Welcome to EDIBLE ARRANGEMENTS® websites. Edible Arrangements, LLC, and its affiliates, and their respective affiliates (collectively, "Edible", "we", "us" or "our") owns and/or operates the <www.EdibleArrangements.com>, <www.dippedfruit.com>, <www.edible.com>, <www.fruitflowers.com>, and <www.eafg.net>. These websites, together with other websites, mobile sites, and mobile applications owned, operated, or controlled by Edible, are referred to herein, individually and collectively, as the “Website”. Edible provides the Website and our products and services to you subject to the following conditions.
THESE TERMS INCLUDE (1) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF YOUR RIGHT TO PURSUE CLAIMS AS CLASS ACTIONS AND A WAIVER OF YOUR RIGHT TO A JURY TRIAL; (2) A LIMITATION OF YOUR RIGHT TO BRING CLAIMS AGAINST US MORE THAN 1 YEAR AFTER THE RELEVANT EVENTS OCCURRED; AND (3) THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS. SEE BELOW FOR DETAILS ON THESE PROVISIONS.
These Terms set forth the entire, final and exclusive agreement between Edible and you with respect to your use of, and access to, the Website and any and all content, data, information and materials contained therein and transactions completed thereon, and supersede all previous oral and written terms, representations, or understandings concerning your use of, and access to, the Website and any and all content, data, information and materials contained therein and transactions completed thereon. These Terms also apply to any other aspects of your relationship with us. If there is a conflict amongst the provisions in the various Terms, the more specific provision governs.
Edible makes reasonable efforts to provide accurate and timely information on the Website. While we believe, the information is reliable, we provide no warranty that the information is always up to date or contains all the relevant information available.
You must be 18 years or older to use, register for an account, transmit/submit/post any content, material or personally identifiable information or place an order on the Website. If you are under 18 or under the legal age to enter enforceable contracts in the jurisdiction from which you are accessing the Website, you may use the Website only with consent of a parent or guardian. By submitting information or content on the Website you represent that you meet this age restriction and Edible provides you access to the Website subject to your compliance with these Terms.
Please see individual product pages and our Products Policy here, which is incorporated into these Terms by reference and also governs your purchase of products through the Website, for more information on the terms and conditions of sale for our EDIBLE® products. Prices are in US dollars unless otherwise noted. Edible reserves the right to change prices on any product or products and to discontinue any services or products provided through the Website at any time.
FRANCHISEES ARE INDEPENDENT CONTRACTORS
The EDIBLE ARRANGEMENTS® franchisees (the “Franchisees”) are independently owned and operated businesses and are independent contractors. The Franchisees are not our agents, partners, or employees. They do not have any right to speak for us or on our behalf, or bind us to any contracts or obligations. We are not responsible for any of the acts or omissions of the Franchisees, including, without limitation, in connection with their provision of products or services to you or fulfillment of orders placed by you through the Website, or in an EDIBLE ARRANGEMENTS® store.
All content included on the Website, such as text, graphics, logos, button icons, images, audio clips, photographs, illustrations, digital downloads, data compilations, and software, and the compilation (including the collection, selection, assembly and arrangement) of such materials is the property of Edible or its licensors or content suppliers and protected by copyright, trademark and other applicable laws in the United States and other jurisdictions.
EDIBLE ARRANGEMENTS®, EDIBLE®, EDIBLES®, and the EDIBLE ARRANGEMENTS® Fruit Basket Logo are registered trademarks of Edible. This is not intended to be a complete list of all of Edible’s trademarks, and Edible owns or controls the proprietary rights in trademarks not listed here and in one or more countries outside the United States. The ediblearrangements.com, edible.com, dippedfruit.com, fruitflowers.com and eafg.net domain names and the domain names of Edible’s other websites are the property of Edible. All EDIBLE ARRANGEMENTS® trademarks, copyrights, trade dress and/or intellectual property used on the Website may not be used in connection with any product or service that is not offered for sale or otherwise provided by Edible or by its Franchisees, or in any manner that is likely to cause confusion among customers, or in any manner that disparages or defames Edible or the Website. All other trademarks, services marks, logos, designs, and trade dress, not owned by Edible that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Edible.
LICENSE, LIMITATIONS ON USE AND WEBSITE ACCESS
Edible grants you a limited license to access the Website for normal browsing only, and to download (for caching purposes only) or print a copy of the materials on the Website for your personal use only provided that you: (a) keep intact all copyright and other proprietary notices; (b) do not use the material in a manner that would compete with, achieve commercial gain, or damage the goodwill associated with Edible; (c) do not use the material in a manner that suggests an association with any of our services, brands, or products (unless otherwise authorized in writing by Edible); and (d) do not make any modifications to the material. Except as expressly provided in this paragraph or as provided below entitled " Further Limitations on Use - Franchisee Areas," you may not download (other than page-caching), modify, copy, reproduce, republish, post, resell, upload, transmit or distribute material or any portion of it from the Website, except with express written consent of Edible. The limited-use license granted herein does not include any right for resale or commercial use of the Website or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. We may grant you, at our sole discretion, a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Website provided that: (e) you do not use the Edible Arrangements® logo or other proprietary graphic or trademark as part of the link without our express written permission; (f) the link does not portray Edible or their products or services in a false, misleading, derogatory, or otherwise offensive matter; (g) you do not use the link in a manner that would compete with or damage the goodwill associated with Edible; and (h) you do not use or post the link in a manner that suggests an association with any of our services, brands, or products (unless otherwise authorized in writing by Edible). To request our permission to create a hyperlink to the home page of the Website, please contact us at:
Edible Arrangements, LLC.
980 Hammond Drive, Suite 1000
Atlanta, Georgia 30328
In addition, you agree not to:
(a) Use or access the Website for any purpose that is unlawful or prohibited by these Terms;
(b) Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Edible, or our subsidiaries or our affiliates without express written consent of Edible;
(c) Use any meta tags or any other "hidden text" utilizing EDIBLE ARRANGEMENTS® trade names, trademarks, service marks or logos without the express written consent of Edible;
(d) Make any commercial or non-fair use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of Edible without the express written consent of Edible;
(e) Use or access the Website in a manner that could damage, disable, overburden, or impair any Edible server or the networks connected to any Edible server;
(f) Interfere with any third party's use and enjoyment of the Website;
(g) Attempt to gain unauthorized access to the Website, accounts, computer systems, or networks connected to any Edible server through hacking, password mining, or any other means;
(h) Sublicense any license granted in or to materials on the Website under these Terms (whether or not any of such acts are for commercial gain or advantage); or
(i) Reverse engineer, decompile, modify, or create derivative works from any software accessible by or on the Website unless specifically authorized in writing by the owner of the software to do so.
ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED.
MOBILE APPLICATION LICENSE
If you access our mobile application(s), then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (b) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (c) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (d) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (e) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (h) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (i) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Edible may make available for download certain application updates or upgrades to the application to update, enhance or further develop the application (“Application Updates”). The license granted herein allows you to download and use the Application Updates to update the Application on any device that you own or control. These Terms do not allow you to update devices that you do not own or control, and you may not make the Application Updates available over a network where they could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Application Updates, unless such copy is authorized in writing by Edible.
Edible may, at its discretion, automatically download Application Updates to your device. You agree to accept these Application Updates and to pay for any costs associated with receiving them. The application and Application Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the application and Application Updates. These laws include restrictions on destinations, end users and end use.
Apple and Android Devices
Mobile Service, Internet and Service Fees
Your use of our mobile application requires use of a mobile device and may require use of a wireless mobile data service, which must be obtained from your wireless carrier, and may also require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the application, including without limitation, administrative messages, service announcements, diagnostic data reports, and Application Updates, from Edible, your mobile carrier or third-party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the application. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the application, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the application.
The application may not work with all devices or all mobile carriers. Edible makes no representations that the application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the application, or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
YOUR EDIBLE REWARDS ® ACCOUNT
You may create an Edible Rewards ® account for your personal use to receive certain benefits of the program. Edible Rewards® accounts may not be used with any business account set up with Edible For Business concierge or the Edible Corporate Gifts website portal. To learn more about our Edible Rewards® program see www.ediblearrangements.com/rewards and for additional information regarding the terms and conditions of the Edible Rewards® program see https://www.ediblearrangements.com/rewards/terms-and-conditions.aspx.
OPEN AREAS AND FRANCHISEE AREAS
Most areas of the Website may be accessible without password access control ("Open Areas"). However, some areas of the Website are strictly reserved for Franchisee use and access only ("Franchisee Areas"). You agree not to attempt to gain unauthorized entry into the Franchisee Areas.
FURTHER LIMITATIONS ON USE - FRANCHISEE AREAS
The materials contained in the Franchisee Areas include items that are proprietary and include trade secrets of Edible that are not authorized for general distribution and that have substantial value due to their contents and secrecy (the "Franchisee Area Materials"). In addition to the restrictions set out in other provisions of these Terms and the Edible Arrangements® Franchise Agreement, you agree to:
(a) Maintain the security and confidentiality of the Franchisee Area Materials using at least the same standards you use to maintain the confidentiality of your own proprietary information and trade secrets, but in no case less than reasonable standards;
(b) Notify Edible immediately upon discovery or suspicion of compromise of the confidentiality of the any Franchisee Area Materials or any use of the Franchisee Areas Materials in violation of this Agreement; and
(c) Not disclose the Franchisee Area Materials or any information contained therein to any third parties, including without limitation, any employees or other agents, except as specifically authorized by Edible in writing.
Subject to all the restrictions set out in these Terms, including in Section above entitled "License, Limitations on Use and Website Access," you may download a single copy of the Franchisee Area Materials on the Website provided that: (a) you keep intact all copyright and other proprietary notices; (b) you do not use the Franchisee Area Materials in a manner that would compete with or damage the goodwill associated with Edible; c) you make no modifications to the Franchisee Area Materials, and (d) strictly control and limit dissemination and use of the Franchisee Area Materials, in accordance with any restrictions set out on the Franchisee Area Materials themselves and/or in any and all Additional Terms.
If you believe that any third party has violated these Termsor infringed any of Edible rights in the Website or the materials contained on the Website, including the Franchisee Area Materials, please follow the instructions below to contact our designated agent.
REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
Users may post or communicate reviews, comments, and other content; send communications; and submit suggestions, ideas, comments, questions, or other information on or through the Website (collectively, the "Submission"). You agree not to post e-mails or submit to or publish through the Website or otherwise make available on the Website any content (including any Submission), or act in a way, which in our opinion:
(a) is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, pornographic, racist, abusive, harassing, threatening, offensive, stalking, or otherwise injurious to the legal rights (such as rights of privacy and publicity) of third parties or objectionable;
(b) includes programs which contain or consist of software viruses, worms and/or "Trojan horses" or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
(c) amounts to political campaigning, commercial solicitation, "pyramid" or similar scheme; surveys, chain letters, junk email, mass mailings, or any form of "spam" (commercial or otherwise);
(d) seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
(e) infringes any intellectual property or other right of any entity or person, including violating anyone's copyrights or trademarks or their rights of publicity;
(f) violates any law or the Terms, or may be considered to violate any law or the Terms;
(g) transmits confidential or proprietary information under any contractual or other relationship (e.g., inside information, proprietary or confidential information received in the context of an employment or a non-disclosure agreement) or otherwise contains unsolicited proprietary ideas;
(h) advocates or promotes illegal activity;
(i) impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
(j) advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as specifically authorized on the Website;
(k) solicits funds, advertisers or sponsors;
(l) involves spoofing or otherwise impersonating any person or entity, including, without limitation, any other users or any of Edible's personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way, forging any TCP/IP packet header or any part of the header information in any e-mail or other posting, using a false e-mail address, or impersonating any person or entity;
(m) disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Website;
(n) copies any other pages or images on the Website except with appropriate authority;
(o) includes MP3, audio, or other media format files;
(p) amounts to "data warehousing" (i.e., using any web space made available to you as storage for large files which are only linked from other sites;
(q) disobeys any policy or regulations established from time to time regarding use of the Website or any networks connected to the Website; or
(r) contains links to other sites that contain the kind of content, which falls within the descriptions set out at in (a) to (q) above.
Edible reserves the right (but not the obligation) to review, remove or edit such content or any Submission which Edible in its sole discretion considers illegal, offensive, in violation of a third-party right or otherwise in violation of these Terms. Notwithstanding the foregoing, nothing contained herein shall be construed as the right of a party to review Edible’s products in a legal and nonoffensive manner. However, you acknowledge and agree that we do not regularly review posted Submissions or other content and that we are not under any obligation to control or monitor any Submissions published by you or any other Website users. Edible takes no responsibility and assumes no liability for the content of any Submission made or posted by you or any third party. Edible reserves the right to terminate your access to any or all of the Website and the ability to post or communicate a Submission at any time, without notice, for a violation of these Terms. Edible also reserves the right at all times to disclose any information as Edible deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Edible’s sole discretion. Always use caution when giving out any personally identifiable information in any Submission. Edible does not control or endorse the content, messages or information found in any Submission and, therefore, Edible is not liable or responsible with regards to the content of any Submissions.
If you do post or make a Submission, you hereby grant to Edible a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use your Submission (including, without limitation, to modify, publicly perform, publicly display, reproduce, and distribute such Submission) solely to display on the Website in connection with the product or service subject to the review without the requirement to make payment to you or to any third party or the need to seek any third party permission. Edible will not be required to treat any Submissions as confidential and will not be liable for any ideas for its business (including without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future Edible operations. You hereby grant Edible and Franchisees the right to use the name that you submit in connection with such Submission for its display on the Website in connection with the Submission. You represent and warrant that you own or otherwise control all of the rights to the Submission.
EMAIL AND OTHER COMMUNICATIONS AND SIGNATURES
In connection with your use of the Website, you consent to Edible recording any communication, electronic or otherwise, between you and Edible and retaining any Submission you make while using the Website. Please do not send any time-sensitive Submission or other communications by e-mail to Edible as we cannot be responsible for responding to any such communications.
Further, visiting the Website, sending us emails, and completing online forms, or signing up for promotional programs on-line or via a mobile device all constitute electronic communications between you and Edible. By engaging in these activities, you consent to receive such electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email, text message and on the Website, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE WEBSITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CONSENT TO TELEPHONE COMMUNICATIONS AND RECORDINGS
Recording of Communications. You acknowledge and agree that all communications between you and Edible may be recorded or monitored for quality assurance or other purposes subject to applicable law.
Consent to Telephone Communications. By providing us a telephone number, you agree to these Terms and consent to receive telephone communications from us, including via automated telephone dialing systems or pre-recorded messages, and even if your number is on a national, state, or local do-not-call list. For marketing communications, consent is not required for purchase. If you register for our text messaging program, you can expect to receive up to 6 autodialed text messages per month. You further agree that, for any number you provide to us, you are the subscriber or regular user of such number or have authority to do so from the subscriber or regular user of such number.
Opting Out of Non-Marketing Communications. To discontinue receiving non-marketing communications via text, respond “STOP” via text message to the number you received a text from. If you successfully opt out, you will be sent a confirmation message. If you have followed this procedure and do not receive a confirmation message, call 1-800-DO-FRUIT to complete the opt-out procedure. To discontinue other types of non-marketing phone communications via automated telephone dialing system or pre-recorded message, send an email to Privacypolicy@edible.com with your name, number, and a clear statement that you no longer wish to receive any telephone communications from or on behalf of Edible using an automatic telephone dialing system or pre-recorded message. You agree the foregoing are the exclusive ways to opt out of non-marketing telephone communications from us, and that we may resume communications if the number is re-provided to us after your opt-out. Also, these opt out procedures will only opt you out of non-marketing telephone communications from an automated telephone dialing system or that use a pre-recorded message.
Opting Out of Marketing Communications. To discontinue receiving marketing communications via text, text “STOP” to 54091. If you successfully opt out, you will be sent a confirmation message. If you have followed this procedure and do not receive a confirmation message, call 1-800-DO-FRUIT to complete the opt-out procedure. To discontinue other types of telephone marketing communications from us, please request to be placed on our do-not-call list. You agree the foregoing are the exclusive ways to opt out of marketing telephone communications from us.
STANDARD MESSAGE AND DATA RATES APPLY TO OUR TEXT COMMUNICATIONS. NOT ALL CARRIERS COVERED, SEE BELOW.
Compatible carriers as of April, 2014 include: AT&T, Verizon-Alltel, T-Mobile®, Sprint, U.S. Cellular, Boost, MetroPCS, Virgin Mobile, Cricket, nTelos, Cellcom, C Spire Wireless (Cellsouth), Cincinnati Bell, Carolina West Wireless, Appalachian Wireless, Chariton Valley Cellular, Coral Wireless, Cross (dba Sprocket), DTC Wireless, Duet IP, EpicTouch, Leaco, Mosaic, Nemont/Sagebrush, Peoples Wireless, Pine Cellular, Pioneer, Revol Wireless, Rina - Custer, Rina- All West, Rina- Cambridge Telecom Coop, Rina- Eagle Valley Comm, Rina- Farmers Mutual Telephone Co, Rina- Nucla Nutria Telephone Co, Rina- Silver Star, Rina- South Central Comm, Rina- Syringa, Rina- UBET, Rina-Manti, United Wireless, Aio Wireless, ACS Wireless, Bluegrass Cellular, Cellone Nation, Cellular One of East Central Illinois, Chat Mobility, Element Mobile, Flat Wireless, LLC, GCI Communications, Golden State Cellular, Illinois Valley Cellular, Immix/Keystone Wireless, Inland Cellular, iWireless, Nex-Tech Wireless, Northwest Missouri Cellular, Panhandle Telecommunications, Plateau Wireless, SouthernLINC Wireless; SouthernLINC Communications, SRT Wireless; SRT Communications, Thumb Cellular, Viaero Wireless, West Central Wireless (WCC). Carriers are subject to change at any time.
You agree to indemnify and hold harmless Edible Arrangements, LLC, its affiliates and subsidiaries, and all of their respective managers, members, directors, officers, agents, employees, suppliers, vendors, Franchisees, and service providers from any claims, judgments, liability, and expenses, including reasonable attorneys fees, arising out of claims for copyright infringement, defamation, invasion of privacy, or infringement of rights of publicity, that are made by any third party relating to your breach of these Terms or your use, authorized or unauthorized, of the Website. This provision does not apply to personal injury, and only indemnifies for the specific situations stated.
DISCLAIMER OF WARRANTIES
THE WEBSITE, THE INFORMATION AND MATERIALS CONTAINED ARE PROVIDED BY EDIBLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. EDIBLE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE OR THE INFORMATION, CONTENT OR MATERIALS, INCLUDED OR MADE AVAILABLE ON OR THROUGH THE WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EDIBLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON THE WEBSITE, AND ON THE INFORMATION AND MATERIALS PROVIDED ON OR OFFERED FOR SALE ON THE WEBSITE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. EDIBLE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, ITS SERVERS, OR E-MAIL SENT FROM EDIBLE; ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR MATERIALS MADE AVAILABLE THROUGH THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED; OR THAT DEFECTS WILL BE CORRECTED. EDIBLE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE WEBSITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. EDIBLE MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE WEBSITE AT ANY TIME, WITHOUT PRIOR NOTICE.
LIMITATION OF LIABILITY
EDIBLE ARRANGEMENTS, LLC, ITS AFFILIATES AND SUBSIDIARIES, AND ANY OF THEIR RESPECTIVE MANAGERS, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, VENDORS, FRANCHISEES AND/OR SUPPLIERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ECONOMIC DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THE WEBSITE OR THE DELAY OR INABILITY TO USE THE WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION. TO BE CLEAR, THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE WEBSITE, AND DOES NOT APPLY TO PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF EDIBLE’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S), OR INTENTIONAL MISCONDUCT
Edible reserves the right, in its sole discretion, to terminate or suspend any password, account, access, or ability to use the Website at any time without notice. Upon such termination, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately (a) discontinue use of the applicable Website and (b) discontinue use of and destroy or return to Edible any Edible materials, including the Franchisee Area Materials (unless otherwise agreed to in writing by Edible).
Edible may seek to gather information from the user of the Website who is suspected of violating this Agreement, and from any other user of the Website. Edible may suspend access or use by any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate, without notice. If Edible believes, in its sole discretion, that a violation of this Agreement has occurred, it may edit or modify any submission, posting or e-mails, remove the material permanently, cancel postings, warn users, suspend users and Passwords, terminate accounts or take other corrective action it deems appropriate. Edible will fully cooperate with any law enforcement authorities or court order requesting or directing Edible to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate this Agreement.
YOU WAIVE AND HOLD HARMLESS EDIBLE FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY EDIBLE DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER EDIBLE OR LAW ENFORCEMENT AUTHORITIES.
AGENT FOR NOTICE OF CLAIMED COPYRIGHT INFRINGEMENT
Edible respects the intellectual property rights of authors. To assist copyright owners, Edible has appointed an agent to receive notifications of claims or allegations of copyright infringement regarding materials available or accessible on, through, or in connection with a Website. Any person authorized to act for a copyright owner may notify us of such claims by contacting us in writing at the following address:
Attn: Copyright Agent
Edible Arrangements, LLC
980 Hammond Drive, Suite 1000
Atlanta, Georgia 30328
Fax: +1 203 774-0531
Under Title 17, United States Code, Section 512(c)(3)(A), your notice of a claimed copyright infringement to our Designated Agent must be in the form of a written communication that includes the following information:
(a) Your address, telephone number and e-mail address;
(b) Identification of the copyrighted work (or works) that you claim has been infringed;
(c) A description of the material that you claim is infringing the copyrighted work;
(d) A clear description of where the infringing material is located on the Website, including its URL, so that Edible can locate the material;
(e) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
(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; and
(g) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest.
We may assign our rights and obligations under this Agreement, without notice, to (i) any affiliate of Edible, or (ii) any party or its affiliate acquiring all or substantially all of the assets or stock by merger or otherwise of Edible or any affiliate of Edible. This Agreement may not be assigned by you without our prior written consent.
In the unlikely event that a problem occurs with respect to your use of the Site and these Terms, Edible would like to address your concerns without requiring a formal legal case or proceeding. Before filing a claim against Edible, we ask that you try to resolve the dispute informally by contacting our Customer Service department. We will attempt to resolve the dispute informally by contacting you via email.
AGREEMENT TO ARBITRATE DISPUTES
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
Claims Subject to Arbitration. Except as noted below, you and Edible agree to resolve any controversy with or involving Edible, including those arising out of Edible’s business, services, products, marketing programs, interactions between you and Edible, or the Terms, through final and binding arbitration. Your agreement to arbitrate such controversies is retroactive in effect and applies to all controversies regardless of whether they accrued before or after these Terms went into effect. Consistent with your agreement to resolve all controversies via arbitration, the arbitrator shall have exclusive authority to resolve all issues of arbitrability, including but not limited to issues of scope and enforceability.
Claims Excluded from Arbitration. The following claims are excluded from arbitration:
1. Any disputes related to Edible's intellectual property rights (for example, trademark, trade secret, copyright, or patent rights).
2. Claims within the jurisdiction of the applicable small claims court.
3. Any claims that applicable law require to be excluded.
About Arbitration. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. Arbitrator’s decisions are generally subject to much more limited review than a court decision.
Applicable Rules. Because the Terms memorialize a transaction in interstate commerce, the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Any arbitration with us will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“Consumer Rules”) of the American Arbitration Association (collectively the “AAA Rules”), as modified by the Terms, which govern in the event of a conflict. The rules and fee information are available at www.adr.org or by calling 1-800-778-7879. If your claim exceeds $150,000, the arbitration will be conducted by a panel of three arbitrators, unless all parties agree otherwise.
Costs of Arbitration. If the Consumer Rules apply, we will bear the cost of any filing fees and arbitrator’s fees for claims up to $75,000. You are responsible for all other additional costs, including expert witness fees and attorney’s fees, unless applicable law requires otherwise. For any claims exceeding $75,000 or non-consumer claims, you will be responsible for paying administrative costs and fees as provided in the applicable arbitration rules.
Location of Arbitration and Applicable Law. Arbitration under these Terms and Conditions shall be held in the United States county where you live or work, Fulton County, Georgia, or any other location we mutually agree to, subject to Georgia law. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the Northern District of Georgia (Atlanta division) to resolve your claim, unless that Court does not have subject matter jurisdiction, in which case the dispute will be resolved in Fulton County State or Superior Court.
No Class, Collective, or Joint Actions. Absent our written consent, you may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, collective actions, class actions, private attorney general actions, and consolidated proceedings of any kind are not permitted.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, EVEN FOR DISPUTES NOT SUBJECT TO ARBITRATION.
Arbitrator’s Decision. All awards shall be reasoned awards and the arbitrator’s findings, reasoning, decision, and award shall be set forth in writing and shall be based upon and be consistent with the law of the jurisdiction that applies to the claims. Judgment on the arbitration award may be entered in any court having jurisdiction. In the event that the arbitration results in an award which imposes an injunction on you or on us or contains a monetary award in excess of $250,000, the award shall be reviewable on appeal initiated within 30 days of the award, and shall not be considered final until after the time for filing the notice of the appeal has expired. The appeal shall be governed by the AAA Optional Appellate Arbitration Rules; to the extent they are not inconsistent with this Agreement, and shall be conducted by a panel of three new arbitrators selected to hear the appeal under the procedure for appointment from the national roster, except that the AAA shall not unilaterally appoint the arbitrators for the appeal, unless you and we so agree. Appeals must be initiated within thirty (30) days of receipt of the underlying award, by filing a Notice of Appeal with any AAA office. The decision of the panel shall be by majority vote. Such review shall reconsider anew any aspect of the initial award requested by the appealing party. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. if the award does not impose an injunction on you or on us or contain a money award in excess of $250,000, then the award shall not be appealable and shall only be subject to such challenges as would otherwise be permissible under the FAA.
Alternative Arbitrator Selection. Should the AAA be unavailable, unable or unwilling to accept and administer the arbitration of any claim under this agreement to arbitrate as written – in whole or in part and for any reason whatsoever or for no reason – this agreement to arbitrate shall not fail or be invalidated as a result. Rather, in that instance, the parties shall agree on a substitute arbitration organization, such as JAMS, that will enforce this agreement as written. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization or arbitrator(s) that will enforce this agreement to arbitrate as written. Should the court decline or refuse, then and only then and within thirty (30) days of a final and non-appealable decision on the matter from such court, you and we shall each respectively pick one arbitrator, and those two arbitrators shall then, by mutual agreement and within 30 days of the selection of the second of them, select a third arbitrator. The third arbitrator so selected shall then arbitrate the Claim as the sole arbitrator, except with respect to a Claim for $150,000 or greater, in which case all three arbitrators so selected shall arbitrate the claim together, with the award and all pre-award decisions made by majority vote. In the case of any arbitration not administered by the AAA, the arbitrator(s) shall still be bound by all applicable provisions of this agreement to arbitrate and the Federal Arbitration Act. They further shall administer and conduct the arbitration under the applicable AAA Arbitration Rules, to the extent such rules may be practicably applied to an arbitration not administered by the AAA.
Severability. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced, except that if the “NO CLASS ACTIONS” provision is found unenforceable, this entire agreement to arbitrate shall be null and void (though the jury trial waiver will remain in full force and effect).
Survival. This arbitration provision survives the termination of the Terms and your relationship with us.
GOVERNING LAW AND JURISDICTION
The Website (excluding linked web sites) is controlled by Edible from its offices within United States. Edible makes no representations or warranties that the information, products or services contained on the Website are appropriate for use or access in locations other than the United States.
If you are using or accessing the Website from locations other than in the U.S., you are responsible for compliance with Georgia and United States laws, as well as local laws in countries from which you are accessing the Website, if and to the extent applicable.
In any circumstances where the Arbitration Agreement permits the parties to litigate in court, this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, excluding its conflict of law rules. You expressly consent and agree to submit to the exclusive jurisdiction and venue in Georgia, in each case located in the City of Atlanta, County of Fulton, Georgia, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms in your country of residence or any other relevant country.
Edible Arrangements, LLC.
980 Hammond Drive, Suite 1000
Atlanta, Georgia 30328
Effective Date: August 2020