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These Terms of Website (“Terms” or “Terms of Website”) govern your use of the Simple Mills website, and with respect to User Generated Content only, third-party social-networking services such as Instagram and Facebook (the "Website"). Throughout the site, the terms “we”, “us” and “our” refer to Simple Mills.
1. ACCEPTANCE OF TERMS
By using our Website, accessing the website, and/or purchasing something from us, you agree to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. Any new features or tools which are added to the website shall also be subject to the Terms of Website. These Terms apply to all users of the Website, including without limitation users who are browsers, customers, merchants, and/or contributors of content. If you do not agree to all the terms and conditions of these Terms, then you may not access the Website. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
2. GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
By agreeing to these Terms of Website, you represent that you are over 13 years old and at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You represent and warrant that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changed to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
3. SIMPLE MILLS ACCOUNT
You may be required to create a personal or wholesale account to access some of the features of the website. You must keep your password confidential and you are solely responsible for maintaining the confidentiality and security of your account, all changes and updates submitted through your account, and all activities that occur in connection with your account. In creating an account, you represent to us that all information you provide in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below and to change your password. You may not transfer your account to anyone else without our prior written permission.
4. PLACING AN ORDER ON THE WEBSITE
Order Acceptance and Billing
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors who are not authorized sellers.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For website purchases, by confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s).
For wholesale orders and business orders, orders will be deemed to have been placed when an email confirmation has been received from a responsible executive of the company.
For email invitations, online fulfilment projects and direct marketing files (as provided by Simple Mills) it is a requirement of the Company, that the email piece, online form or mail piece shall be approved by the company before an order can be confirmed and any data dispatched.
Terms and conditions on third-party business order forms or other similar documents shall not be binding on Simple Mills.
Prices for our products are subject to change without notice, and we cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Website. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Simple Mills. Simple Mills may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products on the Website may differ from pricing for product sold in stores.
60-Day Satisfaction Guarantee
At Simple Mills, Inc., we stand behind our products and quality controls. If for any reason you are not satisfied with a Simple Mills product you purchased from one of our authorized sellers, you may request a refund or replacement product. Please note that because we are unable to control the quality of our products sold by unauthorized sellers, the Simple Mills, Inc. 60-Day Satisfaction Guarantee is not available for products purchased from unauthorized sellers. The Guarantee is also limited to the original, end-user purchaser.
To submit a Guarantee request, please call one of our experts at (312) 410-8414 or email us at [email protected] and have information available regarding where and when you purchased your product. If your request is approved, you will then need to mail your proof of purchase and your Guarantee approval confirmation number to:
435 North LaSalle Street, 2nd Floor Chicago, IL 60654
You must submit your Guarantee request within 60 days of the date of purchase. Please note that you are responsible for costs incurred in mailing your proof of purchase.
Simple Mills, Inc. reserves the right to verify information, require a valid proof of purchase, and to deny Guarantee requests in its discretion in cases of suspected fraud or if customer has abused the Simple Mills, Inc. 60-Day Satisfaction Guarantee.
5. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
Simple Mills does not warrant that information made available on the Website is accurate, complete, reliable, error-free or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
6. MODIFICATIONS TO THE WEBSITE, PRODUCTS AND PRICES
We reserve the right at any time to modify or discontinue the Website (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, price change for a product, suspension or discontinuance of the Website.
7. PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy and, where applicable, our 60-Day Satisfaction Guarantee.
We reserve the right to limit the quantities and sales of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
8. INTELLECTUAL PROPERTY RIGHTS
All content on the Website (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation) (the “Content”), is owned by Simple Mills, other content providers, or their licensors, and may be protected by copyright, trademark, and other applicable laws.
Your access to and use of the Website does not grant you any license or right to use any trademark, logo, or service mark displayed on the Website. Simple Mills, other content providers, or their licensors retain full and complete title to and reserve all rights in the material on the Website, including all associated intellectual property rights. Simple Mills neither warrants nor represents that your use of materials on the Website will not infringe rights of third parties.
You may access the Website only for your personal and non-commercial use, and you may not modify or delete any copyright, trademark or other proprietary notice relating to the material you access.
All software used on the Website is the property of Simple Mills or our licensors and protected by United States and international copyright laws. Subject to these Terms, Simple Mills hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license to use the Website for your personal, noncommercial use only. This license does not include any: (i) resale or commercial use of the Website; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Website; (iv) any downloading or copying of account information for the benefit of another merchant; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Website, in whole or in part. Downloading or copying the Website (including the Content) for other than personal use is expressly prohibited without the prior written permission of Website or any other copyright owner. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Website (which includes the Content), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Website or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of Simple Mills.
Without Simple Mills’ prior permission, you agree not to display or use in any manner the Simple Mills marks.
All rights not expressly granted herein are reserved. You agree to abide by all additional restrictions displayed on the Website as they may be updated from time to time.
9. RESALE OF SIMPLE MILLS PRODUCTS
We allow anyone purchasing Simple Mills wholesale to sell our products in their own brick & mortar stores, or on their own branded website. However, we do not allow the re-sale of any Simple Mills products via 3rd party sellers, whether brick & mortar or online. That includes Amazon, eBay, or other popular eCommerce platforms. Simple Mills shall be the only company allowed to sell our products via 3rd party sites. Simple Mills, in its sole discretion, may terminate the wholesaler account of anyone found to be in violation of this policy.
Aside from the permission provided above, you agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Website, use of the Website, or access to the Website or any contact on the website through which the Website is provided, without express written permission by us.
10. RESTRICTIONS ON ACCESS AND USE
You agree to use the Website only in a manner that complies with these Terms, applicable policies, and all laws that apply to you. If your use of the Website (including a purchase of any items on the Website) is prohibited by any applicable laws, then you aren't authorized to use the Website. We are not responsible if you use the Website in a way that violates applicable laws.
You must not create multiple accounts and you must not let others use your account. You are responsible for any activity associated with your account.
When accessing or using the Website, you agree to:
Abide by all laws, rules, regulations, these Terms, and all Simple Mills policies;
Only use (or attempt to use) the Website through interfaces provided by Simple Mills; and
Comply with the instructions in any robots.txt file present on the Website.
When accessing or using the Website, you agree not to:
use the Website or any of our products for any unlawful or unauthorized purpose;
solicit others to perform or participate in any unlawful acts;
violate any federal or state regulations, rules, laws, or local ordinances;
infringe upon or violate our intellectual property rights or the intellectual property rights of others;
harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
submit false or misleading information;
submit objectionable content, including profanity, obscenity, lasciviousness, or violence;
upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or of any related website, other websites, or the Internet;
collect or track the personal information of others;
spam, phish, pharm, pretext, spider, crawl, or scrape;
use the Website for any obscene or immoral purpose; or
interfere with or circumvent the security features of the Website or any related website, other websites, or the Internet.
We reserve the right to terminate your use of the Website or any related website or service for violating any of the prohibited uses or these Terms.
11. OPTIONAL TOOLS
We may provide you with access to third party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
12. THIRD-PARTY LINKS
Certain content, products and services available via our Website may include materials from third parties. In addition, third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party materials or websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
13. USER COMMENTS, FEEDBACK, USER GENERATED CONTENT AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send, submit, upload or otherwise make available creative ideas, suggestions, proposals, plans, product or recipe reviews, images, audio, video, or other materials and content, whether online (including through or to a third-party site or social media channel), by email, by postal mail, or otherwise (collectively, “User Generated Content”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay compensation for any User Generated; or (3) to respond to any User Generated Content.
If you submit User Generated Content, you represent and warrant that you have the right to provide such content, and agreed to indemnify Simple Mills for all loss arising out of or relating to such User Generated Content.
All User Generated Content, including without limitation, comments, suggestions, ideas, notes, concepts, recipes or other information disclosed or submitted to us by you through this Website or on any social media channel (“Feedback”) shall be and shall remain our property, and we retain unrestricted use, commercial or otherwise to such Feedback, without compensation to the provider of the Feedback. You understand and acknowledge that we may have developed or may in the future develop ideas or other items similar or identical to the Feedback, and that no Feedback is never provided under an obligation of confidentiality or any other conditions, other than the terms set forth herein.
We may, but have no obligation to, monitor, edit or remove User Generated Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms. You agree that your User Generated Content will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your User Generated Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Website or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any User Generated Content. You are solely responsible for any User Generated Content you provide or make available and their accuracy. We take no responsibility and assume no liability for any User Generated Content posted by you or any third party. For any User Generated Content posted on third-party social media sites, you represent and warrant that you do and will abide by the terms on such social media platform.
14. COPYRIGHT INFRINGEMENT
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Platform infringe your copyright, you may request removal of those materials (or access thereto) from the Platform by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
Your physical or electronic signature;
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Websites, a representative list of such works;
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
A statement that the information in the written notice is accurate; and
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notices is:
Copyright Agent: General Counsel
Phone: (312) 410-8414
Email: [email protected]
It is our policy, in appropriate circumstances, to disable and/or terminate the accounts of users who are repeat infringers.
15. PERSONAL INFORMATION
Simple Mills may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
Simple Mills may route phone and text communications through a third-party service provider, and we or the service provider may record telephone conversations you have with Simple Mills or its agents for quality control and training purposes, or for our own protection.
17. ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Website that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Website or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Website or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Website or on any related website, should be taken to indicate that all information in the Website or on any related website has been modified or updated.
18. DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
WE DO NOT WARRANT THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICE, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
19. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE SHALL SIMPLE MILLS, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICE OR ANY PRODUCTS PROCURED USING THE SERVICE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT SIMPLE MILLS IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO SIMPLE MILLS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF SIMPLE MILLS FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY SIMPLE MILLS’S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY SIMPLE MILLS’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIMPLE MILLS AND YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT'S "ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS." SIMILARLY, THIS SECTION DOES NOT LIMIT SIMPLE MILLS’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM SIMPLE MILLS’S OWN INTENTIONAL OR RECKLESS CONDUCT.
To the fullest extent allowed by applicable law, you agree to indemnify, defend and hold harmless Simple Mills and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or (c) your violation of any law or the rights of a third-party. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Simple Mills reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Simple Mills in asserting any available defenses. This provision does not require you to indemnify Simple Mills for any unconscionable commercial practice by Simple Mills or for Simple Mills' negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Website, including the purchase of any items on the Website.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Simple Mills and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Website, or when you cease using our Website. We are also free to terminate (or suspend access to) your use of the Website or your account, for any reason in our discretion, including your breach of these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Even after your right to use the Website is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Simple Mills for items purchased will remain due.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding arbitration and class action waiver.
22. NO THIRD PARTY BENEFICIARIES
These Terms are not enforceable by or for the benefit of any third party.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH SIMPLE MILLS AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND SIMPLE MILLS AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICE, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, AS DETAILED BELOW.
You and Simple Mills agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and Simple Mills against each other related in any way to or arising out of in any way from the Website or the Content including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and Simple Mills, even if the claim arises after you or Simple Mills has terminated use of Website or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that Simple Mills brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and Simple Mills, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with Simple Mills; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. “Disputes” does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, claims of piracy or unauthorized use of intellectual property (collectively, “intellectual property claims”).
b. Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. You can reach our support department at [email protected] Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
c. Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside. For residents outside the United States, arbitration shall be initiated in Chicago, Illinois. Simple Mills and you further agree to submit to the personal jurisdiction of any state or federal court in Chicago, Illinois to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
To begin an arbitration proceeding, you must write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover and mail via U.S. certified mail, return receipt requested to Simple Mills at 435 North LaSalle Street, 2nd Floor Chicago, IL 60654.
The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Simple Mills will pay the additional cost. Simple Mills shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney's fees and expert witness costs unless Simple Mills is specifically required to pay such fees under applicable law.
If Simple Mills' or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or Simple Mills may choose to pursue a claim in small claims court where: (a) jurisdiction and venue over you and Simple Mills otherwise qualifies for such small claims court; (b) such claim advances only on an individual (e.g. non-class, non-representative) basis; and (c) where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to provide Simple Mills with advance notice by email to [email protected] and by mail to Simple Mills, 435 North LaSalle Street, 2nd Floor Chicago, IL 60654.
These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against Simple Mills on your behalf.
d. Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable or whether any claims are not subject to Arbitration. The arbitrator will decide the rights and liabilities, if any, of you and Simple Mills. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
e. Waiver of Jury Trial
YOU AND SIMPLE MILLS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Simple Mills are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
f. 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out. Your notice must be sent via email to [email protected] and to: Simple Mills, 435 North LaSalle Street, 2nd Floor Chicago, IL 60654 within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), your signature, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
g. Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Simple Mills, or any employee, officer, director, or investor of Simple Mills, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Website, any person's access to and/or use of the Website, and/or the provision of content, products, services, and/or technology on or through the Website.
h. Changes to this Section
Simple Mills will provide thirty (30) days’ notice of any changes to this section by posting on the Website, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Website.
Subject to the section titled "Waiver of Class or Consolidated Actions," if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
j. Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Simple Mills.
24. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Simple Mills and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Simple Mills and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Simple Mills users, and cannot be used to decide other disputes with other users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Chicago, Illinois.
If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Simple Mills, or any employee, officer, director, or investor of Simple Mills, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Website.
25. ADDITIONAL TERMS
Electronic Communications. You agree to receive communications from Simple Mills electronically, such as emails, texts, mobile push notices, or notices and message on the Website, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Simple Mills provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Website account, in any way (by operation of law or otherwise) without Simple Mills’ prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Force Majeure. Simple Mills shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Choice of Law. These Terms and any dispute of any sort that might arise between you and Simple Mills will be interpreted in accordance with the law of the State of Illinois and the United States of America, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute that between you and Simple Mills that arises out of or is related to the Website and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Chicago, Illinois, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Chicago, Illinois.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Website must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Notice. Where Simple Mills requires that you provide an email address, you are responsible for providing Simple Mills with your most current email address. In the event that the last e-mail address you provided to Simple Mills is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Simple Mills’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Simple Mills at the following address: Simple Mills, Inc., 435 North LaSalle Street, 2nd Floor Chicago, IL 60654. Such notice shall be deemed given when received by Simple Mills by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Entire Agreement. These Terms and any policies or operating rules posted by us through the Website constitute the entire agreement and understanding between you and us and govern your use of the Website, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Website). These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
Waiver. The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
Severability. In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
Interpretation. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
Section Titles. The headings used in the Terms are included for convenience only and will not limit or otherwise affect these Terms.
26. CHANGES TO TERMS OF SERVICE
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms. The most current version of the Terms will be posted on the Website and it is your responsibility to check our website periodically for changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Website or via email. Your continued use of the Website following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Website.
27. CONTACT INFORMATION
If you have any questions or concerns with respect to these Terms or the Website, or to report any violations of these Terms, please contact us at [email protected]