Terms and Conditions
Effective Date: June 1, 2020
SECTION 24 BELOW ENTITLED "BINDING INDIVIDUAL ARBITRATION" CONTAINS A MANDATORY ARBITRATION PROVISION. IT AFFECTS HOW DISPUTES WITH COTTAGE ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
The following terms of service (the "TOS") are a legal agreement between you ("you," "your") and Cottage Tech, LLC (collectively referred to herein as "Cottage", "us", "our" or "we") and govern your use of Cottage’s services, including our website located at https://www.cottage.menu (our "Website"), mobile apps, software, other online areas owned or operated by us, and other products and services provided by us (collectively, the "Services"). By accessing and/or using any of the Services and/or Website you agree to these TOS, the Privacy Policy and any policies referenced within ("Policies"), including terms that limit our liability (see Section 20) and require individual arbitration for any potential legal dispute (see Section 24). You also agree to any additional terms applicable to specific to Services and/or features that are a part of, or may be from time to time, made a part of, our Services (collectively, the "Additional Terms"). Subject to applicable law, the Additional Terms and Policies are a part of these TOS and are expressly incorporated herein by this reference. If you do not agree to any of these TOS, you must cease use of the Website or the Services.
1. PRIVACY
You agree to Cottage's Privacy Policy, which explains how we collect, use, and protect the personal information you provide to us.
2. COTTAGE ACCOUNT REGISTRATION
You must open an account with us (a "Cottage Account") to use the Services. During registration we will ask you for information, including your name, email and other personal information. You must provide accurate and complete information in response to our questions and keep that information current. In order to create your Cottage Account you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your Cottage Account. We reserve the right to suspend or terminate the Cottage Account of any user who provides inaccurate, untrue, or incomplete information, fails to comply with the account registration requirements. We reserve the right to suspend or terminate any Cottage Account whose activity appears to be fraudulent or unusual.
3. REVISIONS, DISCLOSURES AND NOTICES
We may amend the TOS or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a "Revised Version"). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of our Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 23) that arose before the changes will be governed by the TOS or Policies in place when the Dispute arose.
4. COTTAGE SERVICES
Cottage provides advertising and marketing services to independently operated food producers ("Food Producers") on our Website and through our Services. Cottage is not the retailer of any products offered by Food Producers.
The Food Producers are solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparing, sale of, marketing, and packaging all products ordered through Cottage, and updating their menu and menu prices. Each Food Producer is solely liable for the quality, safety, and freshness of its products, and Cottage does not verify the credentials, representations, products, services or prices offered by the Food Producers, and does not guarantee the quality of the product or services, or that any Food Producer or Food Producer product service complies with applicable laws. Cottage will not be liable or responsible for any products or services provided by Food Producers that are a cause of injury or that are unacceptable to or do not meet your expectations in any manner.
Independent contractors (each a "courier") have entered into agreements with Food Producers to provide delivery services. Cottage does not offer such delivery services, and has no responsibility or liability for any courier. Cottage will not be liable or responsible for any delivery services provided by couriers or any errors or misrepresentations made by them.
You are solely responsible for verifying the accuracy of your delivery address, and Cottage will have no liability or responsibility for any such erroneous addresses.
5. ACCOUNT ACCESS
By agreeing to these TOS, you represent and warrant to us: (a) that you are at least eighteen (18) years old; (b) that you have not previously been suspended or removed from the Service; (c) you are eligible to register and use the Services and have the right, power and ability to enter into and perform under these TOS; and (d) you will not use the Services, directly or indirectly for any fraudulent undertakings in any manner and your use of the Services will be in compliance with these TOS and applicable Additional Terms. If you are using the Service on behalf of an entity, organization or company, you represent and warrant that you have authority to bind the organization to these TOS and you agree to be bound by these TOS on behalf of that organization.
6. TRANSACTIONS INVOLVING ALCOHOLIC BEVERAGES
Cottage does not sell alcohol beverages. Cottage is a marketing and technology company that provides services to Food Producers or other establishments that may hold alcohol beverage licenses (hereinafter, "Alcoholic Beverage Suppliers"). Cottage acts as a third party provider and has no responsibility or liability to you for any alcoholic beverage products you purchase from Alcoholic Beverage Suppliers. Any claims or disputes you have regarding Alcoholic Beverage Supplier products will be the responsibility of the Alcoholic Beverage Supplier and must be brought by you directly to the Alcoholic Beverage Supplier.
If you wish to purchase alcoholic beverages from Alcoholic Beverage Suppliers, you must be at least twenty-one (21) years old ("Legal Age"), provide age verification, and consent to having such verification shared with the Alcoholic Beverage Suppliers.
By placing an order for alcoholic beverages, you expressly represent and warrant that:
You are of Legal Age;
You will provide bona fide government-issued photo identification showing your Legal Age upon delivery or pickup;
You are purchasing alcoholic beverages for personal consumption and not for resale or any other commercial purpose; and
You are not procuring alcohol from Alcoholic Beverage Suppliers for person(s) under the Legal Age.
Cottage reserves the right to report any actions by you that would violate alcohol beverage laws, including but not limited to misrepresentation of age and procuring alcoholic beverages for person(s) under age 21, to law enforcement authorities.
Cottage does not charge any additional fee with respect to alcoholic beverages or your purchase of alcoholic beverages from Alcoholic Beverage Suppliers. When you place an order for alcoholic beverages using the Services ("Alcoholic Beverage Order"), such Alcoholic Beverage Order will be either accepted or rejected by the Alcoholic Beverage Supplier to whom the Alcoholic Beverage Order was placed. Neither Cottage nor any courier has any authority to accept your Alcoholic Beverage Order, and no sale pursuant to your Alcoholic Beverage Order will become final unless and until Alcoholic Beverage Supplier accepts your Alcoholic Beverage Order.
For any Alcoholic Beverage Order accepted by an Alcoholic Beverage Supplier (such accepted sale an "Alcoholic Beverage Purchase"), your credit card will be charged, and that portion of the funds from your credit card payment that relates to the Alcoholic Beverage Purchase will be deposited into an account for the benefit of Alcoholic Beverage Supplier in compliance with applicable alcoholic beverage laws.
7. LIMITATIONS ON USE AND RULES OF CONDUCT
By using the Website and Services, you agree not to:
use any information obtained from the Website or the Services in order to contact, advertise to, solicit, or sell to any user or food producer;
upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another's privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
stalk, harass, threaten or harm another;
pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another subscriber, a Cottage employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity (including creation of additional accounts after termination by us for violation of the TOS);
engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;
forge any TCP-IP packet header or any part of the header information in an email or a news group posting, or otherwise putting information in a header designed to mislead recipients as to the origin of any Content transmitted through the Service ("spoofing");
upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
access or monitor any material or information on any Cottage system using any manual process or robot, spider, scraper or other automated means;
perform or attempt to perform any actions that would interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon); plan or engage in any illegal activity; and/or gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities.
We cannot and do not assure that other users are or will be complying with the foregoing limitations on use and rules of conduct or any other provisions of these TOS, and, as between you and us, you assume all risk of harm or injury resulting from any such lack of compliance.
Violations of any of these TOS may result in termination of your account. We reserve the right to modify these limitations on use and rules of conduct in accordance with Section 3.
8. CONTENT AND SUBMISSIONS
With the exception of Submission (defined below) all information, materials, functions and other content ("Content") contained on the Services are owned by or licensed to Cottage and are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, slogans, service marks, trade names, logos, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Services or delete Content or features at any time, in any way, for any reason.
Except as we specifically agree in writing, no Content from the Services may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Services, not even as part of a derivative work. Using our Content for any other purpose, including but not limited to "re-mailing" or high-volume or automated use of the Services or using any of our Content on any other website or networked computer environment, is a violation of our copyright and other proprietary rights and is strictly prohibited.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TOS WILL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE SERVICES OR CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED ON THE CONTENT.
In these TOS, we use the word "Submissions" to mean text, messages, ideas, concepts, pitches, suggestions, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, characterizations, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, "Distribute") on or through the Services.
You agree that any Submissions you make is not being made in confidence or trust and may not be private communications and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type. Accordingly, we, our licensees, distributors, agents, representatives and other authorized users will be entitled to use and disclose all Submissions, and we will not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.
We may provide you an area, site or feature as part of any Services that offers the opportunity for users to Distribute Submissions for viewing by one or more Services' users, including a chat area, message board or social community environment ("Public Forum"). We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.
Subject to applicable law, you are and will remain solely responsible for the Submissions you Distribute on or through any Services under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same.
We reserve the right to screen, refuse to post, remove, modify, edit, store and/or review Submissions at any time and from time to time and for any or no reason including, without limitation, to ensure that the Submissions conforms to the rules of conduct, in our absolute and sole discretion without prior notice.
You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable, and that you may expose others to Content that they may find objectionable. Cottage is not responsible or liable for nor do we endorse in any way any Content provided by others and has no duty to pre-screen such Content.
9. LICENSES AND REPRESENTATIONS
You grant us and our licensees, distributors, agents, representatives and other authorized users, a non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license for an indeterminate period (or for such maximum period permitted by applicable law) under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual and industrial property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Site, on third party websites, on our broadband and wireless platforms, products and services, on physical media) for any and all purposes including, without limitation, entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "Submissions License").
By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to these TOS and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these terms of use (including the Submissions License).
To the extent that we solicit Submissions through features or activities on or through the Services (including games, sweepstakes, contests, promotions, and Public Forums that require the use of our copyrighted works (in whole or in part)), we grant you a non-exclusive license to create a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions); provided that such license will be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) will be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by us.
10. REFERRAL PROGRAMS
From time to time, we may offer referral programs or incentives for inviting others to use the Service (a "Referral Program"). Any credits or incentives under such Referral Program will be subject to the then current Referral Program terms and at our sole discretion, which can be found here.
11. ADDITIONAL OBLIGATIONS OR TERMS OF USE
Particular components or features of our Service, provided by us and/or our licensors, may be subject to separate software or other license agreements or terms of use. You must read, accept, and agree to be bound by any such separate agreement as a condition of using these particular components or features of the Service. Cottage is not responsible for the performance of any third party services.
Payment processing services for producers on Cottage are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a producers on Cottage, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Cottage enabling payment processing services through Stripe, you agree to provide Cottage accurate and complete information about you and your business, and you authorize Cottage to share it and transaction information related to your use of the payment processing services provided by Stripe.
12. COMMUNICATIONS
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, reminders, and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You may also opt-out of text messages from Cottage at any time by texting STOP to the number in your transactional text message. You acknowledge that opting out of receiving communications may impact your use of the Services.
13. FEES
You agree to pay all charges, including gratuities, fees and taxes, and any part thereof, when you purchase, use, or participate in a Service from Cottage. All fees are exclusive of applicable taxes, unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the services provided to you. Cottage may change the fees for the Service at any time. Cancellations are subject to our cancellation policy, posted here.
14. CREDIT CARD OR OTHER PAYMENT SERVICE AUTHORIZATION
You may be asked to provide us with a credit card number from a card issuer or other payment information that we accept in order to activate and/or pay for any fees related to the Service. We may seek pre-authorization of your credit card or other payment information prior to a purchase to verify that the credit card or payment information is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
15. SUBSCRIPTIONS AND RECURRING CHARGES
Some Food Producers using the Cottage service provide subscriptions, in which the Food Producer provides a certain amount of food or meals on a recurring basis in exchange for an automated, recurring payment by you. You agree that any charges marked as subscriptions are recurring and that your credit card or other method of payment will continue to be automatically charged until you cancel using the Cottage website. You further agree that the subscription agreement is between you and the Food Producer and that Cottage is not responsible for ensuring that the Food Producer is delivering the agreed upon types or quantity of meals, or their equivalent. You agree that any disagreement regarding the value or commitment of the subscription will be resolved between you and the Food Producer.
16. TERMINATION
You may terminate your account and/or stop using the Service at any time. To terminate your account contact us using the Contact section of our website. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOS). Termination of your account will not relieve you of any obligation to pay any accrued fees or charges. We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Any such termination or suspension will be made by us in our sole discretion, without any refund to you of any prepaid fees or amounts, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
17. EFFECT OF TERMINATION
Upon termination of your account you lose all access to the Service and any portions thereof, including, but not limited to, your Cottage Account. In addition, Cottage may delete all information and data stored in or as a part of your account(s) including, but not limited to, data files, email, preferences and Submissions. Any individual components of the Service that you may have used subject to separate agreement will also be terminated in accordance with such separate license.
18. LINKS
Certain Content, components or features of the Service may include materials from third parties and/or hyperlinks to other websites, resources or Content. Because Cottage may have no control over such third party sites and/or materials, Cottage is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy of any such sites or resources, and will in no way be liable or responsible for any Content, advertising, products or materials on or available from such sites or resources. You further acknowledge and agree that Cottage will not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Content, advertising, products or materials on or available from such sites or resources.
19. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COTTAGE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, COTTAGE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE VOUCHERS OR OTHER ITEMS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COTTAGE OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
20. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COTTAGE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF COTTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL COTTAGE’S LIABILITY IN CONNECTION WITH ANY SERVICE, INCLUDING ANY VOUCHER, EXCEED THE AMOUNT PAID FOR ANY SUCH SERVICE BY YOU.
21. INDEMNITY
You will defend, indemnify and hold Cottage, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from and against any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your violation of any third-party right, including without limitation any right to privacy, publicity rights or Intellectual Property Rights, including Submissions you Distribute through the Services; (b) your wrongful or improper use of the Services; (c) any actual or alleged breach of your representations, warranties, and obligations set forth in these TOS; (d) your violation of any rights of another; and (e) your violation of any law, rule or regulation of the United States or any other country. This obligation will survive the termination or expiration of these TOS and/or your use of the Services. You are responsible for all use of the Services using your account, and that these TOS apply to any and all usage of your Member Account. You agree to comply with these TOS and to defend, indemnify and hold harmless Cottage from and against any and all claims and demands arising from usage of your Member Account, whether or not such usage is expressly authorized by you.
22. WAIVER
You acknowledge and agree that the seller of any food or beverage is the applicable Food Producer and, that as the seller, the Food Producer will be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by you, caused in whole or in part by the Food Producer, as well as for any unclaimed property liability arising from unredeemed orders or portions thereof. You waive, and release Cottage and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of a Food Producer in connection with the goods provided in connection therewith and/or as it relates to compliance with applicable laws.
23. DISPUTES
"Disputes" are defined as any claim, controversy, or dispute between you and Cottage, its partners (or their respective affiliates, agents, directors, or employees) including any claims relating in any way to these TOS, any Additional Terms, or the Services, or any other aspect of our relationship.
24. BINDING INDIVIDUAL ARBITRATION
You and Cottage agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST COTTAGE. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 116, fully applies. Any arbitration hearing will occur in Seattle, Washington, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. We will pay all the arbitration fees due to the American Arbitration Association for any Dispute. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Cottage also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in, and you consent to, the exclusive jurisdiction and venue in the state courts in the City of Seattle, King County, Washington, or federal court for the state of Washington.
25. GOVERNING LAW
These TOS and any Dispute will be governed by Washington law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Washington, without regard to its choice of law or conflicts of law principles.
26. LIMITATION ON TIME TO INITIATE A DISPUTE
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
27. ASSIGNMENT
These TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
28. GENERAL
These TOS and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Cottage regarding the Services. In the event of a conflict between these TOS and any other Cottage agreement or Policy, these TOS will prevail and control the subject matter of such conflict. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS or Additional Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Cottage to exercise or enforce any right or provision of these TOS will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there will be no third-party beneficiaries to these TOS.
