TERMS AND CONDITIONS, USE AND PURCHASE
The Web Sites located at www.omggum.com or any other Sites managed under this brand (these “Sites”) are owned and operated by BuChew, LLC (“Company”). Use of these Sites, and any purchases made through these Sites, are governed by the Terms and Conditions, use and purchase described below (“Terms”). Your use of the Sites constitutes your agreement to be bound by the Terms.
You must be at least 18 years old to purchase products from these Sites. Company reserves the right to revise the Terms as needed. We encourage you to periodically review Terms for any changes. By using these Sites, you accept and agree to Company’s right to revise the Terms as needed and to be bound by such changes, so long as they are promptly posted on the Sites or emailed to the email account we have on record for you. If you do not wish to be bound to these Terms (or any revisions to these Terms), please do not use these Sites or purchase any products through these Sites.
SHIPPING POLICY – Product will ship within 24 to 48 hours after your card is processed and should be received within 7-10 business days from the date of the transaction.
REFUND/RETURN POLICY – We offer a 30-day Money-Back guarantee. If for whatever reason you are not completely satisfied you can return your order within 30 days from the ship date and you will receive a full refund of the purchase price, less shipping and handling.
Your use of these Sites for any illegal or unauthorized purpose is expressly prohibited.
You represent and agree to: (a) provide true, accurate, current and complete information about yourself when creating an account and password with the Sites (“Account”) and (b) maintain and promptly update your Account to keep it true, accurate, current and complete. If you provide, or Company has reasonable grounds to suspect that you have provided information that is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future access to these Sites (or any portion thereof).
You are solely responsible for maintaining the confidentiality of your Account. Including all activities occurring under your Account and all access to, and use of the Sites by anyone using your Account, whether or not such activities and access are actually authorized by you, including but not limited to all communications, transactions and obligations. Company shall not be liable or responsible for any loss or damage arising from any unauthorized use, access or any other breach of security of your Account, including but not limited to your member sign-in password and email address. You acknowledge and accept that your use of the Sites is in compliance with these Terms. You further acknowledge and accept that Company shall have no obligation to investigate the authorization or source of any Account activity, including purchase activity following a proper log-in to the Sites, which is defined as a matching and current member sign-in and user password. You shall notify Company immediately of any unauthorized access to your Account or any other unauthorized use of the Sites.
You agree that Company may, without prior notice, immediately terminate, limit your access to or suspend your Account based on any of the following: (a) breach or violation of these Terms; (b) upon request by law enforcement; (c) unforeseeable technical or security issues or problems; (d) extended periods of inactivity; and/or (e) fraudulent or illegal activity, or any other activity which Company believes is harmful to these Sites or its business interests. You agree that all terminations, limitations of access and/or suspensions shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination, limitation on access to, or suspension of your Account.
Company reserves the right at any time to occasionally modify or discontinue, temporarily or permanently, the Sites (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites (or any part thereof). The following sections shall survive any termination of these Terms: “Copyright Infringement Notice and Procedure,” “Indemnification,” “Disclaimer of Warranties; Limitation of Liability,” “Disputes and Dispute Resolution” (including all subsections) and “General”.
You acknowledge, consent and agree that Company may access your Account for any reason in its sole and absolute discretion. You further acknowledge, consent and agree that Company may disclose your Account (and its contents) if required to do so by law or if it has a good faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims; and/or (iv) protect the rights, property or personal safety of Company, its users and/or the public.
The Sites may provide links to other websites. You acknowledge and agree that Company is not responsible for the availability of such external websites, and does not endorse and is not responsible or liable for any content, advertising, products and/or other materials on or available from such websites. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites.
Prices, descriptions and availability of products on these Sites are subject to change without notice. Errors may be corrected when discovered, and Company reserves the right to revoke any stated offer in order to correct any errors or inaccuracies.
USER POSTED CONTENT: LICENSE OF CONTENT POSTED ON OUR SITES
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. You, and not Company, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available on the Sites.
You acknowledge that Company may or may not pre-screen Content, and that Company shall have the right in its sole discretion and for any reason to pre-screen, refuse, or remove any Content that is available on the Sites. You agree that you alone must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge consent, and agree that Company may access and/or disclose your Content for any reason in its sole and absolute discretion.
By submitting, posting or displaying Content on the Sites, you grant Company, its parent, and affiliates the perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use, copy, display, reproduce, publish and distribute such Content in any form of media.
You acknowledge and agree that Company owns all right, title and interest in and to the Sites. You agree that all of Company’s trademarks, trade names and other Company logos, brand features, and product names are trademarks and the property of Company (“Company Marks”). You agree not to display or use in any manner Company Marks without Company’s prior written approval.
USER OBLIGATIONS AND OTHER RESPONSIBILITIES
You agree not to engage in the following activities: (a) upload, post, email, transmit or otherwise make available any Content that is fraudulent, deceptive, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or is otherwise objectionable; (b) impersonate any person, business or entity, including, but not limited to, Company and its employees or agents; (c) victimize, harass, degrade, intimidate, or “stalk” an individual or group of individuals whether on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability or otherwise; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content; (e) upload, post, email, transmit or otherwise make available: (i) any Content that you do not have a right to make available under any law or contract, (ii) any Content that infringes any intellectual property or proprietary rights of any third party, including but not limited to, patent, trademark, trade secret, copyright, and/or publicity rights, or (iii) any material that contains software viruses or any other computer codes, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (f) interfere with or disrupt the Sites or servers or networks connected to the Sites, or interfere with any other party’s use and enjoyment of the Sites; (g) gain or attempt to gain unauthorized access to the Sites, Accounts, computer systems or networks via hacking, password mining or any other means; (h) transmit, directly or indirectly, any unsolicited bulk communications, including emails and instant messages; (i) violate any applicable local, state, or federal laws, rules and/or regulations; or (j) violate these Terms or any policy posted on the Sites.
You also agree to not engage in or attempt to engage in the following activities: (a) market, promote, advertise, sell or offer for sale any business, product or service through the Sites or to users on the Sites, or (b) post, transmit, store or otherwise publish Content, links or any other material on the Sites that directly or indirectly markets, promotes, advertises, sells or offers for sale third party products or services, without the express written consent of the company.
The Company grants you a revocable, non-exclusive, non-transferable, limited right to access and use the Service on the mobile telephone device registered for the Service solely for your own personal, non-commercial use and strictly in accordance with these terms and conditions. You agree that you shall not reproduce, modify, perform, transfer, distribute, sell and/or create derivative works or otherwise use or make available the Service and/or any Content published through the Service except as expressly set forth herein. Company shall own all Content related to the Service at all times. “Content” shall mean, without limitation, content, messages, updates, data, information, Company trademarks, logos, marks, brands, trade names and all other Company intellectual property and proprietary information, materials and elements of Company services and products. Company shall have no obligation or liability to restore any Content you may have obtained through the Service if it is damaged or lost.
Company reserves the right to suspend provision of the Service at any time for any reason whatsoever without liability and without notice.
REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) the mobile telephone number you provide to Company in connection with the Service is owned by you, registered in your name and does not otherwise infringe upon or violate any third party rights, (ii) you may legally enter into and be bound by these terms and conditions; and (iii) by accessing and using the Service, you are otherwise not in violation of any applicable laws, rules and/or regulations.
When accessing and using the Service you represent and warrant that you shall: (i) observe and abide by all traffic laws, including but not limited to laws related to texting while driving; (ii) not use the Service for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with these terms and conditions; and (iii) ensure all wireless devices and cables necessary for use of the Service in a secure manner in your vehicle so that they will not interfere with your driving.
THIRD PARTY ADS
You may see messages on our Service advertising the services of third parties. We do not endorse or take any responsibility whatsoever for the content, actions of or services offered by such third parties.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOUR USE OF THE SITES AND SERVICE IS AT YOUR SOLE RISK. THE SITES, SERVICE AND THE PRODUCTS OFFERED ON OR AVAILABLE THROUGH THE SITES AND/OR THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND ON YOUR USE OF THE SITES, SERVICE OR ANY PRODUCTS PURCHASED THROUGH THE SITES AND/OR SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SITES AND/OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR FREE FROM ERROR OR THAT ANY ERRORS WILL BE CORRECTED.
COMPANY DOES NOT CONTROL THE CONTENT POSTED BY USERS AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CONTENT. YOU UNDERSTAND THAT BY ACCESSING THE SITES AND/OR SERVICE, YOU MAY BE EXPOSED TO CONTENT THAT YOU MAY FIND OFFENSIVE, INDECENT OR OBJECTIONABLE. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE AND/OR VIEWING OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON THE SITES AND/OR SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), BASED UPON, ARISING FROM OR RELATED TO: (A) THE USE OR THE INABILITY TO USE THE SITES AND/OR SERVICE; (B) UNAUTHORIZED ACCESS TO, DELETION, CORRUPTION OR ALTERATION OF YOUR CONTENT OR ACCOUNT; (C) YOUR FAILURE TO KEEP YOUR ACCOUNT SECURE AND CONFIDENTIAL; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES OR SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SITES AND/OR SERVICE.
CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
COPYRIGHT INFRINGEMENT NOTICE AND PROCEDURE
Company respects the intellectual property of others, and we ask our users to do the same. Company may, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the following information:
(1) a description of the copyrighted work that you believe has been infringed upon and a description of the infringing activity;
(2) a description of the location of the material that you believe is infringing;
(3) your contact information, including address, telephone number and email address;
(4) 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;
(5) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner;
(6) a physical or electronic signature by you; and
(7) send the written notice to the following address:
2023 Trentham Rd.
Westlake Village, CA 91361
OR email to: email@example.com
DISPUTES AND DISPUTE RESOLUTION
Use of these Sites, your Account, any purchases made through these Sites, and any controversy, claim or dispute arising out of or relating in any way to your use of the Sites, your Account, or products purchased through the Sites shall be governed by the laws of the your home state of residence without respect to its choice (or conflict) of laws rules.
Both you and Company waive the right to bring any controversy, claim or dispute arising out of or relating in any way to your use of the Sites, your Account, or products purchased through the Sites as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as “the class action waiver.”)
Jurisdiction and venue for any dispute shall be in Ventura, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
AGREEMENT TO PRE-ARBITRATION NOTIFICATION
These Terms provide for final, binding arbitration of all disputed claims (discussed immediately below). Company and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings are initiated. In the event of a dispute, the claimant” whether you or Company” shall send a letter to the other side briefly summarizing the claim and the request for relief. If Company is the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to firstname.lastname@example.org. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings.
AGREEMENT TO ARBITRATE CLAIMS
Any controversy, claim or dispute arising out of or relating in any way to your use of the Sites, your Account, or products purchased through the Sites shall be resolved by final and binding arbitration.
The arbitration shall take place in Ventura, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require you to pay a filing fee (which currently is $125 for claims under $10,000). If the arbitrator ultimately rules in your favor, Company will also reimburse you for the $125 base fee.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then Company will pay you the amount of the award or $500, whichever is greater (in addition to reimbursing you for the base fee).
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim.
The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding.
Both you and Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
OPTING-OUT OF DISPUTE RESOLUTION PROCEDURE AND CLASS ACTION WAIVER
You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in these Terms by doing the following. Within 15 days of the earlier of first setting up your Account or making your first purchase, you must send a letter to email@example.com that specifies (1) your name, (2) your account number or account member name, (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms. All other Terms shall continue to apply to your Account, including the requirement to participate in pre-dispute mediation. Notwithstanding any provision in these Terms to the contrary, Company agrees that if Company makes any future change to the dispute resolution procedure and class action waiver provisions (other than a change to Company’s address), you may reject any such change (but only that change) by sending a letter to Company (to the address provided above) within 15 days of Company providing notice of the change.
Your letter must be postmarked by the applicable 15-day deadline to be effective. You are not required to send the letter by confirmed mail or return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the applicable 15-day deadline.
These Terms constitute the entire agreement between you and Company and governs your use of the Sites and supersedes any prior version of these Terms between you and Company with respect to the Sites.
The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver or relinquishment to any extent of Company’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. If any provision of these Terms is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid, the parties nevertheless agree that the remaining provisions shall not be affected thereby and shall continue in full force and effect, and such provision may be modified or severed from these Terms to the extent necessary to make such provision enforceable and consistent with the remainder of these Terms.
Except where otherwise specified, Company may deliver notice to you by means of electronic mail, a general notice on the Sites or by other reliable method.