READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE” OR
“AGREEMENT”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF BIRCH
COFFEE, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE
INFORMATION ON IT ARE CONTROLLED BY BIRCH COFFEE INC (“BIRCH COFFEE,”
“WE,” “US,” OR “OUR”). THESE TERMS OF USE GOVERN THE USE OF (1) THE
WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE, (2) THE
BIRCH COFFEE MOBILE APPLICATION (THE “APPLICATION”), AND (3) THE MOBILE
ORDERING SERVICE OFFERED THROUGH THE APPLICATION AND/OR WEBSITE (“MOBILE
ORDERING,” AND COLLECTIVELY WITH THE WEBSITE AND THE APPLICATION, THE
“PLATFORM”). BY ACCESSING OR USING THE PLATFORM IN ANY WAY, INCLUDING
USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM
(EACH A “SERVICE” AND COLLECTIVELY THE “SERVICES”) OR BY CLICKING ON THE
“I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE
WEBSITE, DOWNLOADING BIRCH COFFEE’S MOBILE APPLICATION, AND/OR USING
MOBILE ORDERING, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND
AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A
BINDING CONTRACT WITH BIRCH COFFEE, AND (3) YOU HAVE THE AUTHORITY TO
ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE
NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM
“YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED
AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. THESE TERMS OF USE ARE
ONLY INTENDED TO APPLY TO YOUR USE OF THE BIRCH COFFEE PROPERTIES AND DOES
NOT APPLY TO ANY PRODUCTS SOLD OR OFFERED BY THIRD PARTY BUSINESSES
(“BUSINESS(ES)”) THROUGH THE PLATFORM. YOU AGREE AND ACKNOWLEDGE THAT ANY
DISPUTE OR COMPLAINT REGARDING ANY PRODUCTS SOLD OR OFFERED VIA THE
PLATFORM WILL BE WITH THE APPLICABLE BUSINESS. IF YOU DO NOT AGREE TO BE
BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PLATFORM OR THE
SERVICES.
PLEASE BE AWARE THAT THE SECTION OF THIS AGREEMENT ENTITLED “DISPUTE
RESOLUTION” CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE
HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY
DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS
AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT, WHICH
WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED
TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION
AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND
SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU
ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A
COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE
OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE
STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT
GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE
LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS
FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS
AGREEMENT.
PLEASE BE AWARE THAT THE SECTION OF THIS AGREEMENT ENTITLED “BIRCH COFFEE
COMMUNICATIONS” CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS
FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY BIRCH COFFEE IN ITS
SOLE DISCRETION AT ANY TIME. When changes are made, Birch Coffee will make
a new copy of the Terms of Use Agreement available at the Website and
within the Application and/or send an email to you at the last e-mail
address that you provided to us. Birch Coffee may require you to provide
consent to the updated Agreement in a specified manner before further use
of the Platform and/or Services is permitted. If you do not agree to any
change(s) after receiving a notice of such change(s), you shall stop using
the Platform and/or Services. Otherwise, your continued use of the
Platform and/or Services constitutes your acceptance of such change(s).
PLEASE REGULARLY CHECK THE WEBSITE OR APPLICATION TO VIEW THE THEN-CURRENT
TERMS.
Your use of, and participation in, certain Services may be subject to
additional terms (“Supplemental Terms”); such Supplemental Terms will
either be listed in the Terms of Use or will be presented to you for your
acceptance when you sign up to use the supplemental Service. If the Terms
of Use are inconsistent with the Supplemental Terms, the Supplemental
Terms shall control with respect to such Service. The Terms of Use and any
applicable Supplemental Terms are referred to herein as the “Agreement.”
USE OF THE SERVICES AND BIRCH COFFEE PROPERTIES
The Platform, the Services, and the information and content available on
the Platform and Services and all prior versions or branding of the
Application, the Website and the Services (each an “Birch Coffee Property”
and collectively the “Birch Coffee Properties”) are protected by copyright
laws throughout the world. Subject to the Agreement, Birch Coffee grants
you a limited license to use the Birch Coffee Properties solely for your
personal or internal business purposes. Unless otherwise specified by
Birch Coffee in a separate license, your right to use any and all Birch
Coffee Properties is subject to the Agreement.
Application License. Subject to your compliance with the Agreement, Birch
Coffee grants you a limited non-exclusive, non-transferable,
non-sublicensable, revocable license to download, install and use a copy
of the Application on a single mobile device or computer that you own or
control and to run such copy of the Application solely for your own
personal or internal business purposes. Furthermore, with respect to any
Application accessed through or downloaded from the Apple App Store (an
“App Store Sourced Application”), you will only use the App Store Sourced
Application (a) on an Apple-branded product that runs the iOS (Apple’s
proprietary operating system) and (b) as permitted by the “Usage Rules”
set forth in the Apple App Store Terms of Service. Notwithstanding the
first sentence in this section, with respect to any Application accessed
through or downloaded from the Google Play store (a “Google Play Sourced
Application”), you may have additional license rights with respect to use
of the Application on a shared basis within your designated family group.
Your Content License. By posting Your Content (as defined below) to the
Platform, you grant Birch Coffee a non-exclusive, worldwide, royalty-free,
irrevocable, sub-licensable, perpetual license to use, display, edit,
modify, reproduce, distribute, store, and prepare derivative works of Your
Content. This allows us to provide the Services and to promote Birch
Coffee or the Services in general, in any formats and through any
channels, including across any Birch Coffee Services, third-party website,
or advertising medium. You agree not to assert any moral rights or rights
of publicity against Birch Coffee for using Your Content. You also
recognize Birch Coffee’s legitimate interest in using it, in accordance
with the scope of this license, to the extent Your Content contains any
personal information. If you are a business entity, you grant Birch Coffee
a limited non-exclusive, non-transferable, non-sublicensable, revocable
license to use and display your name and all related graphics, logos,
service marks, and trade names you provide to the extent necessary for
Birch Coffee to carry out its responsibilities under this Agreement.
Updates. You understand that Birch Coffee Properties are evolving. As a
result, Birch Coffee may require you to accept updates to Birch Coffee
Properties that you have installed on your computer or mobile device. You
acknowledge and agree that Birch Coffee may update Birch Coffee Properties
with or without notifying you. You may need to update third-party software
from time to time in order to use Birch Coffee Properties.
Certain Restrictions. The rights granted to you in the Agreement are
subject to the following restrictions: (a) you shall not license, sell,
rent, lease, transfer, assign, reproduce, distribute, host or otherwise
commercially exploit Birch Coffee Properties or any portion of Birch
Coffee Properties, including the Website, Application, or Mobile Ordering;
(b) you shall not frame or utilize framing techniques to enclose any
trademark, logo, or other Birch Coffee Properties (including images, text,
page layout or form) of Birch Coffee; (c) you shall not use any metatags
or other “hidden text” using Birch Coffee’s name or trademarks; (d) you
shall not modify, translate, adapt, merge, make derivative works of,
disassemble, decompile, reverse compile or reverse engineer any part of
Birch Coffee Properties except to the extent the foregoing restrictions
are expressly prohibited by applicable law; (e) you shall not use any
manual or automated software, devices or other processes (including but
not limited to spiders, robots, scrapers, crawlers, avatars, data mining
tools or the like) to “scrape” or download data from any web pages
contained in the Website or Application (except that we grant the
operators of public search engines revocable permission to use spiders to
copy materials from the Website for the sole purpose of and solely to the
extent necessary for creating publicly available searchable indices of the
materials, but not caches or archives of such materials); (f) except as
expressly stated herein, no part of Birch Coffee Properties may be copied,
reproduced, distributed, republished, downloaded, displayed, posted or
transmitted in any form or by any means; and (g) you shall not remove or
destroy any copyright notices or other proprietary markings contained on
or in Birch Coffee Properties. Any future release, update or other
addition to Birch Coffee Properties shall be subject to the Agreement.
Birch Coffee, its suppliers and service providers reserve all rights not
granted in the Agreement.
Any unauthorized use of any Birch Coffee Property terminates the licenses
granted by Birch Coffee pursuant to the Agreement.
Birch Coffee Communications. By entering into this Agreement or using the
Birch Coffee Properties, you agree to receive communications from us,
including via messages through the Application, e-mails, text messages and
push notifications. You agree that texts, calls or prerecorded messages
may be generated by automatic telephone dialing systems. Communications
from us and our affiliated companies may include but are not limited to:
operational communications concerning your Account or the use of the Birch
Coffee Properties, updates concerning new and existing features on the
Birch Coffee Properties, communications concerning promotions run by us or
our third-party partners, and news concerning the Birch Coffee and
industry developments. Standard text messaging charges applied by your
cell phone carrier will apply to text messages that we send. IF YOU WISH
TO OPT OUT OF PROMOTIONAL MATERIALS, YOU CAN (A) UNSUBSCRIBE FROM OUR
PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE
PROMOTIONAL EMAIL ITSELF AND/OR (B) UNSUBSCRIBE FROM PUSH NOTIFICATIONS BY
FOLLOWING THE OPTIONS IN THE APPLICATION.
ACCOUNTS
Registering Your Account. In order to access certain features of Birch
Coffee Properties you may be required to become a Registered User. For
purposes of the Agreement, a “Registered User” is a user who has
registered an account on the Website (“Account”) or has an account with
the provider of the Application for the user’s mobile device.
Registration Data. In registering an account on the Website, you agree to
(a) provide true, accurate, current and complete information about
yourself as prompted by the registration form (the “Registration Data”);
and (b) maintain and promptly update the Registration Data to keep it
true, accurate, current and complete. You represent that you are (i) at
least thirteen (13) years old; (ii) of legal age to form a binding
contract; and (iii) not a person barred from using Birch Coffee Properties
under the laws of the United States, your place of residence or any other
applicable jurisdiction. You are responsible for all activities that occur
under your Account. You agree that you shall monitor your Account to
restrict use by minors, and you will accept full responsibility for any
unauthorized use of Birch Coffee Properties by minors. You may not share
your Account or password with anyone, and you agree to (y) notify Birch
Coffee immediately of any unauthorized use of your password or any other
breach of security; and (z) exit from your Account at the end of each
session. If you provide any information that is untrue, inaccurate, not
current or incomplete, or Birch Coffee has reasonable grounds to suspect
that any information you provide is untrue, inaccurate, not current or
incomplete, Birch Coffee has the right to suspend or terminate your
Account and refuse any and all current or future use of Birch Coffee
Properties (or any portion thereof). You agree not to create an Account
using a false identity or information, or on behalf of someone other than
yourself. You agree that you shall not have more than one Account per
platform. Birch Coffee reserves the right to remove or reclaim any
usernames at any time and for any reason, including but not limited to,
claims by a third party that a username violates the third party’s rights.
You agree not to create an Account or use Birch Coffee Properties if you
have been previously removed by Birch Coffee, or if you have been
previously banned from any of Birch Coffee Properties.
Your Account. Notwithstanding anything to the contrary herein, you
acknowledge and agree that you shall have no ownership or other property
interest in your Account, and you further acknowledge and agree that all
rights in and to your Account are and shall forever be owned by and inure
to the benefit of Birch Coffee.
Necessary Equipment and Software. You must provide all equipment and
software necessary to connect to Birch Coffee Properties, including but
not limited to, a mobile device that is suitable to connect with and use
Birch Coffee Properties, in cases where the Services offer a mobile
component. You are solely responsible for any fees, including Internet
connection or mobile fees, that you incur when accessing Birch Coffee
Properties.
RESPONSIBILITY FOR CONTENT
Types of Content. You acknowledge that all information, data, text,
software, photographs, graphics, video, messages, tags and/or other
materials accessible through Birch Coffee Properties (collectively,
“Content”), including Birch Coffee Properties, is the sole responsibility
of the party from whom such Content originated. This means that you, and
not Birch Coffee, are entirely responsible for all Content that you
upload, post, e-mail, transmit or otherwise make available (“Make
Available”) through Birch Coffee Properties (“Your Content”), and that you
and other Registered Users of Birch Coffee Properties, and not Birch
Coffee, are similarly responsible for all Content that you and they Make
Available through Birch Coffee Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Birch Coffee has
no obligation to pre-screen Content (including, but not limited to, User
Content), although Birch Coffee reserves the right in its sole discretion
to pre- screen, refuse or remove any Content. By entering into the
Agreement, you hereby provide your irrevocable consent to such monitoring.
You acknowledge and agree that you have no expectation of privacy
concerning the transmission of Your Content, including without limitation
chat, text, or voice communications. In the event that Birch Coffee
pre-screens, refuses or removes any Content, you acknowledge that Birch
Coffee will do so for Birch Coffee’s benefit, not yours. Without limiting
the foregoing, Birch Coffee shall have the right to remove any Content
that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Birch Coffee in writing elsewhere,
Birch Coffee has no obligation to store any of Your Content that you Make
Available on Birch Coffee Properties. Birch Coffee has no responsibility
or liability for the deletion or accuracy of any Content, including Your
Content; the failure to store, transmit or receive transmission of
Content; or the security, privacy, storage, or transmission of other
communications originating with or involving use of Birch Coffee
Properties. Certain Services may enable you to specify the level at which
such Services restrict access to Your Content. You are solely responsible
for applying the appropriate level of access to Your Content. If you do
not choose, the system may default to its most permissive setting. You
agree that Birch Coffee retains the right to create reasonable limits on
Birch Coffee’s use and storage of the Content, including Your Content,
such as limits on file size, storage space, processing capacity, and
similar limits described on the Website and as otherwise determined by
Birch Coffee in its sole discretion.
OWNERSHIP
Birch Coffee Properties. Except with respect to Your Content and User
Content, you agree that Birch Coffee and its suppliers own all rights,
title and interest in Birch Coffee Properties (including but not limited
to, any computer code, objects, stories, dialogue, artwork, moral rights,
documentation, and any Birch Coffee software). You will not remove, alter
or obscure any copyright, trademark, service mark or other proprietary
rights notices incorporated in or accompanying any Birch Coffee
Properties.
Trademarks. The Birch Coffee name and all related graphics, logos, service
marks and trade names used on or in connection with any Birch Coffee
Properties or in connection with the Services are the trademarks of Birch
Coffee and may not be used without permission in connection with your, or
any third-party, products or services. Other trademarks, service marks and
trade names that may appear on or in Birch Coffee Properties are the
property of their respective owners. As noted earlier in this Agreement,
if you are a business entity, you grant Birch Coffee a limited
non-exclusive, non-transferable, non-sublicensable, revocable license to
use and display your name and all related graphics, logos, service marks,
and trade names you provide to the extent necessary for Birch Coffee to
carry out its responsibilities under this Agreement.
Your Content. Birch Coffee does not claim ownership of Your Content.
However, when you as a Registered User post or publish Your Content on or
in Birch Coffee Properties, you represent that you own and/or have an
appropriate license to use and display Your Content (in whole or in part)
on the Birch Coffee Properties.
Username. Notwithstanding anything contained herein to the contrary, by
submitting Your Content to any forums, comments, or any other area on
Birch Coffee Properties, you hereby expressly permit Birch Coffee to
identify you by your username (which may be a pseudonym) as the
contributor of Your Content in any publication in any form, media or
technology now known or later developed in connection with Your Content.
If you decide to not have your full name serve as the name associated with
your account, you may not use language that is offensive, vulgar,
infringes someone’s intellectual property rights, or otherwise violates
this Agreement.
Feedback. You agree that submission of any ideas, suggestions, documents,
and/or proposals to Birch Coffee through its suggestion, feedback, wiki,
forum, or similar pages (“Feedback”) is at your own risk and that Birch
Coffee has no obligations (including without limitation obligations of
confidentiality) with respect to such Feedback. You represent and warrant
that you have all rights necessary to submit the Feedback. You hereby
grant to Birch Coffee a fully paid, royalty-free, perpetual, irrevocable,
worldwide, non-exclusive, and fully sublicensable right and license to
use, reproduce, perform, display, distribute, adapt, modify, re-format,
create derivative works of, and otherwise commercially or non-commercially
exploit in any manner, any and all Feedback, and to sublicense the
foregoing rights, in connection with the operation and maintenance of
Birch Coffee Properties and/or Birch Coffee’s business.
USER CONDUCT
As a condition of use, you agree not to use Birch Coffee Properties for
any purpose that is prohibited by this Agreement or by applicable law.
This includes any local, state, federal, and international laws that may
apply to you. For example, it is your responsibility to obtain any permits
or licenses required, and to meet applicable legal requirements in
applicable jurisdiction(s). This includes the sale and delivery of your
items. You may not sell anything that violates any laws; and you may not
engage in fraud (including false claims or infringement notices), theft,
anti-competitive conduct, or any other unlawful acts or crimes against
Birch Coffee, another Birch Coffee user, or a third party.
You shall not (and shall not permit any third party to) either (a) take
any action or (b) Make Available any Content on or through Birch Coffee
Properties that: (i) infringes any intellectual property right of any
person or entity; (ii) is threatening, abusive, or otherwise offensive;
(iii) constitutes unsolicited advertising; (iv) impersonates any person or
entity, including any employee or representative of Birch Coffee; (v)
interferes with or attempts to interfere with the proper functioning of
Birch Coffee Properties or uses Birch Coffee Properties in any way not
expressly permitted by this Agreement; (vi) is false and misleading or
uses the Platform or Services in a manner that is fraudulent of deceptive,
or (vii) attempts to engage in or engage in, any potentially harmful acts
that are directed against Birch Coffee Properties, including but not
limited to violating or attempting to violate any security features of
Birch Coffee Properties, using manual or automated software or other means
to access, “scrape,” “crawl” or “spider” any pages contained in Birch
Coffee Properties, introducing viruses, worms, or similar harmful code
into Birch Coffee Properties, or interfering or attempting to interfere
with use of Birch Coffee Properties by any other user, host or network,
including by means of overloading, “flooding,” “spamming,” “mail bombing,”
or “crashing” Birch Coffee Properties.
INVESTIGATIONS
Birch Coffee may, but is not obligated to, monitor or review Birch Coffee
Properties and Content at any time. Without limiting the foregoing, Birch
Coffee shall have the right, in its sole discretion, to remove any of Your
Content for any reason (or no reason), including if such Content violates
the Agreement or any applicable law. Although Birch Coffee does not
generally monitor user activity occurring in connection with Birch Coffee
Properties or Content, if Birch Coffee becomes aware of any possible
violations by you of any provision of the Agreement, Birch Coffee reserves
the right to investigate such violations, and Birch Coffee may, at its
sole discretion, immediately terminate your license to use Birch Coffee
Properties, or change, alter or remove Your Content, in whole or in part,
without prior notice to you.
INTERACTIONS WITH OTHER USERS
User Responsibility. You are solely responsible for your interactions with
other Registered Users and any other parties with whom you interact;
provided, however, that Birch Coffee reserves the right, but has no
obligation, to intercede in such disputes. You agree that Birch Coffee
will not be responsible for any liability incurred as the result of such
interactions.
Content Provided by Other Users. Birch Coffee Properties may contain User
Content provided by other Registered Users. Birch Coffee is not
responsible for and does not control User Content. Birch Coffee has no
obligation to review or monitor, and does not approve, endorse or make any
representations or warranties with respect to, User Content. You use all
User Content and interact with other Registered Users at your own risk.
FEES AND PURCHASE TERMS
General Purpose of Agreement: Sale of Service, not Software. The purpose
of the Agreement is for you to secure access to the Services, including
Mobile Ordering. All fees set forth in this Agreement and the Birch Coffee
Payments Policy and paid by you under the Agreement shall be considered
solely in furtherance of this purpose. In no way are these fees paid
considered payment for the sale, license, or use of Birch Coffee’s
software, and, furthermore, any use of Birch Coffee’s software by you in
furtherance of the Agreement will be considered merely in support of the
purpose of the Agreement.
Payment. Products or services made available on the Platform may be
available for purchase. By purchasing products or services made available
through the Platform, you represent that you are 18 years of age or older,
and that you will comply with all specified processes and procedures for
redeeming your purchase. All charges for purchases made through the
Platform are facilitated through a third-party payment processing service
(e.g., Square, Inc., Stripe, Inc., Shop!) (“Payment Provider”). Birch
Coffee may replace its third-party payment processing services without
notice to you. Charges shall only be made through the Platform. By making
use of some or all of these payment services on the Platform, you agree to
be bound by Birch Coffee’s policies, including the Birch Coffee Payments
Policy, and the Payment Provider’s policies, user agreements, terms, and
conditions. The Payment Provider’s Terms of Use are available at: with
respect to: (a) Stripe, Inc., its Services Agreement at
http://stripe.com/legal and its Privacy Policy at
http://stripe.com/privacy; (b) Shop!, its Terms of Service at:
http://shop.app/terms-of-service and its Privacy Policy at:
http://shopify.com/legal/privacy/app-users; and (c) with respect to
Square, Inc., its Payment Terms at:
https://squareup.com/us/en/legal/general/payment and its Privacy Notices
at: https://squareup.com/us/en/legal/general/privacy. You hereby consent
and authorize Birch Coffee to share the information you provide to Birch
Coffee with the applicable Seller (as defined below) and the Payment
Provider, including Stripe, Inc, Shopify, Inc. and Square, Inc., to the
extent required to provide the payment services to you; as well as to
other third parties for advertising or marketing purposes. Stripe, Inc.,
Shopify, Inc. and Square, Inc. may also be contacted directly for payments
support by email or chat at
https://support.stripe.com/questions/contact-stripe-support, bye@shop.app,
or support@squareup.com.
The Seller appoints Birch Coffee as a limited collection agent. If Birch
Coffee does not settle to the Seller any such payments as described in the
Agreement, such Seller will have recourse only against Birch Coffee and
not you, as payment is deemed made by you to the Seller upon constructive
or actual receipt of funds by Birch Coffee.
You are responsible for all charges incurred under your account, whether
made by you or another person using your account. Should you fail to
properly settle your outstanding balance for purchases made through the
Platform, a standard 20% tip of gratuity will be included as part of your
payment. If for any reason Birch Coffee does not receive payment for a
purchase, Birch Coffee may exercise its rights in law and equity,
including (a) immediately suspending or terminating your account; (b)
seeking collection of the outstanding amount owed; and/or (c) seeking
legal action against you for the breach of these Terms of Use.
You are also responsible for paying any governmental taxes imposed in
connection with use of the Platform or the purchase of any products or
services made available through the Platform, including sales, use and
excise taxes (excluding only taxes on Birch Coffee’s net income). To the
extent that Birch Coffee is obligated to collect such taxes, the
applicable tax will be added to your billing account.
You understand that the prices for product or menu items displayed through
the Platform may differ from the prices offered or published by Businesses
for the same product or menu items and/or from prices available at other
third-party websites/mobile applications. Prices for product or menu items
displayed through the Platform may not be the lowest prices at which the
product or menu items are sold. Birch Coffee does not control how much a
Business will charge for a particular product or menu item.
Certain features of the Platform, including placing mobile orders, may
require you to pay fees to Birch Coffee. Birch Coffee may change, or add,
fees for use of our Platform at any time as we deem necessary or
appropriate. You will have an opportunity to review and accept the fees
that you will be charged, as applicable. In all cases, you acknowledge and
accept that a fee will be charged and you agree to pay said fee. Birch
Coffee has no obligation to itemize its costs, profits or margins when
publishing prices on the Platform and reserves the right to change such
prices at any time, at its discretion. You are liable for all transaction
taxes on the Platform provided under these Terms of Use.
Birch Coffee will charge the payment method you specify at the time of
purchase or as otherwise specified by you in your Account.
Birch Coffee, in its sole discretion, may provide users with product
credits, or make promotional offers with different features and different
rates to any consumers. These credits and offers may be used for future
transactions on the Platform. Such credits or offers are non-
transferrable, may not be resold, and are not redeemable for cash or other
consideration. Birch Coffee reserves its right to expire, limit, or modify
any credits or promotion at any time. If your Account is cancelled for any
or no reason, you may forfeit any pending, current, or future credits or
promotional offers and any other forms of unredeemed value in or
associated with your Account without prior notice to you.
No Returns or Refunds Policy. Birch Coffee does not sell goods or
services, but only provides a platform for transactions between Businesses
and their customers. Birch Coffee does not have any return or refund
policy, and all refunds or returns shall be in accordance with the return
and refund policy of the applicable Business. If you are not satisfied
with any goods or services you have purchased, please be in direct contact
with the applicable Business.
Notwithstanding the above, if an accidental price discrepancy between the
actual price in the store and the payment processed via the Services is
discovered following the use of the Services, contact Birch Coffee at
info@birchcoffee.com to resolve such discrepancy.
Advertising Revenue. Birch Coffee reserves the right to display
third-party Ads before, after, or in conjunction with User Content posted
on the Platform or Services, and you acknowledge and agree that Birch
Coffee has no obligation to you in connection therewith (including,
without limitation, any obligation to share revenue received by Birch
Coffee as a result of such advertising).
Indemnification
You agree to indemnify and hold Birch Coffee, its parents, subsidiaries,
affiliates, officers, employees, agents, payment processors, partners,
suppliers, and licensors (each, a “Birch Coffee Party” and collectively,
the “Birch Coffee Parties”) harmless from any losses, costs, liabilities
and expenses (including reasonable attorneys’ fees) relating to or arising
out of any and all of the following: (a) Your Content; (b) your use of, or
inability to use, any Birch Coffee Property; (c) your violation of the
Agreement; (d) your violation of any rights of another party, including
any Registered Users; or (e) your violation of any applicable laws, rules
or regulations. Birch Coffee 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
Birch Coffee in asserting any available defenses. This provision does not
require you to indemnify any of the Birch Coffee Parties for any
unconscionable commercial practice by such party or for such party’s
fraud, deception, false promise, misrepresentation or concealment, or
suppression or omission of any material fact in connection with the
Platform or any Services provided hereunder. You agree that the provisions
in this section will survive any termination of your Account, the
Agreement and/or your access to Birch Coffee Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY
APPLICABLE LAW, YOUR USE OF BIRCH COFFEE PROPERTIES IS AT YOUR SOLE RISK,
AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.
BIRCH COFFEE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS,
AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF
THE WEBSITE. WITHOUT LIMITING THE FOREGOING, THE BIRCH COFFEE PARTIES MAKE
NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) BIRCH COFFEE PROPERTIES
OR THE BUSINESSES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF BIRCH
COFFEE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR
(3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF BIRCH COFFEE PROPERTIES
WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH BIRCH COFFEE
PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED
TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS BIRCH COFFEE
PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. BIRCH COFFEE MAKES NO WARRANTY, REPRESENTATION OR CONDITION
WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY,
EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIRCH
COFFEE OR THROUGH BIRCH COFFEE PROPERTIES WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
From time to time, Birch Coffee may offer new “beta” features or tools
with which its users may experiment. Such features or tools are offered
solely for experimental purposes and without any warranty of any kind, and
may be modified or discontinued at Birch Coffee’s sole discretion. The
provisions of this section apply with full force to such features or
tools.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT
BIRCH COFFEE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD
BIRCH COFFEE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING
BUSINESSES AND ANY PRODUCTS OBTAINED FROM SUCH BUSINESSES, AS WELL AS
OPERATORS OF EXTERNAL SITES. YOU ALSO ACKNOWLEDGE THAT THE RISK OF INJURY
FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR
ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF BIRCH
COFFEE PROPERTIES. YOU UNDERSTAND THAT BIRCH COFFEE DOES NOT MAKE ANY
ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF BIRCH COFFEE PROPERTIES.
BIRCH COFFEE MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY
THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN
UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BIRCH COFFEE MAKES NO WARRANTY
REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY,
TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY BUSINESS OR
USER CONTENT OBTAINED THROUGH BIRCH COFFEE PROPERTIES.
Third-Party Materials. As a part of Birch Coffee Properties, you may have
access to materials that are hosted by another party. You agree that it is
impossible for Birch Coffee to monitor such materials and that you access
these materials at your own risk.
LIMITATION OF LIABILITY
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE
FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL BIRCH COFFEE PARTIES BE
LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF
PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BIRCH COFFEE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR
MEETINGS WITH OTHER USERS OF BIRCH COFFEE PROPERTIES, ON ANY THEORY OF
LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE BIRCH COFFEE
PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES
RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR
OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH BIRCH
COFFEE PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON
BIRCH COFFEE PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO BIRCH COFFEE
PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, BIRCH COFFEE
PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE
TOTAL AMOUNT PAID TO BIRCH COFFEE BY YOU DURING THE ONE-MONTH PERIOD PRIOR
TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $20;
OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM
ARISES.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF
THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT
HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIRCH COFFEE AND
YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
It is Birch Coffee’s policy to terminate membership privileges of any
Registered User who repeatedly infringes copyright upon prompt
notification to Birch Coffee by the copyright owner or the copyright
owner’s legal agent. Without limiting the foregoing, if you believe that
your work has been copied and posted on Birch Coffee Properties in a way
that constitutes copyright infringement, please provide our Copyright
Agent with the following information: (a) an electronic or physical
signature of the person authorized to act on behalf of the owner of the
copyright interest; (b) a description of the copyrighted work that you
claim has been infringed; (c) a description of the location on Birch
Coffee Properties of the material that you claim is infringing; (d) your
address, telephone number and e-mail address; (e) a written statement by
you that you have a good faith belief that the disputed use is not
authorized by the copyright owner, its agent or the law; and (f) a
statement by you, made under penalty of perjury, that the above
information in your notice is accurate and that you are the copyright
owner or authorized to act on the copyright owner’s behalf. Contact
information for Birch Coffee’s Copyright Agent for notice of claims of
copyright infringement is as follows: Birch Coffee Inc., 37-20 48th Ave.
Long Island City, NY 11101, Attn: Legal Department.
MONITORING AND ENFORCEMENT
Birch Coffee reserves the right to: (a) remove or refuse to post any of
Your Content for any or no reason in our sole discretion; (b) take any
action with respect to any of Your Content that we deem necessary or
appropriate in our sole discretion, including if we believe that such
Content violates this Agreement, infringes any intellectual property right
or other right of any person or entity, threatens the personal safety of
users of the Birch Coffee Properties or the public, or could create
liability for the Birch Coffee; (c) disclose your identity or other
information about you to any third party who claims that material posted
by you violates their rights, including their intellectual property rights
or their right to privacy; (d) take appropriate legal action, including
without limitation, referral to law enforcement, for any illegal or
unauthorized use of the Birch Coffee Properties; and/or (e) terminate or
suspend your access to all or part of the Birch Coffee Properties for any
or no reason, including without limitation, any violation of this
Agreement.
If Birch Coffee becomes aware of any possible violations by you of the
Agreement, Birch Coffee reserves the right to investigate such violations.
If, as a result of the investigation, Birch Coffee believes that criminal
activity has occurred, Birch Coffee reserves the right to refer the matter
to, and to cooperate with, any and all applicable legal authorities. Birch
Coffee is entitled, except to the extent prohibited by applicable law, to
disclose any information or materials on or in Birch Coffee Properties,
including Your Content, in Birch Coffee’s possession in connection with
your use of Birch Coffee Properties, to (i) comply with applicable laws,
legal process or governmental request; (ii) enforce the Agreement, (iii)
respond to any claims that Your Content violates the rights of third
parties, (iv) respond to your requests for customer service, or (v)
protect the rights, property or personal safety of Birch Coffee, its
Registered Users or the public, and all enforcement or other government
officials, as Birch Coffee in its sole discretion believes to be necessary
or appropriate.
TERM AND TERMINATION
Term. The Agreement commences on the date when you accept them (as
described in the preamble above) and remain in full force and effect while
you use Birch Coffee Properties, unless terminated earlier in accordance
with the Agreement.
Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree
that the Agreement commenced on the earlier to occur of (a) the date you
first used Birch Coffee Properties or (b) the date you accepted the
Agreement, and will remain in full force and effect while you use any
Birch Coffee Properties, unless earlier terminated in accordance with the
Agreement.
Termination of Services by Birch Coffee. Birch Coffee has the right to,
immediately and without notice, suspend or terminate any Services,
including Mobile Ordering, provided to you. You agree that all
terminations for cause shall be made in Birch Coffee’s sole discretion and
that Birch Coffee shall not be liable to you or any third party for any
termination of your Account.
Termination of Services by You. If you want to terminate the Services,
including Mobile Ordering, provided by Birch Coffee, you may do so by
closing your Account for all of the Services that you use.
Effect of Termination. Termination of any Service, including Mobile
Ordering, includes removal of access to such Service and barring of
further use of the Service.
Termination of all Services also includes deletion of your password and
all related information, files and Content associated with or inside your
Account (or any part thereof), including Your Content. Upon termination of
any Service, your right to use such Service will automatically terminate
immediately. You understand that any termination of Services may involve
deletion of Your Content associated therewith from our live databases.
Birch Coffee will not have any liability whatsoever to you for any
suspension or termination, including for deletion of Your Content. All
provisions of the Agreement which by their nature should survive, shall
survive termination of Services, including without limitation, ownership
provisions, warranty disclaimers, and limitation of liability.
No Subsequent Registration. If your registration(s) with, or ability to
access, Birch Coffee Properties or any other Birch Coffee community, is
discontinued by Birch Coffee due to your violation of any portion of the
Agreement or for conduct otherwise inappropriate for the community, then
you agree that you shall not attempt to re-register with or access Birch
Coffee Properties or any Birch Coffee community through use of a different
member name or otherwise, and you acknowledge that you will not be
entitled to receive a refund for fees related to those Birch Coffee
Properties to which your access has been terminated. In the event that you
violate the immediately preceding sentence, Birch Coffee reserves the
right, in its sole discretion, to immediately take any or all of the
actions set forth herein without any notice or warning to you.
DISPUTE RESOLUTION
Please read the following arbitration agreement in this section
(“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate
disputes with Birch Coffee and limits the manner in which you can seek
relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim,
or request for relief relating in any way to your access or use of the
Platform, to any products sold or distributed through the Platform, or to
any aspect of your relationship with Birch Coffee, will be resolved by
binding arbitration, rather than in court, except that (a) you may assert
claims or seek relief in small claims court if your claims qualify; and
(b) you or Birch Coffee may seek equitable relief in court for
infringement or other misuse of intellectual property rights (such as
trademarks, trade dress, domain names, trade secrets, copyrights, and
patents). This Arbitration Agreement shall apply, without limitation, to
all disputes or claims and requests for relief that arose or were asserted
before the effective date of this Agreement or any prior version of this
Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the
interpretation and enforcement of this Arbitration Agreement. To begin an
arbitration proceeding, you must send a letter requesting arbitration and
describing your dispute or claim or request for relief to Birch Coffee
37-20 48th Ave Long Island City, NY 11101, Attn: Legal Department, with a
copy to info@birchcoffee.com. The arbitration will be conducted by JAMS,
an established alternative dispute resolution provider. Disputes involving
claims, counterclaims, or request for relief under $250,000, not inclusive
of attorneys’ fees and interest, shall be subject to JAMS’s most current
version of the Streamlined Arbitration Rules and procedures available at
http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes
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 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 the arbitrator finds that you cannot afford to pay
JAMS’s filing, administrative, hearing and/or other fees and cannot obtain
a waiver from JAMS, Birch Coffee will pay them for you. In addition, Birch
Coffee will reimburse all such JAMS’s filing, administrative, hearing
and/or other fees for disputes, claims, or requests for relief totaling
less than $10,000 unless the arbitrator determines the claims are
frivolous.
You may choose to have the arbitration conducted by telephone, based on
written submissions, or in person in the country where you live or at
another mutually agreed location. Any judgment on the award rendered by
the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to
(a) determine the scope and enforceability of this Arbitration Agreement
and (b) resolve any dispute related to the interpretation, applicability,
enforceability or formation of this Arbitration Agreement including, but
not limited to, any assertion that all or any part of this Arbitration
Agreement is void or voidable. The arbitration will decide the rights and
liabilities, if any, of you and Birch Coffee. The arbitration proceeding
will not be consolidated with any other matters or joined with any other
cases or parties. The arbitrator shall have the authority to grant motions
dispositive of all or part of any claim. The arbitrator shall have the
authority to award monetary damages and to grant any non-monetary remedy
or relief available to an individual under applicable law, the arbitral
forum’s rules, and the Agreement (including the Arbitration Agreement).
The arbitrator shall issue a written award and statement of decision
describing the essential findings and conclusions on which the award is
based, including the calculation of any damages awarded. 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.
Waiver of Jury Trial. YOU AND BIRCH COFFEE HEREBY WAIVE ANY CONSTITUTIONAL
AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE
OR A JURY. You and Birch Coffee are instead electing that all disputes,
claims, or requests for relief shall be resolved by arbitration under this
Arbitration Agreement, except as specified in the section entitled
“Application of Arbitration Agreement” above. An arbitrator can award on
an individual basis the same damages and relief as a court and must follow
this Agreement 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.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS,
AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT
MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE
BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE
CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY
OTHER CUSTOMER OR USER.
If a decision is issued stating that applicable law precludes enforcement
of any of this section’s limitations as to a given dispute, claim, or
request for relief, then such aspect must be severed from the arbitration
and brought into the State or Federal Courts located in the State of New
York. All other disputes, claims, or requests for relief shall be
arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions
of this Arbitration Agreement by sending written notice of your decision
to opt out to info@birchcoffee.com within thirty (30) days after first
becoming subject to this Arbitration Agreement. Your notice must include
your name and address, your Birch Coffee username (if any), the email
address you used to set up your Birch Coffee account (if you have one),
and an unequivocal 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, or may enter in the future, with us.
Severability. Except as provided in the section entitled “Waiver of Class
or Other Non-Individualized Relief”, 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.
Survival of Agreement. This Arbitration Agreement will survive the
termination of your relationship with Birch Coffee.
Modification. Notwithstanding any provision in this Agreement to the
contrary, we agree that if Birch Coffee makes any future material change
to this Arbitration Agreement, you may reject that change within thirty
(30) days of such change becoming effective by writing Birch Coffee at
support@Birch Coffee.com.
THIRD-PARTY SERVICES
Market Place Exchange. Birch Coffee Properties can be used to facilitate
the purchase and sale of services or merchandise through Birch Coffee
Properties from other persons not affiliated with Birch Coffee
(“Seller(s)”). All matters concerning the merchandise and services desired
from a Seller, including but not limited to purchase terms, payment terms,
warranties, guarantees, maintenance and delivery, are solely between you
and the Seller. Birch Coffee makes no warranties or representations
whatsoever with regard to any goods or services provided by Sellers.
Third-Party Websites and Ads. Birch Coffee Properties may contain links to
third-party websites (“Third-Party Websites”) and advertisements for third
parties (“Third- Party Ads”). When you click on a link to a Third-Party
Website or Third-Party Ad, we will not warn you that you have left Birch
Coffee Properties and are subject to the Terms of Use (including privacy
policies) of another website or destination. Such Third-Party Websites and
Third-Party Ads are not under the control of Birch Coffee. Birch Coffee is
not responsible for any Third-Party Websites or Third-Party Ads. Birch
Coffee provides these Third-Party Websites and Third Party Ads only as a
convenience and does not review, approve, monitor, endorse, warrant, or
make any representations with respect to Third-Party Websites or
Third-Party Ads, or any product or service provided in connection
therewith. You use all links in Third-Party Websites and Third-Party Ads
at your own risk. When you leave our Website, these Terms and our policies
no longer govern. You should review applicable terms and policies,
including privacy and data gathering practices, of any Third-Party
Websites or Third-Party Ads, and make whatever investigation you feel
necessary or appropriate before proceeding with any transaction with any
third party.
App Stores. You acknowledge and agree that the availability of the
Application and the Services is dependent on the third party from whom you
received the Application license, e.g., the Apple App Store or Google Play
(each, an “App Store”). You acknowledge that the Agreement is between you
and Birch Coffee and not with the App Store. Birch Coffee, not the App
Store, is solely responsible for Birch Coffee Properties, including the
Application, the content thereof, maintenance, support services, and
warranty therefor, and addressing any claims relating thereto (e.g.,
product liability, legal compliance or intellectual property
infringement). In order to use the Application, you must have access to a
wireless network, and you agree to pay all fees associated with such
access. You also agree to pay all fees (if any) charged by the App Store
in connection with Birch Coffee Properties, including the Application. You
agree to comply with, and your license to use the Application is
conditioned upon your compliance with all terms of agreement imposed by
the applicable App Store when using any Birch Coffee Property, including
the Application. You acknowledge that the App Store (and its subsidiaries)
are third-party beneficiaries of the Agreement and will have the right to
enforce it.
GENERAL PROVISIONS.
Electronic Communications. The communications between you and Birch Coffee
may take place via electronic means, whether you visit Birch Coffee
Properties or send Birch Coffee e-mails, or whether Birch Coffee posts
notices on Birch Coffee Properties or communicates with you via e-mail.
For contractual purposes, you (a) consent to receive communications from
Birch Coffee in an electronic form; and (b) agree that all Terms of Use,
agreements, notices, disclosures, and other communications that Birch
Coffee provides to you electronically satisfy any legal requirement that
such communications would satisfy if it were to be in writing. The
foregoing does not affect your statutory rights, including but not limited
to the Electronic Signatures in Global and National Commerce Act at 15
U.S.C. §7001 et seq. (“E-Sign”).
Release. You hereby release Birch Coffee Parties and their successors from
claims, demands, any and all losses, damages, rights, and actions of any
kind, including personal injuries, death, and property damage, that is
either directly or indirectly related to or arises from your use of Birch
Coffee Properties, including but not limited to, any interactions with or
conduct of other users or third-party websites of any kind arising in
connection with or as a result of the Agreement or your use of Birch
Coffee Properties. If you are a California resident, you hereby waive
California Civil Code Section 1542, which states, “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.” The foregoing release
does not apply to any claims, demands, or any losses, damages, rights and
actions of any kind, including personal injuries, death or property damage
for any unconscionable commercial practice by a Birch Coffee Party or for
such party’s fraud, deception, false, promise, misrepresentation or
concealment, suppression or omission of any material fact in connection
with the Platform or any Services provided hereunder.
Assignment. The Agreement, and your rights and obligations hereunder, may
not be assigned, subcontracted, delegated or otherwise transferred by you
without Birch Coffee’s prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void.
Relationship. Except as expressly stated herein, this Agreement does not
create any agency, partnership, joint venture, employment, or franchisee
relationship between you and Birch Coffee.
Force Majeure. Birch Coffee 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,
pandemics, epidemics, strikes or shortages of transportation facilities,
fuel, energy, labor or materials. If you are a United Kingdom resident and
if a force majeure event occurs that affects Birch Coffee’s performance of
its obligations under the Agreement: (a) Birch Coffee will contact you as
soon as reasonably possible to notify you; and (b) Birch Coffee’s
obligations under the Agreement will be suspended and the time for Birch
Coffee’s performance of its obligations will be extended for the duration
of the force majeure event.
Questions, Complaints, Claims. If you have any questions, complaints or
claims with respect to Birch Coffee Properties, please contact us at
info@birchcoffee.com. We will do our best to address your concerns. If you
feel that your concerns have been addressed incompletely, we invite you to
let us know for further investigation.
Governing Law. The Terms and any action related thereto will be governed
and interpreted by and under the laws of the State of New York, consistent
with the Federal Arbitration Act, without giving effect to any principles
that provide for the application of the law of another jurisdiction. The
United Nations Convention on Contracts for the International Sale of Goods
does not apply to the AGREEMENT. IF AND ONLY IF YOU ARE A RESIDENT OF THE
UNITED KINGDOM each party irrevocably agrees that the courts of England
and Wales shall have exclusive jurisdiction to settle any dispute or claim
arising out of or in connection with this Agreement or its subject matter
or formation (including non-contractual disputes or claims).
Choice of Language. It is the express wish of the parties that the
Agreement and all related documents have been drawn up in English. This
Agreement, and any contract between us, are only in the English language.
C’est la volonté expresse des parties que la presente convention ainsi que
les documents qui s’y rattacent soient rediges en anglais.
Notice. Where Birch Coffee requires that you provide an e-mail address,
you are responsible for providing Birch Coffee with your most current
e-mail address. In the event that the last e-mail address you provided to
Birch Coffee is not valid, or for any reason is not capable of delivering
to you any notices required/ permitted by the Agreement, Birch Coffee’s
dispatch of the e-mail containing such notice will nonetheless constitute
effective notice. You may give notice to Birch Coffee at the following
address: 37-20 48th Ave. Long Island City, NY 11101. Such notice shall be
deemed given when received by Birch Coffee by letter delivered by
nationally recognized overnight delivery service or first class postage
prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on
one occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or
unenforceable, that portion shall be construed in a manner to reflect, as
nearly as possible, the original intention of the parties, and the
remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Birch Coffee
Properties except as authorized by U.S. law, the laws of the jurisdiction
in which you obtained Birch Coffee Properties, and any other applicable
laws. In particular, but without limitation, Birch Coffee Properties may
not be exported or re-exported (a) into any United States embargoed
countries, or (b) to anyone on the U.S. Treasury Department’s list of
Specially Designated Nationals or the U.S. Department of Commerce’s Denied
Person’s List or Entity List. By using Birch Coffee Properties, you
represent and warrant that (i) you are not located in a country that is
subject to a U.S. Government embargo, or that has been designated by the
U.S. Government as a “terrorist supporting” country and (ii) you are not
listed on any U.S. Government list of prohibited or restricted parties.
You also will not use Birch Coffee Properties for any purpose prohibited
by U.S. law, including the development, design, manufacture or production
of missiles, nuclear, chemical or biological weapons. You acknowledge and
agree that products, services or technology provided by Birch Coffee are
subject to the export control laws and regulations of the United States.
You shall comply with these laws and regulations and shall not, without
prior U.S. government authorization, export, re-export, or transfer Birch
Coffee products, services or technology, either directly or indirectly, to
any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil Code §1789.3, you
may report complaints to the Complaint Assistance Unit of the Division of
Consumer Services 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.
Entire Agreement. The Agreement is the final, complete and exclusive
agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between the parties with
respect to such subject matter.
End of Agreement