreement nor any of User's rights granted herein may be assigned or transferred by User, whether voluntarily or by operation of law, without the express prior written permission of the Company and any attempt to do so shall be null and void.
23. Third-Party Beneficiaries. The provisions of this Agreement relating to the rights of the Company’s Content Providers are intended for the benefit of such Content Providers, and such Content Providers, as third-party beneficiaries, shall be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to this Agreement.
