YOUR USE OF THE SITE AND/OR THE SERVICE SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT CAKE MAKES FROM TIME TO TIME.
- ToU Updates. CAKE will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
- Termination of Service. CAKE reserves the right to deny service to any person at CAKE’s sole and absolute discretion. The Service is offered with the understanding that CAKE may terminate any user’s access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. CAKE may stop offering and/or supporting the Service at any time.
- Restrictions and Conditions of Use
- Use of Site and Service. CAKE permits you to view and use a single copy of the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site. CAKE reserves the right to add or remove information, content or Services from the Site at any time at its sole discretion.
- No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
- Restrictions. Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other entity without the prior written consent of CAKE; or (iv) make any false, misleading or deceptive statement or representation regarding CAKE and/or the Service.
- Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person’s use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, information provided by other users, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding CAKE and/or the Service; or (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
- Prohibited Uses. Without limiting the foregoing, you further agree not to use our Site and/or Services to: (a) perform any commercial activities without the written consent of CAKE; (b) forge headers or manipulate identifiers as a means to mask the origin of any content transmitted through the Service; (c) disrupt the servers or networks connected to the CAKE Site; (d) transmit any content, materials or submissions that is unlawful, invasive of another’s privacy, or otherwise objectionable; (e) hurt minors in any way, “stalk” any individuals or gather personal information about other users; (f) pretend to be any person or entity or feign your affiliation with a person or entity; (g) transmit any content, materials or submissions that would infringe upon another’s intellectual property rights or would be considered “spam”, “chain letters” or any other form of solicitation; (h) post any content, materials or submissions that you should not transmit under any contract, law or fiduciary relationship or any content, materials or submissions containing any viruses or programs that would affect functionality; (i) develop password-only, restricted access pages, or hidden pages; and (j) break any applicable laws or regulations or aid any other user in achieving illegal activities.
- No Commercial Uses. You agree that you will not use the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site or Service.
- No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
- SaaS and other CAKE Products. Specific terms and conditions apply to your purchase of services from CAKE and to specific portions or features of our Site. CAKE’s obligations with regards to its services offered on or marketed through the Site are governed solely by such terms and conditions and nothing contained on the Site or in this TOU shall be construed to alter services specific terms and conditions. The materials on our Site with respect to services may be outdated and CAKE makes no commitment to update such material. Not all services mentioned in these materials will be available in your country and such references do not imply that CAKE will make available such services in your country. Please consult CAKE for information regarding the availability of particular services offering in your country.
- Links from the Site. The Site may contain links to websites operated by other parties. CAKE provides these links to other websites as a convenience, and use of these websites is at your own risk. The linked websites are not under the control of CAKE, and CAKE is not responsible for the content available on the other websites. Such links do not imply CAKE’s endorsement of information or material on any other website and CAKE disclaims all liability with regard to your access to and use of such linked websites.
- Links to the Site. Unless otherwise set forth in a written agreement between you and CAKE, you must adhere to CAKE’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with CAKE’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with CAKE, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (iv) CAKE reserves the right to revoke its consent to the link at any time and in its sole discretion.
- Intellectual Property.
- Trademarks. CAKE and the CAKE logo are trademarks/service marks of CAKE. Unauthorized use of any CAKE trademark, service mark or logo may be a violation of federal and state trademark laws.
- Copyright. The Site and Service and the content made available through the Site and Service are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site or Service, or individual sections of the content, design or layout of the Site without CAKE’s express prior written permission.
- Your content. By using this Site and/or our Services, you acknowledge that we acquire all rights to use any materials and information you submit to us so that we do not violate any rights you may have in materials you submit. By submitting content to or throughout our Site and/or Services, you grant us the non-exclusive right to reproduce, modify and distribute it as we see fit in any medium and for any propose in any form, media or technology now known or later developed. You also permit any other user to access, display and print such content for personal use. You vouch that any material you submit does not violate, plagiarize or infringe upon the right of any third party, including copyright, trademark or proprietary rights. If non-original content is included in your posting, you much obtain permission from the content owner and attribute it.
- Copyright Agent. CAKE respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. CAKE maintains a policy of termination in appropriate circumstances of users who use the Site and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Copyright Agent: Legal Department
20411 SW Birch Suite 250,
Newport Beach, CA 92660
Tel: 949-548-2253 x223
- Personal Information. You grant us a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use your personal information in connection with the creation and development of analytical and statistical analysis tools relating to the use of the customer data we collect in providing the site and our services (the “Analytical Data”). We are expressly authorized to make any commercial use of the Analytical Data, including without limitation, sharing the Analytical Data with third parties, provided that we do not sell, trade, or otherwise transfer from us any part of the Analytical Data that personally identifies any of our website users.
- Location. The Site and the Service are operated by CAKE in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws. If you access the Service from, and are a resident of, the European Community and you are a consumer you may have other or additional mandatory rights or remedies by law.
- Children. The Site and the Service are not directed toward children under 13 years of age nor does CAKE knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to CAKE.
- DISCLAIMER OF WARRANTIES. THE SITE AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CAKE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. CAKE DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
- LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CAKE, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR SERVICE, EVEN IF CAKE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF CAKE OR ANY OF THE RELATED PARTIES EXCEED $1.00.Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of CAKE and its affiliates shall be limited to the fullest extent permitted by law.
- Indemnification. You agree to indemnify, defend and hold CAKE and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that CAKE may issue for the Site and/or Service from time to time.
- Governing Law; Jurisdiction. This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 14 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Orange County, California and you agree to submit to the personal jurisdiction and venue of such courts. If either you or CAKE commences a lawsuit for a dispute arising under this ToU or relating to the Site and/or the Service, all of the issues in such action, whether of fact or law, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statutes thereto.
- Binding Arbitration.
- Arbitration Procedures. You and CAKE agree that, except as provided in Section 14.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 14 and the JAMS Rules, the terms in this Section 14 will control and prevail. Except as otherwise set forth in Section 14.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and CAKE may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CAKE WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Location. The arbitration will take place in your hometown area if you so notify CAKE in your notice of arbitration or within ten (10) days following receipt of CAKE’S arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Orange County, California, unless the parties agree to video, phone and/or internet connection appearances.
- Limitations. You and CAKE agree that any arbitration shall be limited to the Claim between CAKE and you individually. YOU AND CAKE AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and CAKE agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or CAKE’S intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- ToU Revisions. This ToU may only be revised in a writing signed by CAKE, or published by CAKE on the Site.
- No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and CAKE as a result of this ToU or your use of the Service.
- Assignment. CAKE may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without CAKE’S prior written consent, and any unauthorized assignment by you shall be null and void.
- Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
- Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
- No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
- Notices. All notices given by you or required under this ToU shall be in writing and addressed to: 20411 SW Birch Street, Suite 250, Newport Beach, CA 92663, ATTN: Robert Gissubel.
- Equitable Remedies. You hereby agree that CAKE would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.