TERMS OF SERVICE
PLEASE READ THE TERMS OF SERVICE CAREFULLY. THE TERMS OF SERVICE (“TERMS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BAKESY, LLC., A DELAWARE LIMITED LIABILITY COMPANY (“BAKESY,” “WE,” “US,” OR “OUR”) WEBSITE LOCATED AT WWW.BAKESY.APP AND WWW.ORDERBAKESY.COM / OR A SUBDOMAIN THEREOF (“SITE”). THE SITE, OUR SERVICES, AND APP ARE COLLECTIVELY CALLED “SERVICES”.
1. Agreement to Terms.
You agree to these terms by creating an account or accessing or using Bakesy with or without an account. If you do not agree with these terms, you do not have the right to use our Services.
Our collection and use of your personal information on our Services is described in our Privacy Statement. By accessing or using Bakesy, you acknowledge that you have read and agreed to our privacy statement.
3. Our Services.
(a) We provide business services that enables users of Bakesy (“Users”) who create and/or prepare baked goods (“Bakers”) to sell such baked products (“Products”) to Users who wish to purchase them (“Customers”). Bakesy does not sell, create, or prepare any Products and is not a party to any transactions between Bakers and Customers. “Users” consist of both “Bakers” and “Customers”.
(b) While we require Bakers to abide by all food safety standards listed in our terms, we do not perform background checks, vet or otherwise verify the identity, integrity, safety standards and trustworthiness of Users using our Services. We do not guarantee the quality and/or safety of the Products sold by Bakers, nor do We guarantee the ability of Customers to pay for the Products. We strongly recommend that all Users proceed with caution, be judicious and prudent, and exercise diligence in all interactions and transactions with other Users, including but not limited to other Bakers and Customers while using our Services.
(c) You agree that all Users are independent persons acting on their own accord, at their own expense, using their own resources, and at their own risk.
(d) You may come across materials that you find offensive or inappropriate while using our Services. We make no representations concerning any content posted by Users through our Services. Bakesy is not responsible for the accuracy, copyright compliance, legality, and/or decency of content posted by Users that you accessed through our Services. You release Us from any and all liability and hold Us harmless as it relates to content.
(e) You agree that you will not violate any laws in connection with your use of our Services. This includes any local, state, federal, and international laws that may apply to you. For Bakers, it is your responsibility to obtain any permits or licenses that are required to comply with any associated laws.
(a) You will only have access to the Bakesy App while your subscription is active and subsisting. You may have access to a free trial period of Bakesy in accordance with certain promotional offers. You may access Bakesy by purchasing a subscription to Our Services within the App, where allowed by the App marketplace partners. Please note that if you purchase a subscription, the sale is final, and we will not provide a refund. If you purchase a subscription through the Apple AppStore, your purchase will be subject to Apple’s applicable payment policy, which also may not provide for refunds. If you purchase a subscription through the Google Play store, the sale is final and we will not provide a refund. Your purchase will be subject to Google’s applicable payment policy, which also may not provide for refunds.
(b) You may access the Bakesy App via a monthly subscription. For the purposes of our monthly subscription, a month constitutes 30 calendar days. Our “Monthly” subscription is paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that Bakesy is authorized to charge the same credit card as was used for the initial subscription fee or other payment method. The monthly renewal subscription fees will continue to be billed to the Payment Method you provided until cancelled. You must cancel your subscription before it renews in order to avoid billing of the next month’s subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month subscription period.
(c) You agree to promptly notify Bakesy of any changes to the Payment Method you provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.
(d) In the course of your use of the Services, Bakesy and its third party payment service provider may receive and implement updated credit card information from your credit card issuer in order to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to Bakesy and Bakesy’s third party payment service provider at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer.
(e) Our obligation to provide Our Services only comes into being when we take receipt of your subscription purchase. We shall send you an email to confirm your access to the subscription purchased. Please quote the Order number in all subsequent correspondence with us. Prices in US Dollars and Euros include local taxes. All prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us.
5. Using Our Services
(a) Eligibility. You may use the Services only if you are at least 18 years of age, are capable and lawfully permitted to form a binding contract with Bakesy, and are not barred from using the Services under any applicable law.
(b) Registration and Your Information. In order to use the Services, Bakers must create an account (“Account”). You can also create an Account using your account with certain third-party social networking services such as Google (each, an “SNS Account”). If you choose to create an account using the SNS Account option, Bakesy will create your Account by using your SNS Account personal information such as your name and email address, and other personal information that your privacy settings on the SNS Account permit Us to access.
(c) User Information. You must provide Bakesy with accurate, up-to-date, and complete information for your Account. You must also agree to update information in order to keep your Account information accurate and complete. By failing to do this, We reserve the right to suspend or terminate your Account. By creating an Account, you agree to be responsible for maintaining the confidentiality of your username and password for Bakesy and are responsible for all activity under your Account. You agree to notify us promptly of any unauthorized use of your Account. Users may not by any circumstances solicit another User’s username or password for Bakesy, or any other sensitive personal information, including bank details.
6. Terms Specific to Bakers.
If you are a Baker, you agree to the following terms:
(a) You agree to personally create and/or prepare Products that you sell through our Services. You are responsible for all costs and expenses related to the creation and/or preparation of the Products, including the delivery of said Products when applicable, and your use of the Services, including but not limited to, baking supplies, baking equipment, and ingredients.
(b) You agree that Bakesy has no duty or obligation to pay you in monies, except for what is stated below in Section 8.
(c) You agree to fully abide by all applicable regulations and laws, including but not limited to all applicable food handling requirements, zoning requirements, fire codes, and any required health and safety inspections. Bakesy is not responsible of ensuring your compliance with any such standards, regulations and laws. You also agree that creating an Account does not in any way mean or imply that We have vetted or verified your compliance with any such regulations and/or laws.
(d) Your Products must constitute to be classed as baked-desserts, which includes but is not limited to: cakes, cupcakes, cookies, pies, tarts, brownies, macarons, cake pops, pastries, chocolate covered fruit, or cobblers. Your Products must be for human consumption only.
(e) You acknowledge and agree that delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD) infused Products are strictly prohibited from being sold via the Services regardless of State or Local laws.
(f) You agree to uphold all commitments on all confirmed orders made through Bakesy, which includes the types of Products you offer, the price of the Products, and the date, time, and place at which Products are being offered for pickup.
(g) You acknowledge and agree that you are solely responsible to pay any applicable taxes that arise as a result of using our Services. This includes without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through any and all orders conducted on Bakesy.
7. Terms Specific to Customers.
If you are a Customer, you agree to the following terms:
(a) You acknowledge and agree to uphold your commitment to pick up Products at the designated time and location.
(b) You acknowledge and agree that Bakers using our Services do not receive background checks, and are not vetted by Us to ensure that all regulations and laws are being complied with. You also acknowledge and agree that Bakesy does not in any way vet or verify the baking abilities of Bakers on our Services.
(c) You acknowledge and agree that all Baker Product information is furnished by the Bakers and not by Bakesy. Product information includes but is not limited to descriptions, ingredients, allergens, and dietary tags. Furthermore, Bakesy does not verify or guarantee the accuracy of any such information. You also acknowledge and agree that Products may be baked and/or prepared in residential kitchens using the same equipment that is used to prepare food containing allergens even if the allergen is marked as being absent from the Products. You acknowledge and agree that Bakesy will not be responsible for any health problem, illness, and/or other loss or damage, including but not limited to financial loss or bodily injury resulting from your reliance on the information communicated by the Baker, displayed on Bakesy, or from anyone’s consumption of the Products.
(d) You acknowledge and agree that it is solely your responsibility to ensure the safety of all Products purchased on Bakesy. This includes but is not limited to food temperature on perishable foods. If you experience a food safety issue with the Product you purchased, you can submit a complaint to us at firstname.lastname@example.org.
(e) You acknowledge and agree that Bakers may refuse service to anyone at their own discretion.
8. Payments and Fees.
“Bakesy Secure Payments” are transactions made through Bakesy’s integrated payment processing platform powered by Stripe.
“Unsecured Payments” are transactions made outside of Our Services. This includes but is not limited to transacting through Cash or Check or using other payment processing platforms (e.g. Venmo, CashApp, PayPal, etc.).
“Service Fee” means the fee charged by Bakesy to the User for transacting using Bakesy Secure Payments. This includes any and all transaction fees or payment processing fees.
“Earnings” means the monies a Baker earns through using Bakesy Secure Payments by selling Products via the Services, equal to the amounts paid by Customers for Products minus any Service Fees.
“Price” means the cost of the Products determined by the Baker and payable by the Customer. The Price does not comprise of any applicable sales or other taxes and charges payable by the Customer or Baker.
“Deposit” means an initial upfront payment for the purchase of Products via the Services. A Deposit may be free of any payment towards purchasing Products via the Services and can be solely used for reserving a spot on the Baker’s schedule.
“Balance” means the outstanding amount of monies owed to a Baker by the Customer in order to successfully fulfil the purchase of Products via the Services.
“Chargeback” means the amount of a transaction that may be reversed to the Customer’s payment account.
(b) You acknowledge and agree that Bakesy is not responsible for collecting or refunding Unsecured Payments and is not responsible for any transactions made outside of Our Services. Unsecured Payments are done at your own risk and you agree to indemnify and hold Bakesy harmless from and against any and all claims, losses, expenses, damages and/or liabilities when transacting outside of Our Service.
As a Baker, when using Bakesy Secure Payments, Bakesy will act as a limited payment collection agent for the sole purpose of collecting payments from Customers on your behalf and transferring the payments to you. You further agree that:
1. Earnings will be transferred to you in accordance with the payment information registered with your Account (“Payout Information”). Payout Information includes but is not limited to your name, address, and any bank account information.
2. It is your responsibility to ensure that your Payout Information is accurate, complete and up-to-date. We will not be responsible for the failure to complete the transfer of any Earnings to you if you provide inaccurate, out of date, or incomplete Payout Information.
3. You acknowledge and agree that Bakesy reserves the right to make any changes to our Service Fees at our sole and absolute discretion.
4. For the avoidance of doubt, We only have an obligation and will only transfer Earnings calculated based on amounts actually collected and received by Bakesy through Bakesy Secure Payments from Customers via our Services.
5. To the extent you have received payment for Products via our Services, Chargebacks may occur if the transaction is (1) disputed by the Customer, (2) reversed for any reason, (3) was not authorized or if we have any reason to believe that the transaction was not authorized, or (4) is allegedly unlawful, suspicious, or in violation of Our Terms of Service. Bakers shall owe Bakesy and will immediately pay Bakesy the amount of any Chargeback and any associated fees, fines, or penalties assessed by any processing financial institutions, MasterCard, Visa, American Express, Discover, and/or other payment card networks, associations, or companies.
6. In the event of a requested refund initiated by the Baker for an order that was paid using Bakesy Secure Payments, we reserve the right to make the Baker responsible for facilitating the refund outside of Bakesy. In which case, we will credit the baker the full amount of the Service Fee from the order.
(c) If you are a Customer, you acknowledge and agree to the following terms:
1. You acknowledge and agree that Bakesy is not responsible for any and all Unsecured Payments. Unsecured Payments are done at your own risk and you agree to indemnify and hold Bakesy harmless from and against any and all claims, losses, expenses, damages and/or liabilities when transacting outside of Our Service.
2.You acknowledge and agree that orders are not confirmed until you receive an invoice from the Baker and successfully pay any monies that may be due at the time. Orders may be cancelled by the Baker at their sole discretion.
3. You acknowledge and agree that all Deposits and any associated Service Fees are non-refundable unless otherwise stated by the Baker.
4. You acknowledge and agree that you are not entitled to the Product(s) purchased through our Services until you successfully pay the outstanding balance owed to the Baker.
5. If using Bakesy Secure Payments, you expressly authorize Us (or our third-party payment processor) to charge you for each such Transaction (plus any applicable sales or other taxes and other charges). We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Customer Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Customer Payment Information. When you initiate a Transaction, you authorize Us to provide your Customer Payment Information to third parties so We can complete your Transaction, and to charge your payment method for the Transaction (plus any applicable sales or other taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Customer Payment Information).
6. You acknowledge and agree that Bakesy reserves the right to make any changes to our Service Fees at our sole and absolute discretion.
(a) Your Content. We may require or allow you to submit or upload text, photographs, images, videos, reviews, information and materials on Bakesy or otherwise in connection while using Bakesy and/or participating in promotional campaigns we conduct on the Site or on our social media pages (collectively, “Your Content”).
(b) License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant Bakesy an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting Bakesy, and to sublicense these rights to third parties.
(c) Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Bakesy and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with any of the provisions within these Terms.
(d) Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear or whose Products appear in Your Content; and (3) Your Content does not violate the law or these Terms.
(e) Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Bakesy Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
(f) Reviews. Bakesy may provide the ability to leave public and/or private reviews of Users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that Bakesy has no obligation to preserve or indefinitely store any reviews. If you are a Baker, we have no obligation to provide you with the content of any reviews about you submitted by other users of Bakesy, whether before or after termination of your account with Bakesy. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from our Service at any time.
10. Intellectual Property.
Bakesy retains all rights, title and interest in and to the Bakesy Service, the technology and software used to provide it, all electronic documentation and content available through our Service (other than Your Content), and all intellectual property and proprietary rights in the Bakesy Service and such technology, software, documentation and content. Except for your rights to access and use our Services set forth in these Terms, nothing in these Terms or licenses conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate any feedback or suggestions for improvement that you provide to us concerning Bakesy, without any obligation of compensation.
11. Changes to the Terms of Services.
You understand and agree that We may change the Terms at any time, and that any such changes will be effective when We post the modified Terms, unless otherwise required by applicable law. Your continued access and use of Bakesy after We post the modified Terms will constitute your consent to be bound by the modified Terms.
12. App Stores.
You acknowledge and agree that the availability of the Bakesy app is dependent on the third party from which you received the Application license, e.g., the Apple AppStore or Google Play app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Bakesy and not with the App Store. Bakesy, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Bakesy app, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Bakesy app or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
13. Your Conduct on Bakesy. When you use Bakesy, you agree to the following:
(a) To use Bakesy only in a lawful manner and only for its intended purposes.
(b) Not to submit viruses or other malicious code to or through our Services.
(c) Not to use Bakesy or engage with other users of Bakesy, for purposes that violate the law.
(d) Not to use Our Services for purposes of competing with Bakesy or to promote other products or services.
(e) Not to post reviews about Users that aren’t based on your personal experience, that are intentionally inaccurate or misleading, or that violate these Terms.
(f) Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
(g) Not to post “spam” or other unauthorized commercial communications.
(h) To use Bakesy only for your own purposes, and not to impersonate any other person.
(i) Not to transfer or authorize the use of your Bakesy account by any other person, or to engage in fraudulent transactions.
(j) Not to provide false information in your Bakesy profile, or to create multiple or duplicate accounts.
(k) Not to interfere with our provision of, or any other user’s use of, our Services.
(a) You may terminate your use of the Services at any time by cancelling or deleting your Account. You acknowledge that upon such cancellation or deletion, We may decide, at our sole and absolute discretion, to delete and/or no longer maintain any User Content that you have provided to Us. You hereby acknowledge and agree that We are in no way liable for any damage that this action may cause you.
(b) We may terminate your access to and use of the Services, at our sole and absolute discretion, which may be exercised with or without notice to you. Further, We reserve the right to suspend, deactivate, limit, or otherwise restrict your Account and your access to and use of the Services, in whole or in part, at our sole and absolute discretion, which may be exercised with or without notice to you. You hereby acknowledge and agree that We are in no way liable for any damage that this action or omission may cause you.
15. Independent Relationship.
You acknowledge and agree that nothing in these Terms will be construed as making either party the partner, joint venture, agent, legal representative, employer, worker, or employee of the other. Nothing in these Terms shall be construed as creating such a relationship between you and Bakesy. You and Bakesy are acting on an independent basis, and you may not hold yourself out as representing Bakesy in any capacity or manner. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW, AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD BAKESY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other Users of our Service; (2) breach of these Terms; (3) disputes with other Users of our Service; (4) Your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties; (6) Your Content; or (7) Your use of any Background Check or Identify Verification information in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
17. Warranty Disclaimers.
The information found on Bakesy, including text, graphics, information, links or other items, are provided "as is" and "as available." Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through Bakesy, but not directly by Bakesy, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BAKESY DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON OUR SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN BAKESY; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN OUR SERVICE WILL BE CORRECTED. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, BAKESY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, WITH RESPECT TO OUR SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, REGARDING ANY PRODUCTS VIA OUR SERVICE.
18. Limitation of Liability.
(a) Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will Bakesy be liable to you for any indirect, special, incidental, or consequential damages, or for any business losses, or loss of profit, revenue, contracts, data, goodwill or other similar losses or expenses that arise out of or relate to the use of, or inability to use, our Service, including without limitation damages related to any information received from our Service, removal of your profile information or review (or other content) from Bakesy, any suspension or termination of your access to Bakesy, or any failure, error, omission, interruption, defect, delay in operation or transmission of our Service, even if We are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) Limit on Our Liability to You. IN NO EVENT WILL BAKESY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO BAKESY FOR USE OF THE SERVICES OR CONTENT, OR ONE HUNDRED U.S. DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BAKESY, AS APPLICABLE.
(c) No Liability for Non-Bakesy Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BAKESY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH OUR SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH BAKESY, OR FOR ANY INTERACTIONS WITH OTHER USERS OF OUR SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A BAKESY USER, YOU AGREE TO RELEASE BAKESY FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL BAKESY BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A BAKER OR CUSTOMER THAT FAILS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
19. Copyright Policy. We respect the intellectual property rights of others and expect our Users to do the same. It is Our policy to terminate in appropriate circumstances Users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
20. Links to Third Party Websites or Resources. The Services (including the App) may contain links to third-party Websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those Websites or resources or links displayed on such Websites. You acknowledge sole responsibility for, and assume all risk arising from your use of any third-party Websites or resources.
21. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BAKESY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(a) Arbitration Agreement; Claims. This Section is referred to as the "Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section (i) below, you and Bakesy (together, the “Parties”) agree that any and all disputes or claims that arise between you and Bakesy relating to our Services, interactions with others on Bakesy, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of terms above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
(b) Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section (i) below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
(c) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND BAKESY AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION (I) BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BAKESY AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), 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 (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY 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 BAKESY USERS.
(d) Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at email@example.com. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
(e) Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted in English by a neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in the terms above. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 USD (or equivalent in local currency) or less, you or Bakesy may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Bakesy subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Bakesy, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Georgia. The arbitrator will not be bound by rulings in prior arbitrations involving different Bakesy users, but is bound by rulings in prior arbitrations involving the same Bakesy user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
(f) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be shared equally by you and Bakesy, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Bakesy will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bakesy will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Bakesy for all fees associated with the arbitration paid by Bakesy on your behalf that you otherwise would be obligated to pay under the JAMS Rules.
(g) Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
(h) Severability. If any term, clause or provision of this section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this section will remain valid and enforceable.
(i) Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section (i). The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must email the Opt-Out Notice to firstname.lastname@example.org. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(s) used to register for the Bakesy Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 22.
(j) Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Bakesy prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Bakesy prior to the effective date of removal.
22. Governing Law and Jurisdiction. These Terms, and any dispute between you and Bakesy, will be governed by the laws of the State of Missouri, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 21 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Bakesy must be resolved exclusively by a state or federal court located in the State of Missouri. You and Bakesy agree to submit to the personal jurisdiction of the courts located within St. Louis County for the purpose of litigating all such claims or disputes.
23. Miscellaneous. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
If you have any questions about these Terms or the Services, please contact us at email@example.com.