Terms of Use

Effective Date: September 6, 2018


These terms and conditions of use (the “Terms of Use”) of the website and Hestan Smart Cooking software mobile application (that is available for download and use from the Apple Store Website and Android Device applications website) govern and apply to anyone accessing or using the Hestan Smart Cooking, Inc. (hereafter “HSC,” “we,” “us,” or “our”) website located at www.hestancue.com (the “Website”), the mobile application software any other website(s) owned and/or operated by HSC, including any of its subsidiaries or corporate affiliates (collectively, our “Services”).

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING ANY OF THE SERVICES. Your use of any of the Services is expressly conditioned on your compliance with and acceptance of the following terms and conditions. If you choose to continue to use or access the Services after having the opportunity to read the Terms of Use, you recognize that HSC has provided valuable consideration by offering the Services, and in exchange for that valuable consideration, you agree to the Terms of Use and Privacy Policy. If you do not agree with any part of the following Terms of Use or Privacy Policy, please do not use any of the Services.

THE SERVICES ARE NOT INTENDED FOR USE OR ACCESS BY ANYONE UNDER THE AGE OF 13. IF YOU ARE UNDER THE AGE OF 13, YOU MAY NOT USE OR ACCESS THE SERVICES OR PROVIDE US WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. If you are 13 or older but under the age of 18, you represent that you have reviewed these Terms of Use with your parent or legal guardian and that you and your parent or guardian understand and consent to these Terms of Use.


Copyrights, trademark rights, database rights, design rights, trade secrets and any and all other intellectual property and other rights relating to the Services existing now or in the future including but not limited to computer programs, source and object code, documentation, software graphics, text, images, designs, videos, animations, databases, logos, domain names, trade names and trade identities (collectively referred to as the “Content”), are the property of HSC, its parents, subsidiaries, affiliates and/or licensors.

Unless expressly granted in writing by HSC, no rights in or to the Content except those expressly set forth within these Terms of Use are granted to you. You agree not to encumber, license, modify, publish, copy, sell, transfer, transmit, or in any way exploit, any of the Content, software and Services, nor will you attempt to do so. Except as otherwise expressly permitted by applicable law, you agree not to copy, redistribute, publish or otherwise exploit material which you download from the Services without the express prior written permission of HSC and, if applicable, the owner of such material (from whom you are solely responsible for obtaining permission). You further agree and acknowledge that you shall not acquire any ownership rights by downloading content or software from the Services.

Any third-party content, products or services posted on, transmitted through, or linked to the Services are the sole responsibility of the third-party originator of such content. Links to any third-party content are provided for your convenience only. If you choose to access any third-party content, you do so at your own risk. YOU ACKNOWLEDGE AND AGREE THAT HSC IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ACCESSING A THIRD-PARTY WEBSITE, OR ANY DEALINGS WITH ANY THIRD-PARTY WEBSITE, OPERATOR THEREOF, OR ANY THIRD-PARTY CONTENT, PRODUCTS OR SERVICES.


To access certain Services, you may need to register for an account, and you may be asked to provide a username and a password. You agree to provide accurate, current and complete information required to register with the Services and/or at any other time as may be required in the course of using the Services. You further agree to maintain and update your registration information as required to keep it accurate, current and complete. You should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your device You agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your user account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your user ID or password), you will immediately notify HSC. We reserve the right to cancel your account at any time for any reason without prior notice to you.

By entering any information on any of the Services, you represent and warrant that: (i) you are using your actual identity; (ii) you have provided only true, accurate, current and complete information; and (iii) you will maintain and promptly update the information that you provide to keep it true, accurate, current and complete. By using the Services and providing us with your personal information upon registration or otherwise, you also accept the terms set forth in our Privacy Policy.


You are prohibited from using the Services to post or transmit any User Generated Content (as defined below) which infringes or may infringe third party intellectual property rights or which is threatening, false, misleading, inflammatory, defamatory, invasive of privacy, obscene, pornographic, abusive, discriminating, illegal or which could constitute or encourage conduct that would be considered a criminal offence, violate the rights of any party or which may otherwise give rise to civil liability or violate any law.

The Services and the content provided in any of the Services may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of HSC, except that you may download, display and print one copy of the materials presented on any of the Services on a single computer for your personal, non-commercial use only. “Deep-linking,” “embedding” or using analogous technology is strictly prohibited. Unauthorized use of any of the Services and the materials contained on any of the Services may violate applicable copyright, trademark or other intellectual property laws. You must retain all copyright and trademark notices, and any other proprietary notices, contained in the materials. The use of such materials on any other website or in any environment of networked computers is prohibited. You may share links from the Services with others or post them on social media Services. However, you are prohibited from posting to or transmitting from any of the Services any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. You are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the Internet, technology, data, electronic mail, or privacy. You agree that you will not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of any of the Services, and that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. In addition, you may not use any robot, spider, other automatic device, or manual process to monitor, copy or scrape any of our web pages or the content contained herein, without the prior express written consent from an authorized executive of HSC (such consent is deemed given for standard search engine technology employed by Internet search websites to direct Internet users to the Services). You agree you will not interfere or attempt to interfere with or damage, impair or disable the operation of the Services, by any means, including but not limited to providing links to third party sites or uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code. You may also not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not make any unsolicited offers, request, advertisements, or spam.

It is understood that your access to our website and software is a limited license subject to personal use in conjunction with the Hestan Smart Cooling hardware, such as pots, pans and cooking appliances, including induction burners. In such a license, you will have access to our valuable for the limited purpose of the personal use of the Hestan Cue device for the cooking and preparation of the food. Such Trade Secrets include recipes and more particularly, but without limitation, combinations of cooking parameters, which generally include cooking times, time to flip, stir or invert food, and cooking temperatures. HSC has gone to great effort and expense to determine optimum cooking parameters as a function of the food and results characteristics, which include the foodstuff type, initial temperature and initial thickness and intended or recommended level of doneness.

Hence, the cooking parameters are being made available to you for the sole purpose of cooking foods according to the recipes we provide via the licensed software, and are only made available in our software as you input food and result characterizations of food that you intend to cook and consume for the personal pleasure and nourishment of you, your family and household guests.

As these Trade Secrets are not generally available to the public, they give HSC a competitive advantage over others who would have to independently determine them. It is a violation of this agreement as well as the Defend Trade Secrets Act of 2016 (DTSA) (18 USC §§1831–1839) and the California Uniform Trade Secrets Act (CC §§3426–3426.11) to use the licensed software to enter food and result characteristics solely for the purpose of obtaining and compiling combination of cooking parameters generated by our software. It is also a violation of this agreement to compile such information from casual use, or to publish, disclose or transmit it to any third party, or to use this information for one’s own competitive advantage, such as without limitation for the use in or in conjunction with any third party commercial products or services.

Pursuant to the Defend Trade Secrets Act of 2016, each party acknowledges that you as a Licensee shall not have criminal or civil liability under any Federal or State Trade Secret law for the disclosure of Trade Secrets that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Licensee files a lawsuit for retaliation by Licensor for reporting a suspected violation of law, Licensee may disclose Trade Secrets to Licensee’s attorney and use the Trade Secret information in the court proceeding, if Licensee (i) files any document containing the Trade Secret under seal, and (ii) does not disclose the Trade Secret, except pursuant to court order.

You represent, warrant and agree that you will comply with the above acceptable use requirements. HSC reserves the right, in its sole discretion, to take such action as HSC sees fit in relation to any user who partakes in any of HSC’s prohibited uses or in breach of any of the other terms set forth herein. In extreme cases or as required by law or regulation, HSC reserves the right to take court action and/or report users to the relevant authorities. Because your breach of this Agreement may cause us irreparable harm, for which money is inadequate compensation, we are entitled to injunctive relief, without the need to post bond, to enforce this Agreement as well as to prevent any threatened, continuing, likely or suspected disclosure of our trade secrets, in addition to damages and other available remedies.


For your convenience and to improve the usage of the Services, links to websites that are owned and controlled by third parties may be provided from time to time. HSC does not assume any responsibility or liability with respect to any third party website linked from any of the Services (or any website linking to any of the Services), including its content and operation. HSC does not review or monitor such third party links. A link from any of the Services to another third party website (or a link from another website to any of the Services) does not constitute a referral, endorsement, approval, advertising, offer or solicitation with respect to such third party website, its contents, or any products or services advertised or distributed through that website. While any of the Services may contain “links” to other third party services, we are not responsible for the content or the privacy practices employed by them.

The Services may be integrated with third party applications, websites, and services (e.g., Facebook) to make available content, products, and/or services to you. These third party applications have their own terms and conditions of use and privacy policies and your use of these third party applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that HSC does not endorse and is not responsible or liable for the behavior, features, or content of any third party application or for any transaction you may enter into with the provider of any such third party applications.


Please read the official rules that accompany each special offer, coupon, discount, contest and sweepstakes that we may offer or conduct in connection with the Services. THESE OFFICIAL RULES MAY SUPERSEDE THESE TERMS OF USE AND THE PRIVACY POLICY.


All opinions, remarks, comments, artwork, graphics, photographs, links, username and other information that identifies you, questions, suggestions, information, text, videos and other materials that you or other users of the Services post to the Services or transmit using the Services (“User Generated Content”) will be deemed non-confidential and non-proprietary. Accordingly, HSC shall have the non-exclusive, royalty-free, right to use, copy, distribute and disclose to third parties any User Generated Content for any purpose, in any medium and throughout the world. You acknowledge and agree that HSC only acts as a passive conduit for the distribution of the User Generated Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Generated Content. HSC does not continuously monitor User Generated Content published by you or moderating between users, nor shall HSC be under an obligation to do so. Without limit to the generality of the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Generated Content do not necessarily represent those of HSC. Any use by you of the User Generated Content is entirely at your own risk. You represent that any User Generated Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe any third party intellectual property rights, rights of privacy or moral rights and does not contain any defamatory or disparaging statements. Furthermore, you represent that you have the capacity to grant the license as stipulated in this paragraph.

HSC reserves the right at its sole discretion to block or remove (in whole or part) any User Generated Content posted or transmitted by you and which HSC believes is not in accordance with these Terms of Use (including materials which infringe or may infringe third party intellectual property rights, rights of privacy or moral rights), or is otherwise unacceptable to HSC.


You agree to defend, indemnify and hold harmless HSC and its parents, subsidiaries, affiliates, employees, representatives, agents, directors, officers, managers, shareholders, third party content providers and licensors (the “Indemnified Parties“) from and against all demands, liabilities, judgments, fines, interest, penalties, damages, losses, costs, claims or expenses (including, without limitation, attorneys’ fees and fees of other professional advisers) arising out of (i) your use of the Services; (ii) your online conduct and User Generated Content; (iii) your violation, breach or alleged breach of these Terms of Use; (iv) your failure to comply with any applicable laws or regulations; (v) your negligence, willful misconduct, or violations of the intellectual property or other rights of any person; or (vi) any of your dealings or transactions with other persons resulting from use of the Services.

Your use of the Services is at your own risk. You agree that our sole obligation to you is to provide the Services “as is.” Neither HSC nor any of its employees, officers, directors nor any of its agents or any other party involved in creating, producing or delivering the Services shall be liable to you or to any third party for your use of, or the inability to use, the Services and its content except in cases of (a) gross negligence, recklessness, or an act of knowing or intentional willful misconduct; or (b) a violation of a consumer protection statute in connection with the Services.






HSC respects the intellectual property rights of others, and requires that the people who use any of the Services do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, you or your agent may submit a Digital Millennium Copyright Act (“DMCA”) notice by providing HSC with the following information in writing to the Copyright Agent named below:
  • a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Site;
  • your name, address, telephone number, and email address and all other information reasonably sufficient to permit HSC to contact you;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; 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 behalf of the owner of an exclusive right that is allegedly infringed.

Copyright Agent

Hestan Smart Cooking
1 Meyer Plaza
Vallejo, CA 94590
Attn: Legal Department
Email: support@hestancue.com


Any notification that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon HSC actual knowledge of facts or circumstances from which infringing material or acts are evident. All notices must meet the then current statutory requirements imposed by the DMCA.


Registration information and certain other information about you are subject to our Privacy Policy. Please read the Privacy Policy for information on how your personal information and other information about you will be handled. By accepting these Terms of Use you are also accepting the terms of the Privacy Policy, which is incorporated herein by reference for all purposes.


HSC reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms of Use at any time. If you continue to use the Services, check the footer for notice of changed Terms of Use. If the footer indicates that the Terms of Use have been changed, please immediately read them. Your continued use of the Services after we have posted notice of such modifications, alterations or updates, and after you have had the opportunity to read the revised Terms of Use means you accept those changes.

If you do not consent to any of the changes of the Terms of Use, your only remedy is to terminate your access to and use of the Services. Your failure to terminate use of the Services shall constitute acceptance of the changes to the Terms of Use.


You understand and agree that HSC will determine your compliance with these Terms of Use in its sole discretion. HSC reserves the right to restrict, suspend, deny or terminate access to all or part of the Services and to deny access to any person in its sole discretion without notice or liability of any kind. The Terms of Use are effective until terminated by either party. You may terminate the Terms of Use by discontinuing your access to and use of the Services. The privileges granted to you under the Terms of Use will terminate immediately and automatically without notice from HSC if, in its sole discretion, you fail to comply with any term or provision of the Terms of Use. Upon such termination (i) all licenses granted by HSC to you hereunder will terminate and you will no longer have permission to access the Services; and (ii) the following rights and provisions shall survive in perpetuity: (a) all licenses granted hereunder by you to HSC; (b) all provisions of these Terms of Use regarding disclaimers of warranties and liabilities by HSC, and (c) all provisions providing, in whole or in part, that users shall defend, indemnify and hold harmless HSC or third parties.


These Terms of Use, Privacy Policy and their respective interpretations shall be governed by the laws of the State of California, United States of America, without regard to its conflict of laws provisions. You consent and submit to the jurisdiction and venue of the state and federal courts located in San Francisco, California, United States of America, in all questions and controversies arising out of your use of any of the Services and these Terms of Use.


You may not assign, convey, subcontract or delegate your rights, duties or obligations hereunder.


The Terms of Use contains the entire understanding of you and HSC and supersedes all prior understandings of the parties hereto relating to the subject matter hereof and cannot be changed or modified by you except by a writing signed by an authorized signatory for HSC.


Unless otherwise stated, any other rules, restrictions, guidelines and terms and conditions that may be posted or made available in connection with a particular feature on the Services are incorporated by this reference into these Terms of Use.

Your use of any of the Services is independent of HSC and not as an employee, agent, partner, or joint-venturer with HSC for any purpose.

If any provision of the Terms of Use is found to be invalid, illegal or unenforceable, the Terms of Use will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect.

No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.

The section headings used herein are for convenience only and shall not be given any legal import.


If you have any comments or questions regarding this Terms of Use, please contact us at support@hestancue.com or send a written request to Hestan Smart Cooking, 1 Meyer Plaza, Vallejo, CA 94590.


Hestan Smart Cooking  (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy {Privacy Policy} (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

1. User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.

2. User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt-out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that {https://hestancue.myshopify.com/} and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery, and sale of {Hestan Cue Cookware and accessories, Recipe App,  and Smart Cooktop}. Messages may include checkout reminders.

4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at {support@hestancue.com}. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.

6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

7. Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.

9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18), and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

  • Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
  • Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in {Vallejo, Ca} before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which {Hestan Smart Cooking}’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests, and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.