Last Updated December 22, 2020
- The Categories of Personal Information We Collect
We collect identifying information about you and your household that you provide directly to us. When you sign up to become a customer, purchase a subscription, gift box or gift card, enter a contest, promotion, or sweepstakes, complete a survey, or sign up to receive our recipes or marketing or advertising information concerning our Services or Products, you will be required to provide us with personal contact information about yourself that we will use to communicate with you for our business purposes, including for marketing and advertising. Contact information includes your name, e-mail address, mailing address, and phone number. We do not collect any contact information from you when you use the Products or Services unless you provide us with the contact information voluntarily. We use the contact information to communicate with you including to process transactions; offer and provide you with the Services and Products; to solicit your feedback and inform you about our Products, Services, upcoming events, recipes, and special promotions; to offer, administer and process contests, promotions, and sweepstakes; and to improve our Products and Services.
1.2. Customer Information In Our Business Records
This information comprises any information that identifies, relates to, describes or is capable of being associated with you in our records. When you sign up for a subscription or purchase a gift box or gift card, you will be required to provide payment related information that we use to charge for our Services and Products, including a debit card number and credit card number. All transactions are processed by our third-party payment vendors. We do not collect, store, or maintain any credit card or debit card information after the transaction is processed and verified. Instead, it is transiently collected, shared with and processed through these third-party payment vendors. We do not share your credit or debit card information with any vendors, other than our third-party payment vendors.
Additional information about yourself or your household that you voluntarily provide to us, such as your personal interests and Product and Service preferences, may also be collected and retained in our business records. We use this information to fulfill the purpose for which it was provided and to market and sell you Products and Services.
1.3. Demographic Information
This includes demographic information, such as age or gender, that you may voluntarily provide to us, including when we ask you to participate in a survey. We may also collect demographic information about you and your household from third parties, such as age and gender, to market you Products and Services.
1.4. Commercial Information
This information includes information concerning the Products or Services you purchased and your purchasing history and tendencies.
1.5 Educational Information
We may collect educational information about you and your household from third parties to market you Products and Services.
1.6 Internet and Electronic History
In addition to contact information and billing or other Commercial Information you provided us with directly, we and third party online advertisers may collect additional Personal Information, including online identifiers, by indirect automated means (such as Cookies) related to your usage of our websites. Such Personal Information may include:
From Your Activity When You Visit Our Web Site. Information that we automatically collect when you use the Services, such as your IP addresses, browser type and language, referring and exit pages and URLs, date and time, amount of time spent on particular pages, what sections of the Website you visit, order information, and similar information concerning your use of the Products and Services. We and third party online advertisers use your browsing activity to provide you with marketing and advertising materials that may be of interest to you.
1.7 Your Consumer Preferences
We may accumulate the information you provide to develop a consumer profile concerning your behavior and interests, including for marketing and advertising purposes, and to improve our Products and Services.
- Sharing Of Your Personal Information With Third Parties
We collect Identifiers, including your contact information, and other Personal Information about you and your household, including Commercial Information, Educational Information and Demographic Information, from third party advertisers, market intelligence companies and data cooperatives who share this information with us. We share Identifiers, including your contact information, and certain Commercial Information, including your purchasing history, collected by us with third party advertisers, market intelligence companies and data cooperatives. Your internet and browsing activity, including your IP address, may also be shared with third party online advertisers.
- How We Use and Share the Personal Information With Our Service Providers
We employ service providers, which are other companies and individuals who are contracted to perform functions on our behalf, including to administer our contest, promotions and sweepstakes and to send you marketing materials. Examples include food services, delivery services, marketing assistance, information technology support, credit card processors and customer service. These service providers will have access to the Personal Information only as necessary to perform their functions on our behalf.
In an ongoing effort to better understand our users and our Services, we might analyze the Personal Information in aggregate de-identified form in order to operate, maintain, manage, and improve the Services and Products. This aggregate information does not identify you or your household personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our Products and Services to current and prospective business partners and to other third parties for other lawful purposes.
As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution, or similar event, the contact information, the Commercial Information, and the other Personal Information may be part of the transferred assets.
To the extent permitted by law, we may also disclose Personal Information when required by law, court order, or other government or law enforcement authority or regulatory agency, or whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of Smoodies or others.
- Accessing and Modifying Personal Information and Communication Preferences, Including Requests to Unsubscribe
If you have registered for the Services or Products, you may access, review, and make changes to your Personal Information by following the instructions found on the Platform. In addition, you may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any Smoodies marketing email. You cannot opt out of receiving transactional e-mails related to your account because we need to provide those emails in order to provide you with Services and Products.
You may submit requests concerning our collection and use of your Personal Information by contacting us by telephone, interactive web form or email (see Section 10 below for our contact information).
- How We Protect Your Personal Information
We take commercially reasonable steps to protect the Personal Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases, nor can we guarantee that the information you supply will not be intercepted while being transmitted to and from us over the Internet. In particular, e-mail sent to or from the Platform may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
- Important Notice to Non-U.S. Residents
The Platform and the Services are operated in the United States. If you are located outside of the United States, please be aware that any information you provide to us will be transferred to the United States. By using the Services or Products and/or providing us with any information, you consent to this transfer.
- External Websites
- How to Contact Us
- Access by Persons With Disabilities
Persons with disabilities who need assistance accessing this policy may contact us as provided for in section 10, and depending on your individual needs, the company will grant reasonable requests to furnish this policy in an alternative format.
- Description and Use of the Platform
Smoodies delivers frozen organic certified ready-to-blend smoothie kits that consist of Fruits, Vegetables, Seeds, Protein Powders, Nut-butters, Spices and Other ingredients . Through our Platform, we offer package and subscription Services, where we deliver single-serve packs of frozen ingredients you need to make a delicious blend, in exactly the right proportions as well as other Products. We’ve designed our Services to taste great, save prep time, and reduce unnecessary waste.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Smoodies account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
- Community Guidelines
Smoodies’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Website or the Platform, you hereby agree to comply with these community rules and that:
- You must be the age of majority in their jurisdiction and capable of entering into binding contracts;
- You will not use the Website or the Platform for any unlawful purpose;
- You may not use the Services to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
- You will not upload, post, e-mail, transmit, or otherwise make available any User Content that:
- is false, deceptive, misleading, deceitful, or misinformative;
- Infringes any copyright, trademark, trade secret, right of publicity, or other proprietary rights of any person or entity;
- is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;
- You will not access or use the Website or the Platform to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website or Platform, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Website or the Platform; and
- You will not interfere with or attempt to interrupt the proper operation of the Website or the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords through hacking, password or data
Please let us know about inappropriate content. If you find something that violates our community guidelines, let us know, and we’ll review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Services, without notice, and remove any User Content that does not adhere to these guidelines.
- Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Smoodies account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Smoodies account, you also consent to receive electronic communications from Smoodies (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Terms of Sale
5.1 Subscriptions; Continuous Subscriptions; Cancellation Policy
Subscriptions. We offer different subscription plans for our Products (each, a “Subscription”). For more information about our Subscriptions, please visit the Pricing page on our website and our FAQs. Note that we do not currently deliver Products to every location, so please visit our Pricing page to see if we deliver to your area.
Continuous Subscriptions. Smoodies Subscription Service. The Smoodies Subscription Service is an automatic recurring subscription service. As part of the Smoodies Subscription Service, we offer a number of subscription options that you choose from (each, a “Plan”). Each week (excluding those you choose to skip in accordance with the Agreement) you will receive a package from Smoodies including the contents of your chosen plan (each a “Delivery”). You can find specific details regarding your plan and the Smoodies Service (“Account”) by accessing the Site and accessing your Account details. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) SMOODIES (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTOMATICALLY AUTHORIZED TO CHARGE YOU ON A WEEKLY OR MONTHLY BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT SMOODIES WILL NOT OBTAIN ANY ADDITIONAL AUTHORIZATION FROM YOU FOR SUCH AUTOMATIC, RECURRING PAYMENTS. YOU MAY SKIP YOUR WEEKLY ORDER AS OFTEN AS YOU’D LIKE BY MANAGING YOUR DELIVERY SCHEDULE ON YOUR DELIVERY SCHEDULE PAGE.
Cancellation Policy. CANCELLATION POLICY. YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL. AFTER YOUR FIRST ORDER, YOU MAY CANCEL IN YOUR ACCOUNT SETTINGS OR BY EMAILING US AT SMOODIES EMAIL AND FOLLOWING THE INSTRUCTIONS YOU RECEIVE. YOU MAY CANCEL AT ANY TIME, BUT IF YOU CANCEL AFTER THE WEEKLY CUTOFF (SUNDAY AT 6 PM ET), YOU WILL STILL RECEIVE, AND BE CHARGED FOR, THE NEXT WEEK’S SHIPMENT. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION.
In the event you cancel your Subscription, please note that we may still send you promotional communications about Smoodies, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
5.2 Gift Box
You have the ability to purchase a gift box, which may be purchased for other recipients through the Sites (“Gift Box”). Gift Boxes are eligible for purchase if the recipient resides within our delivery zone.
When you purchase a Gift Box, we will send an email to the Gift Box recipient that can be used to redeem the Gift Box. Unless otherwise specified in connection with a specific promotion, the Gift Box recipient will not be required to create a Smoodies account in order to access the Sites and redeem the Gift Box. Gift Box purchases are not refundable or redeemable for cash, unless otherwise required by applicable law. Gift Boxes do not expire.
5.3 Gift Cards
5.3.1 Redemption; Balance.
Smoodies may provide gift cards from time to time in connection with specific promotions (each, a “Gift Card”). The terms and conditions applicable to Gift Cards will be those set forth on the Gift Card or those terms on the Sites that are specifically referred to in connection with such Gift Card or promotion. Unless otherwise expressly indicated, Gift Cards may only be used to redeem subscription services from Smoodies. Gift Cards may not be reloaded, resold, transferred or valued or redeemed for cash, unless otherwise required by applicable law. No portion of the balance on your Smoodies Gift Card may be transferred to another Smoodies account.
Our Smoodies Gift Cards may require the recipient to set up a Smoodies account. In such cases, the recipient of a Gift Card will be required to provide a credit card (or other approved payment method) when redeeming the Smoodies Gift Card to cover recurring subscription fees that exceed the amount of the Gift Card in addition to any applicable taxes and other charges. For more information about our subscriptions, cancellation policy and recurring charges please refer to the respective sections in our Terms & Privacy. No taxes are charged on the purchase of Smoodies Gift Cards. Applicable taxes may be charged when Smoodies Gift Cards are redeemed. Certain products, including those that are not available on a subscription basis, may not be available for purchase with a Smoodies Gift Card.
Unless otherwise expressly indicated, purchases made with your Gift Card will be deducted from your Smoodies Balance. Any unused Smoodies Balance will remain associated with your Smoodies account, but if a purchase exceeds your Smoodies Balance, you must pay the remaining amount with a credit card (or other approved payment method).
5.3.2 Limitations; Restrictions; Risk of Loss.
Gift Cards are non-refundable. We are not responsible for any lost, stolen or destroyed Gift Card or use by someone other than yourself or the intended Recipient. These Gift Card terms are subject to change without notice at any time and in our sole discretion. Smoodies Gift Cards are void where prohibited.
Use of Gift Cards for unauthorized advertising, marketing, sweepstakes or other promotional or commercial purposes is strictly prohibited. Smoodies Gift Cards may not be combined with certain promotional offers. We reserve the right to refuse Smoodies Gift Card sales to anyone and limit how many Smoodies Gift Cards an individual may purchase or redeem. If we suspect that a Smoodies Gift Card is obtained, used or applied to a Smoodies account fraudulently, unlawfully or otherwise in violation of these Gift Card Terms, we reserve the right to void Smoodies Gift Cards or any component of your Smoodies Balance, close your account, and bill alternative forms of payment.
Unless otherwise expressly indicated, Gift Cards do not expire or decrease in value if you do not use them. We do not charge activation, service charges or dormancy fees.
5.3.4 Promotional Cards.
From time to time, you may be awarded with or receive “rewards,” “promotional gift cards”, “credits”, “vouchers” or similar physical or electronic gift cards that are given away free with a purchase, or distributed as a reward, incentive, or as part of a marketing, promotional or customer loyalty program (collectively, “Promotional Cards”). All terms and conditions that are affixed to or otherwise provided in connection with such Promotional Cards shall apply, including any expiration dates, delayed activation dates or any other additional restrictions or exemptions as provided on the Promotional Cards themselves or any packaging or other written materials that accompany such Promotional Cards or any applicable law. To the extent not provided in connection with such terms and conditions, the Gift Card Terms shall apply to such Promotional Card.
5.4 Free Trials
From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration.
ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTION 5.1 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
5.5 Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Smoodies account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
5.6 Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Subscription, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of Products, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies set forth in Section 5.1, as applicable.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients or entire items) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at SMOODIES EMAIL.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
5.8 Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third party courier. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for confirming that the Products you receive are frozen. Each box is carefully packaged to stay frozen unit the time of delivery. To maintain the highest quality and integrity of your cups after delivery, you should immediately place the items into frozen storage (< 0° F) when you receive them. You should always inspect your delivery to confirm that cups arrive frozen. If at any time you believe that the Product in your delivery is not suitable for consumption, contact us at SMOODIES EMAIL.
To maintain the quality and integrity of the Products, we recommend that you immediately freeze all Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on frozen food storage and food safety. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe handling, storage, cooking, use and consumption of the Products following delivery. We recommend that you follow the USDA’s instructions on safe food handling.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door. Our Products are packaged with insulated liners and dry ice and are designed to be delivered frozen under normal delivery condition. However, depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for proper storage of your Products prior to consumption. In certain areas, you may be able to provide additional delivery instructions when setting up your Smoodies account, such as requesting that your delivery be left with a doorman or neighbor. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
If you would prefer that someone have to sign for the delivery, please let us know the specific instructions. In such cases, if you, your doorman, your neighbor, or your alternate receiver is not present at the time of delivery, we will use commercially reasonable efforts to contact you and reschedule the delivery (in which case our standard redelivery fee shall apply). If we are unable to reschedule the order for any reason, the order will be canceled and you will be charged the applicable fee for the order.
In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your Product is not feasible, we will cancel your delivery for the period so affected and issue you a credit or refund of the purchase price for that delivery.
5.10 No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
5.11 Returns and Refunds
If you are dissatisfied with a Product or ingredient for any reason, please contact us at firstname.lastname@example.org within seven (7) calendar days of the date you received the Product and we will either replace the Product at our expense or, depending on the circumstances, provide you a full or partial credit or refund of the purchase price for that item. We may arrange a return or require photographic documentation of any Product with which you are dissatisfied before we provide you a replacement, credit or refund.
- License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Smoodies logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Smoodies or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Smoodies or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Smoodies or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6.1 Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent:
Address: Smoodies, Inc.,
Email: SMOODIES EMAIL
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Smoodies,” the Smoodies logo and any other Smoodies Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Smoodies and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any meta tags or other “hidden text” utilizing “Smoodies” or any other name, trademark or Product or service name of Smoodies without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Smoodies and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Smoodies.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Smoodies or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Smoodies logo or other proprietary graphic of Smoodies to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Smoodies trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Smoodies makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
- Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Smoodies is not responsible or liable in any manner for such interactions or Third-Party Content.
- User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from such user and Smoodies;
- Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
- Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;
- Develop any third party applications that interact with User Content or the Sites without our prior written consent;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
- Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms
- User Content
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts Smoodies or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Smoodies employee or paid blogger);
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Smoodies or others to any harm or liability of any type.
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
- Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Smoodies’s Facebook page, Instagram page or Twitter feed), you hereby grant Smoodies a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Smoodies through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Smoodies to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Smoodies, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Smoodies. Smoodies shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Smoodies, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Smoodies Parties”), from and against all actual or alleged Smoodies Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Sites or Products provided to you. You agree to promptly notify Smoodies of any third party Claims and cooperate with the Smoodies Parties in defending such Claims. You further agree that the Smoodies Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Smoodies.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE [AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.]WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SMOODIES DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
- Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMOODIES OR ANY OF THE OTHER SMOODIES PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM SMOODIES, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SMOODIES’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SMOODIES AND THE OTHER SMOODIES PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE SMOODIES MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCT, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE SMOODIES AND THE OTHER SMOODIES PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE SMOODIES AND THE OTHER SMOODIES PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH SMOODIES PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
ACCESS TO THE SMOODIES OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF SMOODIES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW
- Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time and without liability therefor
- Arbitration and Dispute Resolution
Most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing us (SMOODIES EMAIL).
In the event that we are not able to resolve a dispute, we each agree that any and all disputes, controversies, or claims arising under, arising out of, or relating in any way to this agreement, or the contractual relationship established by this agreement (whether in contract, tort, or under any statute, regulation, ordinance, or any other source of law) shall be resolved on an individual basis through binding arbitration administered by the American Arbitration Association, in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://adr.org/consumer) (except that you may assert individual claims in small claims court, if your claims qualify). You and Smoodies each expressly waive any right to trial by jury and the right to participate in a class action lawsuit or class-wide arbitration. Neither you nor Smoodies shall be permitted or entitled to join or consolidate claims by or against others, or arbitrate or otherwise participate in any claims as a class member, class representative, or in any other representative capacity.
The arbitration will be conducted by a single, neutral arbitrator and will take place in the county or parish in which you reside, or another mutually agreeable location, in the English language. All issues are for the arbitrator to decide, including (but not limited to) issues relating to the scope and enforceability of this agreement to arbitrate and the arbitrability of any dispute between you and Smoodies. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. At your request, hearings may be conducted in person or by telephone, and the arbitrator may provide for submitting and determining motions on briefs, with or without oral hearings. Smoodies agrees that, upon request, it will pay a consumer’s filing fee for the arbitration.
For the benefit of the parties, all aspects of the arbitration proceeding, including (but not limited to) the transcripts of the hearing, the transcript of any deposition, and all documents produced or used during the arbitration proceeding, will be strictly confidential.
The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. If a court decides that any provision of this paragraph is invalid or unenforceable, that provision will be severed and the other parts of this paragraph (and the remainder of these terms) will continue to apply, but in no case shall either you or Smoodies be permitted to participate in a class action lawsuit or class-wide arbitration.
These Terms constitute the entire agreement between you and Smoodies relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Smoodies. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Smoodies’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.