Terms & Conditions
Cake Cup Creamery by Dylan Lemay, Terms and Conditions of Use covers Cake Cup Creamery by Dylan Lemay web site cakecupcreamery.com, www.cakecupcreamery.com, and the other related web sites operated under the cakecupcreamery.com domain (collectively, the “Site”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU ARE ACCESSING THE SITE AND SERVICES ON BEHALF OF A COMPANY THAT YOU REPRESENT (“YOUR COMPANY”), THEN YOU AGREE TO BIND BOTH YOURSELF AS AN INDIVIDUAL, AND YOUR COMPANY, TO ALL OF THE TERMS OF THIS AGREEMENT.
By accessing the Site or otherwise using the Services, you acknowledge that you have read and agree to be bound by this Agreement. If you do not agree with any of the terms of this Agreement, you do not have permission to access the Site or use the Services.
In addition, you may also be asked to enter into additional agreements before being permitted to access certain of the Services. Those additional agreements are made a part of this Agreement and will govern your use of the Services covered by the additional agreements. In the event of a conflict between the terms of this Agreement and those additional agreements, the terms of the additional agreements shall govern.
Cake Cup Creamery by Dylan Lemay reserves the right, in its sole discretion, to modify this Agreement at any time by posting a modified version of this Agreement to the Site. You agree to be bound by the modified Agreement through your continued access to the Site or use of the Services.
- Registration. In order to access any Services, you will be asked to submit certain information about yourself (“Registration Information”). You represent and warrant that all Registration Information you have provided is true, accurate, current and complete.
- Email Communication. You must provide your electronic mail (“email”) address when registering to access any Service. We may use your email address, when necessary, to communicate with you regarding the administration of the Site. Occasionally, you may receive newsletters and updates with information that we deem to be of interest to the members of Cake Cup Creamery by Dylan Lemay. If you do not want to receive newsletters and updates, you may opt out of those Services (i) during the registration process, or (iii) by emailing the address at the bottom of newsletters and updates with “UNSUBSCRIBE” in the subject line.
- Individual Features and Services. Certain features of the Services may have their own terms and conditions that you must agree to when you sign up for that particular product, function, or service (each an “Individual Service Agreement”). An Individual Service Agreement supplements these Terms and is hereby incorporated by reference. If any term of these Terms expressly conflicts with any term of an Individual Service Agreement, the conflicting term in the Individual Service Agreement will control. All other terms and conditions of each agreement will remain in full force and effect.
- Use of the Site and the Services – Permissions and Restrictions. You may access and use the Site only for lawful purposes and solely in accordance with the terms of this Agreement. Cake Cup Creamery by Dylan Lemay reserves the right to discontinue any aspect of the Site or Services at any time and without notice. All rights not expressly granted to you under this Agreement are reserved by Cake Cup Creamery by Dylan Lemay and its licensors.
You will not:
license, sublicense, rent, lease, loan, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Site or Services; modify or make derivative works based upon the Site or Services; reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of the Site or Services, or authorize any third party to do any of the foregoing; access or make use of the Services and Site by scripts or automated services; impersonate any person or use a name that you are not authorized to use; or compromise violate or impair system or network security or operation.
- User Content. Some areas of the Site allow Users to post or provide content such as comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Site is referred to as “User Content”). With the exception of Results (as defined below), we claim no ownership rights over User Content created by you; the User Content you create remains yours; however, by providing or sharing User Content through the Site, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Cake Cup Creamery by Dylan Lemay has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Site.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Cake Cup Creamery by Dylan Lemay reserves the right, but is not obligated, to reject and/or remove any User Content that Cake Cup Creamery by Dylan Lemay believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Site is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Site and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
Your User Content and Cake Cup Creamery by Dylan Lemay's use thereof as contemplated by this Agreement and the Site will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Cake Cup Creamery by Dylan Lemay may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Cake Cup Creamery by Dylan Lemay takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over the Site. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Site, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Cake Cup Creamery by Dylan Lemay shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
- User Content License Grant. By posting or otherwise making available any User Content on or through the Site, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Cake Cup Creamery by Dylan Lemay a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site and Cake Cup Creamery by Dylan Lemay’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels.
- Ownership of Intellectual Property. Cake Cup Creamery by Dylan Lemay and its licensors own all rights, title and interest in and to the Site and Services, including, without limitation, any Results (defined below) and any Intellectual Property Rights therein and/or related thereto. “Intellectual Property Rights” means all worldwide patent, patent applications, copyrights, trade secrets, trademarks, service marks, trade names and any other intellectual property, proprietary, and database protection rights. Cake Cup Creamery by Dylan Lemay name and logo are trademarks of Cake Cup Creamery by Dylan Lemay, Inc., and no right or license is granted to you herein to use such trademarks.
- Data Collection. Cake Cup Creamery by Dylan Lemay will have the right to utilize data capture, analysis tools, and other similar tools, to review, extract, compile, synthesize, and analyze queries entered by you as well as any non-personally identifiable data or information resulting from your use of the Services (“Results”). To the extent that any Results are collected by Cake Cup Creamery by Dylan Lemay, such Results will be solely owned by Cake Cup Creamery by Dylan Lemay (and you hereby assign any ownership rights in Results you may have to Cake Cup Creamery by Dylan Lemay), and they may be used by Cake Cup Creamery by Dylan Lemay for any lawful business purpose without a duty of accounting to you; provided, however, that Cake Cup Creamery by Dylan Lemay shall use the Results in an aggregated form only, without specifically identifying the source of the Results.
- DMCA Notice. Since we respect artist and content owner rights, it is Cake Cup Creamery by Dylan Lemay’ policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”) .
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Site, please notify Cake Cup Creamery by Dylan Lemay’ copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner; Identification of the copyrighted work that you claim has been infringed;Identification of the material that is claimed to be infringing and where it is located on the Site; Information reasonably sufficient to permit Cake Cup Creamery by Dylan Lemay to contact you, such as your address, telephone number, and, e-mail address; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted to the following DMCA Agent:
NoticeAddress: Nextbite Headquarters 1610 Little Raven Street #100 Denver, CO 80202
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Cake Cup Creamery by Dylan Lemay and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Cake Cup Creamery by Dylan Lemay’ rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Cake Cup Creamery by Dylan Lemay has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Cake Cup Creamery by Dylan Lemay may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Representations and Warranties. You represent, warrant and covenant for the benefit of Cake Cup Creamery by Dylan Lemay that: (1) you have the legal right and authority to enter into this Agreement, and, if you are accepting this Agreement on behalf of Your Company or other entity, to bind Your Company or other entity to the terms of this Agreement; (2) you have the legal right and authority to perform your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement you enter into in connection with any of the Services; (3) all information you provide to Cake Cup Creamery by Dylan Lemay in connection with this Agreement and your access to the Site and use of the Services is correct and current.
- Indemnification. You agree to indemnify, defend, and hold harmless Cake Cup Creamery by Dylan Lemay and each of its respective employees, officer, directors, and affiliates (“Indemnified Parties”), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from:
(a) your accessing the Site or use of the Services, including any materials disseminated or transmitted by you and/or your Registrants;
(b) your breach of any term of this Agreement; or
(c) your negligence or intentional misconduct hereunder. Cake Cup Creamery by Dylan Lemay will provide you with notice of any such claim or allegation, and Cake Cup Creamery by Dylan Lemay will have the right to participate in the defense of any such claim at its expense.
- Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES WHATSOEVER. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SITE AND USE OF THE SERVICES, AND INTERRUPTIONS, CRASHES AND DOWNTIME MAY OCCUR FROM TIME TO TIME. CAKE CUP CREAMERY BY DYLAN LEMAY DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMERS’ REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS GENERATED BY USING THE SERVICES WILL BE ACCURATE, UP-TO-DATE, COMPLETE, OR RELIABLE. NEXTBITE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION GIVEN BY CAKE CUP CREAMERY BY DYLAN LEMAY WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. YOU AGREE THAT YOUR ACCESS TO THE SITE AND THE INFORMATION THEREON IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SITE OR USE OF THE SERVICES.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CAKE CUP CREAMERY BY DYLAN LEMAY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SITE. UNDER NO CIRCUMSTANCES WILL CAKE CUP CREAMERY BY DYLAN LEMAY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CAKE CUP CREAMERY BY DYLAN LEMAY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CAKE CUP CREAMERY BY DYLAN LEMAY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO CAKE CUP CREAMERY BY DYLAN LEMAY HEREUNDER OR $100.00, WHICHEVER IS GREATER.THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CAKE CUP CREAMERY BY DYLAN LEMAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Linked Sites. The Site may contain links to third party sites that are not under the control of Cake Cup Creamery by Dylan Lemay, and 'Cake Cup Creamery by Dylan Lemay is not responsible for any content on any linked site. If you access a third-party site from the Site, then you do so at your own risk. Cake Cup Creamery by Dylan Lemay provides links only as a convenience and the inclusion of the link does not imply that Cake Cup Creamery by Dylan Lemay endorses or accepts any responsibility for the content on those third-party sites. Cake Cup Creamery by Dylan Lemay welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of your site by Cake Cup Creamery by Dylan Lemay or any group or individual affiliated with Cake Cup Creamery by Dylan Lemay. You may not use on your site any content or trademarks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Site without prior written consent.
- Notices. All notices by you under this Agreement must be delivered in writing by courier, by electronic facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to Cake Cup Creamery by Dylan Lemay’ address set forth on the Site, as appropriate. Such notice will be effective upon receipt or three business days after being deposited in the mail, whichever occurs sooner. 'Cake Cup Creamery by Dylan Lemay may deliver a notice to you by posting of a general notice on the Site, which will be effective 48 hours after posting to the Site.
- Term, Termination. This Agreement shall be effective for as long as you use or access the Site or the Services. Cake Cup Creamery by Dylan Lemay may terminate your access to the Site with or without cause, at any time and without notice to you. Neither Cake Cup Creamery by Dylan Lemay nor any affiliate of Cake Cup Creamery by Dylan Lemay shall be liable to you or to any third party for termination of your access for any reason. Sections 6-8, 11-13, and 18 shall survive termination or expiration of this Agreement.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
a. Governing Law. You agree that: (i) the Site shall be deemed solely based in Colorado; and (ii) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Colorado. This Agreement shall be governed by the internal substantive laws of the State of Colorado, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Denver, Colorado for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Denver County, Colorado is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
b. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CAKE CUP CREAMERY BY DYLAN LEMAY. For any dispute with Cake Cup Creamery by Dylan Lemay, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Cake Cup Creamery by Dylan Lemay has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Denver, Colorado, unless you and Cake Cup Creamery by Dylan Lemay agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Cake Cup Creamery by Dylan Lemay from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
c. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CAKE CUP CREAMERY BY DYLAN LEMAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
- General Provisions. This Agreement is the complete and exclusive statement of the Agreement between Cake Cup Creamery by Dylan Lemay and you regarding the Site and supersedes any other agreement or proposal, oral or written (including information on the Site), and any other communications between Cake Cup Creamery by Dylan Lemay and you. There are no other third-party beneficiaries under this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. You may not assign, delegate or otherwise transfer this Agreement or any of your rights or obligations under this Agreement without the prior written consent of Cake Cup Creamery by Dylan Lemay. Any such assignment, delegation or transfer in violation of the foregoing will be null and void.