Effective Date: August 20, 2018
Thank you for visiting the website of Porto’s Bakery, Inc. and its affiliates (“Porto’s,” “we” or “us”). These Terms of Use (“Terms”) apply to your use of our website www.portosbakery.com and the other sites or online services owned, operated or offered by or on behalf of Porto’s or its affiliates, including www.portosbakeathome.com and store.portosbakery.com (collectively, the “Site”). The Site is owned and operated by Porto’s.
It is important to us that you, and our other visitors, are fully aware of your respective legal rights and obligations. For that reason, we have created these Terms as the legally binding terms to govern your use of this Site. Please read these Terms carefully before using the Site, because they affect your legal rights and obligations (e.g., requiring arbitration, prohibiting class relief, and limiting our liability).
1. You Accept These Terms.
If you do not agree with any of these Terms, including the Privacy Policy incorporated herein, please do not use this Site. By using this Site you will be deemed to have irrevocably agreed to these Terms. Some areas of this Site may be subject to additional terms and conditions, which you should read carefully before making any use of those areas. Such additional terms are supplemental to these Terms and will not change or replace these Terms regarding the use of the Site, unless otherwise expressly stated.
2. Updates to Terms.
Please note that these Terms may be revised and reissued, prospectively, by posting updated terms on the Site. You consent and agree to receive notices of updates of these Terms through our posting of updated Terms on the Site. You should visit this page regularly to review the current terms. Your continued use of the Site will be deemed as irrevocable acceptance of any revisions.
3. Legal Capacity.
This is a general audience Site for adults. We will assume (and by using this Site you warrant that) you have legal capacity to enter into the agreement set out in these Terms (i.e., that you are of sufficient age and mental capacity and are otherwise entitled to be legally bound in contract).
4. The Information You Give Us Must Be Correct.
To access this Site or some of the resources it has to offer, you may be asked to provide registration details. It is a condition of use of this Site that all the details you provide be correct, current and complete. If we believe the details are not correct, current, or complete, we have the right to refuse you access to the Site, or any of its resources and to terminate or suspend your account.
5. Online Privacy Policy.
Your privacy is important to us. To better protect your privacy, we provide a notice explaining our online information practices and the choices you can make about the way your information is collected and used at this Site. Click here to view our Privacy Policy, which forms part of these Terms.
6. Disclaimer of Warranties.
YOUR USE OF THIS SITE IS AT YOUR OWN RISK. THE SITE AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT IN THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SITE, PORTO’S, AND ANY SUBSIDIARIES OR AFFILIATED COMPANIES OF PORTO’S (“THE PORTO’S GROUP”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE AND NON-INFRINGEMENT. THE PORTO’S GROUP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS SITE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PORTO’S GROUP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT ON THE SITE OR ANY WEBSITES LINKED TO THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE PORTO’S GROUP MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT IN THE SITE OR ANY WEBSITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND THE PORTO’S GROUP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT OF THE SITE OR ANY OTHER WEBSITE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE PORTO’S GROUP DISCLAIMS ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE) INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, RESULTING FROM ANY USE OF, OR INABILITY TO USE, THE SITE OR ANY OTHER WEBSITE, OR THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT ON THE SITE OR ANY OTHER WEBSITE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF ANY MEMBER OF THE PORTO’S GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU (AND NOT ANY MEMBER OF THE PORTO’S GROUP) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE. IF YOU ARE DISSATISFIED WITH THIS SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THIS SITE.
8. Indemnification.
YOU UNDERSTAND THAT YOU ARE PERSONALLY RESPONSIBLE FOR YOUR BEHAVIOR WHILE ON THIS SITE AND AGREE TO INDEMNIFY, SAVE HARMLESS AND DEFEND THE PORTO’S GROUP AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, COSTS, PENALTIES, FEES, OR OTHER EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ACTUAL ATTORNEYS’ FEES) THAT THE PORTO’S GROUP MAY INCUR IN CONNECTION WITH ANY THIRD PARTY CLAIM RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH (DIRECTLY OR INDIRECTLY) YOUR USE OF THIS SITE OR ACCESS TO THIS SITE, OR YOUR VIOLATION OF THESE TERMS OF USE OR THE RIGHTS OF ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THIS SITE OR ACCESS TO THIS SITE.
9. Dispute Resolution; Binding Arbitration; No Class Relief.
YOU SHOULD REVIEW THIS PROVISION CAREFULLY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS EXCEPT FOR MATTERS THAT YOU FILE IN SMALL CLAIMS COURT IN THE STATE OR MUNICIPALITY OF YOUR RESIDENCE WITHIN THE JURISDICTIONAL LIMITS OF THE SMALL CLAIMS COURT AND AS LONG AS SUCH MATTER IS ONLY PENDING IN THAT COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES MAY BE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. AN ARBITRATOR’S DECISION IS AS ENFORCEABLE AS ANY COURT ORDER AND IS SUBJECT TO VERY LIMITED REVIEW BY A COURT. YOU EXPRESSLY AGREE TO THIS PROVISION AS A CONDITION OF ACCESSING OR USING THIS SITE.
For any dispute you have with Porto’s or these Terms of Use, you agree to first contact us at legal@portosbakery.com, and to attempt to resolve such dispute with us informally. In the unlikely event that we are unable to resolve any dispute you bring to our attention after sixty (60) days, and for any other dispute we raise, you and Porto’s agree that, except where prohibited by law, all disputes shall be resolved individually and exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator, all pursuant to the AAA Commercial Arbitration Rules as supplemented by AAA’s Supplementary Procedures for Consumer-Related disputes (collectively, the “AAA Rules”). For more information on the AAA, the AAA Rules, or the process for filing an arbitration claim, you may call the AAA at (800) 778-7879 or visit the AAA website at http://www.adr.org.
You and the Porto’s Group agree to the following with respect to the arbitration of any dispute hereunder: (a) ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) the arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (e) we reserve the right, in our sole discretion, to assume responsibility for any or all of the costs of the arbitration; (f) the arbitrator will honor claims of privilege and privacy recognized at law; (g) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (h) the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (i) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. ANY RIGHT TO A TRIAL BY JURY, WHETHER ON AN INDIVIDUAL OR A CLASS BASIS, IS HEREBY WAIVED.
This provision will survive termination of these Terms of Use or your right to access or use this Site. With the exception of the subpart prohibiting arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the AAA Rules, then the balance of this provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence.
Any claim or cause of action you may have with respect to this Site, including without limitation your ability to access or use this Site, must be commenced within one (1) year after the claim or cause of action arose.
10. Trademarks and Copyrights.
This Site and materials incorporated by Porto’s on this Site (“Material”) are protected by copyrights, patents, trade secrets or other proprietary rights (collectively, “Copyrights”). Some of the characters, logos, or other images incorporated by Porto’s on this Site are also protected as registered or unregistered trademarks, trade names, and/or service marks owned by Porto’s or others (collectively, “Trademarks”). Porto’s respects the intellectual property rights of others and asks users of this Site to do the same.
11. Your Use of Material.
Your right to make use of this Site and any Material or other content appearing on it is subject to your compliance with these Terms. Modification or use of the Material or any other content on this Site for any purpose not permitted by these Terms may be a violation of the Copyrights and/or Trademarks protected by law and these Terms and is prohibited.
You may access and display Material and all other content displayed on this Site for non-commercial, personal use only. The Material and all other content on this Site may not otherwise be copied, reproduced, republished, uploaded, posted, transmitted, distributed, or used in any way unless specifically authorized by Porto’s. Any authorization to copy Material granted by Porto’s in any part of this Site for any reason is restricted to making a single copy for non-commercial, personal use only, and is subject to your keeping intact all copyright and other proprietary notices. Using any Material on any other website or networked computer environment is prohibited. Also, decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software on this Site into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited.
12. Feedback.
Porto’s is interested in hearing from you regarding your comments, feedback or input about our Site, products and services (“Feedback”). With respect to any Feedback you provide to Porto’s, you (and your successors and assigns) hereby grant to the Porto’s Group a worldwide, transferable, non-exclusive, perpetual, irrevocable, royalty-free, fully paid up license: (a) to make, have made, use, display, copy, perform, modify, and create derivative works of, the Feedback; (b) to sell, offer to sell, supply or otherwise distribute (through multiple tiers of distribution) the whole or any part of the Feedback (and derivative works thereof) as part of the Porto’s Group products and services; (c) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties, and (d) to import and otherwise exploit such Feedback for any purpose whatsoever.
13. Product Specifications.
We do our best to describe every product or service offered on this Site as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Site is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Porto’s shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancelling of your order, we will issue a credit to the same account used for your order in the amount of the charge. Additional terms may apply.
14. System Abuse.
Without limitation, you agree not to send, create, or reply to so-called “mailbombs” (i.e., emailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent) or engage in “spamming” (i.e., unsolicited emailing for business or other purposes) or undertake any activity which may adversely affect the operation or enjoyment of this Site by any other person, including placing malware on the Site. You may not reproduce, sell, resell, or otherwise exploit any resource, or access to any resource, contained on this Site. You may only use this Site and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing, or transmitting any unlawful material through this Site.
15. Security.
Any usernames and passwords used for this Site are for individual use only. You shall be responsible for the security of your username and password. Porto’s shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that Porto’s considers insecure, Porto’s will be entitled to require this to be changed and/or terminate your account.
16. Violation of Security Systems.
You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools, malware, or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Porto’s reserves the right to release your details to system administrators at other sites, law enforcement, and/or governmental authorities in order to assist them in resolving security incidents.
17. Investigations.
Porto’s reserves the right to investigate suspected violations of these Terms, including without limitation, any violation arising from any submission or emails you make or send. Porto’s may suspend any users whose conduct is under investigation and may remove such material from its servers, without notice, as it deems appropriate. If Porto’s believes, in its sole discretion, that a violation of these Terms has occurred, it may warn users, suspend users and passwords, terminate accounts, or take other corrective action it deems appropriate. Porto’s will fully cooperate with any law enforcement authorities or court order requesting or directing Porto’s to disclose the identity of anyone believed to have violated these Terms. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS ALL MEMBERS OF THE PORTO’S GROUP FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY MEMBER OF THE PORTO’S GROUP DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER A MEMBER OF THE PORTO’S GROUP OR LAW ENFORCEMENT AUTHORITIES.
18. Service.
In order to use this Site, you must obtain access to the World Wide Web and possibly pay any service fee associated with that access. You will need to provide all equipment necessary to connect to the Site on the World Wide Web (including a computer, modem, mobile device, tablet, and/or other access devices).
19. Reservation of Rights.
Porto’s reserves the right to modify or discontinue, temporarily or permanently, all or any part of this Site and/or any software, facilities, and services on this Site, with or without notice and/or to establish general guidelines and limitations on their use.
20. Local Regulations.
Porto’s makes no representation that Materials or other content on the Site are appropriate or available for use outside the United States, its territories, possessions, and protectorates. If you choose to access the Site from other locations, you do so on your own initiative and at your own risk.
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
21. Third-Party Sites.
This Site may link you to other sites on the Internet, including our payment and job search partners. You acknowledge that (whether or not such sites are affiliated in any way with Porto’s) Porto’s is not responsible for the accuracy, copyright compliance, privacy compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by Porto’s or any association with its operators.
22. Choice of Law.
With the exception of Section 9 which will be construed in accordance with the FAA, these Terms shall be governed by, construed and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and to be performed entirely within California, without giving effect or regard to any principles or doctrines of conflicts of law.
23. Notice for California Users.
Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
24. How to Contact Us.
This Site is controlled and operated by Porto’s located at 3614 West Magnolia Blvd., Burbank, California 91505. Please forward any questions, comments or complaints about the Site to contactus@portosbakery.com.
25. General.
If any provision of these Terms are adjudged, by written decision, to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between you and Porto’s relating to the matters contained here and the Site.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Porto’s Bakery, Inc. (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 (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 Porto’s Bakery, Inc. 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 frozen baked goods and other Porto’s Bakery products. 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 contactus@portosbakery.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 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 Porto’s Bakery, Inc.’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.
