Terms of Use

Web Site Terms and Conditions of Use

General

Welcome to the Birch Benders (as used herein “we,” “us,” or “our” or “Hometown Food”) website located at domain www.birchbenders.com (collectively, the “Website” or “Birch Benders Website”). By using the Website, you acknowledge that you have read and agree to these terms and conditions (“Terms of Use”), the Privacy Policy, and any terms and conditions on subdomains of the Website that govern particular offers or features (e.g., contests and registration) (each collectively forming the “Agreement”) all of which collectively govern your use of and access to all of the Website and any and all content, data and information contained therein.

The Website is intended for use only by persons at least 18 years of age residing in the United States, its territories and possessions. The Website is not intended for use by persons under the age of 13 under any circumstances, and if you are under 13 you should not use the Website. These Terms of Use, along with the Privacy Policy, govern your use of the Website. If you do not agree to the Terms of Use, you should not use the Website.

YOUR USE OF ANY HOMETOWN FOOD WEBSITE CONSTITUTES YOUR UNCONDITIONAL AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT, AS MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME BY HOMETOWN FOOD, IN ITS SOLE DISCRETION. YOU ARE RESPONSIBLE FOR PERIODICALLY REVIEWING THESE TERMS AND ANY CHANGES HERETO WHEN USING THE WEBSITE. IN THE EVENT OF ANY INCONSISTENCY OR CONFLICT BETWEEN THESE TERMS OF USE, THE PRIVACY POLICY AND ANY THE ADDITIONAL TERMS AND CONDITIONS, THE FOLLOWING ORDER OF PRECEDENCE SHALL CONTROL: (1) TERMS OF USE, (2) PRIVACY POLICY AND (3) ADDITIONAL TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE OR ACCESS ANY HOMETOWN FOOD WEBSITE.

YOU MUST BRING ANY CLAIM AGAINST HOMETOWN FOOD IN ACCORDANCE WITH THE ARBITRATION PROVISIONS HEREIN AND, IN ANY EVENT, WITHIN 60 DAYS OF THE EVENTS GIVING RISE TO SUCH CLAIM.

As used in this Agreement, “you” or “your” means the individual, corporation or other entity that uses the Hometown Food Website or any portion thereof in any manner. Nothing herein permits you to use the Hometown Food Website or any services offered or information contained therein without first obtaining any rights or consents necessary, as described herein, as set forth in another contract or as proffered by any applicable law.

Modifications of This Agreement

We reserve the right to change, modify, amend and/or update this Agreement at any time with or without prior notice. Your use of any Hometown Food Website following any such changes, modifications, amendments and/or updates constitutes your unconditional agreement to follow and be bound by this Agreement as so changed, modified, amended and/or updated. You are responsible for reviewing this Agreement each time you use or access any Hometown Food Website.

Links

Hometown Food is not affiliated or associated with the sponsors, owners or producers of any third-party websites linked to or from any Hometown Food Website. These linked sites are not under our control and we explicitly disclaim any responsibility for the accuracy, content or availability of the information products, and/or services found on or through such third party sites. We do not endorse and have not taken any steps to confirm the accuracy or reliability of any of the information, products or services contained on or through such third-party sites. We do not make any representations or warranties as to the security of any information you might give on any third-party site.

Unless otherwise explicitly specified on a Hometown Food Website, the information on all Hometown Food Websites is intended solely for use and access by persons residing in the United States, its territories and possessions. Hometown Food controls and operates its Websites from offices located in the United States and makes no representations or warranties that the information, products or services contained on any of the Hometown Food Websites is appropriate for use or access in other locations. Anyone using or accessing any of the Hometown Food Websites from other locations assumes all responsibility for compliance with local United States laws, if and to the extent applicable, in connection with the Website.

Your Limited License to Use the Hometown Food Websites

Unless otherwise explicitly specified herein, all materials that are included in or are otherwise a part of any Hometown Food Website are copyrights, patents, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Hometown Food or by third parties who have licensed their materials to Hometown Food and are protected by U.S. and international intellectual property laws. The compilation (i.e., the collection, arrangement and assembly) of all materials on any Hometown Food Website is the exclusive property of Hometown Food and is protected by U.S. and international copyright laws. Except as solely provided in the next paragraph, no material from any Hometown Food Website may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way.

Subject to your compliance with this Agreement (including without limitation the Acceptable Use Guidelines herein) Hometown Food grants to you a non-exclusive, non-transferable, revocable, limited license, without the right of sublicense, to access and use the Hometown Food Websites solely in accordance with the terms of this Agreement and the Privacy Policy. You may download one copy of the materials on any single computer for your personal, non-commercial home use only, provided that: (a) you keep intact all copyright and other proprietary notices; (b) you do not use the materials in a manner that suggests an association with any of our products, services or brands; and (c) you make no modifications to the materials.

At times, you may be invited or independently submit Content to the Website. As used in this Agreement, “Content” means any and all information or materials, including text, personal information, images, logos, graphics, commentary, literary works and any intellectual property rights contained therein, that you upload, submit, or otherwise provide or view in connection with your use or your agents’ use of the Website.

You hereby grant Hometown Food a worldwide, royalty-free, non-exclusive, sublicensable, transferable license to perform such acts with respect to the Content as may be necessary, in Hometown Food sole discretion, in connection with the conduct of Hometown Food’s business or its administration of the Website, including the right to: (i) deliver Content in accordance with the preferences you set using your account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Hometown Food Website and any administration thereof; and (iv) utilize Content to test Hometown Food’s internal technologies and processes.

By submitting Content, you certify that you own the Content, or otherwise have the right to freely redistribute the Content without limitation, and the submission of any Content will not violate or infringe upon the rights of any third party, including without limitation, copyrights, patents, trademarks, trade secrets, right of publicity or other proprietary rights. You further certify and agree that any submission by you will not be defamatory, obscene, in violation of law, or otherwise contain harmful or destructive content.

Hometown Food assumes no liability regarding any dispute over submitted Content ownership or infringement. If notified about a dispute over ownership or other rights violation, Hometown Food will remove the Content in question in a timely manner without notice.

If you believe that Content on the Website is your proprietary material and is being used without authorization, please notify us as set forth in the User Submissions, Postings and Email Communications section below.

Acceptable Use Guidelines

All Hometown Food Websites and their contents are intended solely for, and may be used solely for, personal, non-commercial purposes.

In addition, you agree not to:

Use or access any Hometown Food Website for any purpose that is unlawful or prohibited by this Agreement;

Use or access any Hometown Food Website in a manner that could damage, disable, overburden, or impair any Hometown Food server or the networks connected to any Hometown Food server or the server of its service provider;

Use or access the Hometown Food Website by any automated means (e.g., crawlers, scrapers, bots), including to alter the order or appearance of a Hometown Food Website in any search engine results;

Use or access the Hometown Food Website to engage in, further or promote any illegal activity;

Use or access any Hometown Food Website in a manner that would interfere with any third party’s use and enjoyment of any Hometown Food Website or any other rights of a third party; or

Attempt to gain unauthorized access to accounts, computer systems or networks connected to any Hometown Food server or the server of its service provider through hacking, password mining or any other means.

Registration, Authorization and Access

To enter certain portions of the Hometown Food Websites, you may be required to submit an on-site registration form, which may include your name, address, email address, age, birthdate and/or gender (“Application”). You agree that for the Application, and at all times thereafter, to: (a) provide current, complete, true and accurate information; (b) maintain and update your information as required to keep it current, complete and accurate; and/or (c) provide additional information about yourself as may be requested by Hometown Food from time to time. Please note that Hometown Food may use any Application information in accordance with its Privacy Policy.

Hometown Food will review the Application and determine, in Hometown Food’s sole discretion, whether to accept the Application. Hometown Food shall have the right, in its sole discretion, to refuse or restrict anyone from access to any or all of the Hometown Food Websites at any time for any reason. Upon acceptance of your Application by Hometown Food, you may select your user ID and password (collectively “Password”) for access to and use of the applicable portion of the Hometown Food Website.

User IDs/Passwords

Hometown Food reserves the right to require you to periodically change your password. You agree to use your best efforts to maintain the security of your Password. You shall not disclose your Password to anyone else, and you shall not use anyone else’s Password. You agree to notify Hometown Food immediately about any unauthorized use of your Password or any breach of security. You further agree that Hometown Food shall not be responsible for your failure to comply with this Section or any loss or damage arising out of, or related to, your use of your Password by you or anyone other than Hometown Food.

Information About Health and Fitness

Certain information presented on the Website may be intended to provide general health, nutrition and fitness information. This information is not intended to be a substitute for professional medical advice. You should consult your doctor or other health care professional for advice/services relating to health, nutrition and fitness, including before undertaking any new diet, nutritional or fitness program. Advance consultation with your physician is particularly important for minors, or if you are pregnant, nursing, or have health problems. Never disregard professional medical advice or delay in seeking it because of something you have read on this Website.

Disclaimer

ALL HOMETOWN FOOD WEBSITES ARE PROVIDED BY THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. HOMETOWN FOOD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF ANY HOMETOWN FOOD WEBSITE OR THE INFORMATION OR MATERIALS INCLUDED ON ANY SUCH WEBSITE. HOMETOWN FOOD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, SYSTEM OPERATION AND FREEDOM FROM COMPUTER VIRUS. HOMETOWN FOOD DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN ANY HOMETOWN FOOD WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY HOMETOWN FOOD WEBSITE OR THE SERVER THAT MAKES ANY HOMETOWN FOOD WEBSITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS INCLUDING VIRUSES. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON ANY HOMETOWN FOOD WEBSITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF ANY HOMETOWN FOOD WEBSITE, THAT YOUR USE IS AT YOUR SOLE RISK AND YOU BEAR RESPONSIBILITY FOR ANY DEFECTS IN THE HOMETOWN FOOD WEBSITES.

EXCEPTION: IN CERTAIN STATES, THE LAW MAY NOT ALLOW DISCLAIMER OR EXCLUSION OF WARRANTIES. SO THE ABOVE DISCLAIMER MAY NOT BE APPLICABLE.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL HOMETOWN FOOD OR ANY OF ITS AFFILIATES, SUBSIDIARIES, SHARE HOLDERS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR ACCESS TO OR INABILITY TO USE OR ACCESS ANY HOMETOWN FOOD WEBSITE, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF HOMETOWN FOOD HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU, AND NOT HOMETOWN FOOD, SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT WILL HOMETOWN FOOD BE LIABLE FOR ANY DAMAGES IN EXCESS OF ONE HUNDRED UNITED STATES DOLLARS ($100.00).

User Submissions, Postings and Email Communications

All submissions, postings and email communications to or through the Website shall be subject to the Hometown Food Company Privacy Policy and the definition of “Content” as detailed in these Terms of Use.

Online Copyright Infringement Notification Policy

Please direct all notices or counter-notices to: Chief Marketing Officer at Hometown Food. Inquiry1@hometownfoodcompany.com (“Designated Agent”).

If you believe that any Hometown Food Website contains material that constitutes copyright infringement, please notify Hometown Food immediately.

To be effective, the notification must be in writing and contain the following information: (i) identification of the material that is claimed to be infringing and that is to be removed or access disabled, including information sufficient for us to reasonably locate the identified material, including the URL in the body of your notice so that we may quickly locate the content; (ii) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; (iii) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf (“Complainant”); (iv) Your physical address, telephone number, and email address; and (v) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest. Upon proper submission, Hometown Food will remove the disputed Content, subject to the procedures outlined in the Digital Millennium Copyright Act or other applicable law.

Indemnification

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HOMETOWN FOOD AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, SHARE HOLDERS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, RELATED IN ANY WAY TO (I) YOUR USE OF ANY HOMETOWN FOOD WEBSITE, (II) ANY OF YOUR CONTENT, AND/OR (III) YOUR BREACH OF ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.

Term and Termination

Hometown Food shall have the right to terminate your access to, and use of, any or all Hometown Food Websites immediately in its sole discretion. Hometown Food also reserves the right to investigate suspected violations of this Agreement, including without limitation any violation arising from any submission, posting or emails you make or send to any Hometown Food Website.

Upon termination of this Agreement, all rights granted to you under this Agreement will cease immediately, and you agree that you will: (a) immediately discontinue use of any applicable Hometown Food Websites; and (b) as applicable, pay any amounts owed to Hometown Food in full within thirty (30) days from the date of such termination.

Applicable Laws

This Agreement shall be governed by and construed under the laws of the State of Illinois, without regard to conflicts of laws principles. YOU AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY HOMETOWN FOOD WEBSITE OR THE USE OR ACCESS THEREOF SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED WITHIN COOK COUNTY, ILLINOIS. YOU FURTHER AGREE TO SUBMIT TO THE PERSONAL JURISIDICTION AND VENUE OF THE COURTS LOCATED WITHIN COOK COUNTY, ILLINOIS, EXCEPT AS OTHERWISE DESCRIBED IN THE ARBITRATION PROVISION PARAGRAPH BELOW.

Commencement of Actions; Arbitration

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THIS AGREEMENT, ANY HOMETOWN FOOD WEBSITE OR USE THEREOF, MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES. Within that year, you agree to notify Hometown Food of your claim by sending a notice to the following agent explaining the basis for the claim: Chief Marketing Officer at Hometown Food. Inquiry1@hometownfoodcompany.com. PLEASE NOTE THIS LIMITATION MAY NOT APPLY TO YOU DEPENDING UPON YOUR STATE OF RESIDENCE.

All disputes, claims or controversies arising out of or relating to these Terms of Use or the Hometown Food Website will first be raised for informal resolution. Any such disputes, claims or controversies that are not resolved by mutual agreement will be resolved by binding arbitration, on an individual basis, to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Chicago, Illinois before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in these Terms of Use. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Use and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Use, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY CLAIM TO SUCH DAMAGES. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding.

Any issues or challenges relating to the arbitrators’ jurisdiction and arbitrability to the arbitrator will be governed by Rule 11(c) of the JAMS Comprehensive Arbitration Rules and Procedures.

Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

Miscellaneous

The failure of Hometown Food to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit Hometown Food’s rights with respect to such breach or any subsequent breach. Neither the course of conduct between the parties nor trade practice shall act to modify this Agreement. Hometown Food may assign its rights and duties hereunder to any party at any time without any notice to you. This Agreement may not be assigned by you without Hometown Food’s prior written consent. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement may not be modified except in writing, signed by both parties.

All trademarks and other intellectual property on this Website are owned by Hometown Food Company, Toledo, Ohio