Terms of Service

Terms and Conditions of Service

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Effective Date: October 11, 2013

Mouth Foods, Inc. (hereinafter “Mouth,” “we” or “us”) provides the website www.mouth.com, our computing applications and the data, information, tools, updates and similar materials delivered or provided by Mouth (the “Services”), and all goods sold there-through (the “Goods”), subject to your agreement to and compliance with the conditions set forth in this Terms and Conditions Agreement (the “Agreement”). This Agreement sets forth the legally binding terms and conditions governing your use and purchase of the Goods and Service. By using the Service, purchasing any Goods or otherwise entering into this Agreement, you are creating a binding contract with Mouth. If you do not agree to these terms and conditions, you may not use the Service.

We may make changes to these Terms of Use from time to time by posting such changes to the Services and obtaining your agreement to the revised Agreement.

License
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, Mouth grants you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive right to receive the Services, and to access the materials thereon that are intended to be displayed publicly, and to reproduce the Services and their contents only on your computing devices for personal use. No rights not explicitly listed are granted. 
INCORPORATED TERMS

The following additional terms are incorporated into this Agreement as if fully set forth herein:

  1. Privacy Policy
Eligibility

You must be at least thirteen (13) years old to use the Service. By using the Service, you represent that you meet this minimum age requirement. 

Terms of Sale

Sales Territory.  Mouth sells and ships products only to the United States (including its territories and military location) and Canada. While Mouth may accept special orders, we may not ship to an international destination of your choice. Unless you contact Mouth separately and we accept a special shipment, any purchase order that designates an address outside of our ordinary delivery area will not be accepted. Shipping charges will be presented at checkout. To the extent applicable, you are responsible for all foreign taxes and duties on your shipment. Sales. Contingent upon availability or other cause for declining your purchase order, your credit card account or payment method may be charged upon submission of any order or at shipment, regardless of such order’s content. Applicable taxes, if any, may be added to your order, depending on your location of shipment or the type of products you purchase.

If your order has been cancelled or declined for any reason, either before or after acceptance, Mouth will make reasonable efforts to contact you to inform you of its cancellation or non-acceptance. Should an order which uses an incorrect, expired, or declined credit card be processed, Mouth reserves the right to collect payment for such transaction, and you agree to be liable for any fees, including but not limited to attorney’s fees and collection costs, that Mouth may incur in its efforts to collect such unpaid balance from you, plus interest. 

You may have the option of purchasing a subscription package, or a single shipment.  If you purchase a subscription package, your card will be charged at the time you place your initial order. 

For recurring subscription shipments, we attempt to ship between the 10th and 20th calendar day of each month. If you would like to change the address to which we ship a recurring monthly shipment, you must notify Mouth no later than the 5th calendar day of the month in which you would your changed shipping address to take effect.

Mouth may decline an order, for any reason or no reason, and subject to a refund, may cancel an accepted order at any time.

Returns. As Mouth sells food products, it does not offer returns or refunds. All sales are final. Mouth is committed to providing its customers with a great experience; if you are unhappy with a product you purchased on Mouth, please contact us at info@mouth.com

Shipment of ProductsTitle and risk of loss for any purchases pass to you upon our delivery to the carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. Unless as a result of events outside of our direct control, orders of products purchased by you through the Services will be delivered within the time period specified for the delivery method you have selected.

Mouth recommends that all items be secured immediately upon delivery. Shipments may not be made to a P.O. Box or other unattended address. You are responsible for arranging for an individual to be present at the time of delivery and for the products to be properly received and secured.  Any individual at the delivery address who accepts delivery is conclusively presumed to be authorized to receive the delivery Mouthis not responsible should such an individual not be authorized to accept such delivery. You agree that your sole method of recourse for unauthorized delivery resides with the carrier of your order. Mouthis not responsible should you enter any incorrect or inaccurate destination data in your order. If no one is present at the designated location, your shipment may be placed at the designated destination at the discretion of the carrier. 

Additional rules, restrictions and recommendations may apply to the purchase of certain products, which will be posted in conjunction with the applicable product.

Please review our FAQs for more information regarding the terms of sale associated with the Services.

Gift Certificates

Gift certificates for the Services may only be purchased through www.mouth.com. Mouth may place limitations on the minimum of maximum value of gift cards that are made available. You may not use a gift certificate to purchase additional gift certificates. Promotional codes, discounts or other promotions are not applicable to the purchase of gift cards. Gift certificates expire 3 years from the purchase date.

Gift certificates may be redeemed only through purchases on www.mouth.com, including for applicable shipping, taxes or other fees. All of these Terms of Use, as well as our Privacy Policy, apply to purchases using gift certificates.

Gift certificates have no cash value, and are not redeemable for cash or other credit to payment methods. Gift certificate purchases are non-refundable. If your gift certificate malfunctions or fails to work, your sole remedy is a replacement gift certificate.When purchasing a gift certificate, you may have the choice of receiving the certificate by regular mail, or through e-mail. Each gift certificate comes with its own alphanumeric code, which will be sent to the e-mail address you designate as the recipient of the gift certificate.

You or the user of the gift certificate must have an account with Mouth to use the certificate. Each gift certificate may only be used with one Mouth account. When an alphanumeric gift certificate code is used with a particular account for the first time, the number will be assigned to that account and may not be transferred or used by another account holder. After entry, the amounts on the gift card will automatically be applied to purchases from that account until the gift card is exhausted. Mouth may require the entry of a payment card or payment method in addition to a gift certificate to ensure that a sale using a gift card is completed, such as in the event of extra shipping charges.

Where labeled as such, gift certificates may be one-time-use certificates. Under such a circumstance, any amount on a gift certificate that is not used in the initial purchase using that gift certificate will be forfeited.

After purchase, you are responsible for the security of the gift certificate and its code, including responsibility for use of the gift certificate by others. Mouth is not responsible if someone uses your gift certificate code without your permission.

In addition to its other remedies, Mouth may cancel a gift certificate, an order for a gift certificate or the use of a gift certificate if it suspects or discovers fraud.

Disclaimer

While we make reasonable efforts to ensure that the Services remain available at all times, we do not represent or warrant that access to the Services will be error-free or uninterrupted, or without defect, and we do not guarantee that users will be able to access or use the Services, or its features, at all times.

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, or any part thereof, including the availability of any Goods thereon, with or without notice.

The Services may contain typographical errors or inaccuracies, including relating to price, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice, even if your order has already been accepted or processed.

The materials included in the Services may include health information. Such information is NOT intended, and in no way is, a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding food storage and consumption safety.

We have made effort to display as accurately and reliably as possible the colors, sizes, dimensions, materials, textures, and all other physical aspects (“Depiction”) of the goods that appear on the Services. However, many of the Goods on the website are artisanal, and product characteristics can vary. We cannot guarantee, and make no warranty, promise, or agreement that any depicted or described product fully comports with its Depiction or description.

Rules of Conduct

Your use of the Services is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.

You agree that you will not violate any applicable law or regulation in connection with your use of the Services or any Goods purchased through the Services.

You agree that you are responsible for complying with all laws, rules and regulations in your jurisdiction regarding the Services and any Goods purchased through the Services, including the purchase and possession of alcoholic beverages. Mouth makes no representation or warranty regarding the legality of purchasing any of the Goods in your jurisdiction.

You agree that you are responsible for all of the conduct engaged in through your account, and all charges incurred by your account, whether or not you performed or authorized them.

You further agree that you will not do any of the following: 

  1. modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Services;
  2. interfere with or disrupt the operation of the Services, including restricting or inhibiting any other person from using the Services by means of hacking or defacing;
  3. transmit to or make available in connection with the Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
  4. attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
  5. take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on ourinfrastructure;
  6. harvest or collect the email address or other contact information of other users of the Services;
  7. scrape or collect content from the Services via automated means;
  8. submit, post or make available false, incomplete or misleading information to the Services, or otherwise provide such information to Mouth;
  9. register for more than one user account; or,
  10. impersonate any other person or business.

You are not licensed to access any portion of the Services that is not public, and you may not attempt to override any security measures in place on the Services.

Notwithstanding the foregoing rules of conduct, Mouth’s unlimited right to terminate your access to the Services shall not be limited to violations of these rules of conduct.

Content Submitted or Made Available to Mouth

You are under no obligation to submit any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials  (“Content”) to us, and unless otherwise noted, we will not claim ownership of any Content. If, however, you choose to submit any Content through or on the Service, or otherwise make available any Content through the Service, you hereby grant Mouth a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels.

By submitting any Content or Submissions to Mouth you hereby agree, warrant and represent that: (a) the Content and Submissions do not contain proprietary or confidential information, and the provision of the Content and Submissions is not a violation of any third-party’s rights; (b) all such Submissions and Content are accurate and true, (c) Mouth is not under any confidentiality obligation relating to the Content or Submissions; (d) Mouth shall be entitled to use or disclose the Content or Submissions in any way; and (e) you are not entitled to compensation or attribution from Mouth in exchange for the Submissions or Content.

You acknowledge that Mouth is under no obligation to maintain the Services, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Services. We reserve the right to withhold, remove and or discard any such material at any time.

Our Intellectual Property

Mouth’s graphics, logos, names, designs, page headers, button icons, scripts, and service names are trademarks, trade names and/or trade dress of Mouth. The “look” and “feel” of the Services (including color combinations, button shapes, layout, design and all other graphical elements) is protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are the property of Mouth or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.

You acknowledge that the software used to provide the Services, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain the sole and exclusive property of Mouth and/or its licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.

Data Collection and Use

You understand and agree that Mouth’s Privacy Policy shall govern the collection and use of data obtained by Mouth through your use of the Service. 

Enforcement and Termination

Mouth reserves the right to deny all or some portion of the Services to any user, in Mouth’s sole discretion, at any time. All grants of any rights from you to Mouth related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.

Links and Third-Party Content

The Services may contain links. Such links are provided for informational purposes only, and Mouthdoes not endorse any website or services through the provision of such a link.

The Services may contain articles, text, imagery, video, audio, data, information and other similar materials originating from third-parties. Mouth does not endorse any third party content that may appear on the Services or that may be derived from content that may appear on the Services, even if such content was summarized, collected, reformatted or otherwise edited by Mouth.

DISCLAIMERS AND LIMITATION ON LIABILITY

EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICES AND ANY GOODS SOLD OR PROVIDED BY MOUTH ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. MOUTH, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICES AND ANY GOODS SOLD OR PROVIDED BY MOUTH. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM MOUTH SHALL CREATE ANY WARRANTY.

USE OF THE SERVICES IS AT YOUR SOLE RISK. MOUTH DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MOUTH, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICES OR ANY GOODS SOLD OR PROVIDED BY MOUTH, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES OR ANY GOODS SOLD OR PROVIDED BY MOUTH, EVEN IF MOUTH AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither Mouth nor any of its subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of $500.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Services or any goods sold or provided by Mouth. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose. 

INDEMNIFICATION

You agree to defend, indemnify and hold Mouth and its suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney's fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Services (b) your use of the Services, (c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Service.

ARBITRATION, GOVERNING LAW AND JURISDICTION

You agree that any claim or dispute arising out of or relating in any way to your use of the Services or any Goods or service provided by Mouth, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: Mouth Foods, Inc. 68 Jay Street, Brooklyn, NY 11201.

Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Arbitration shall take place in Brooklyn, New York.

You and Mouth agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Mouth agree that parties have each waived any right to a jury trial.

Notwithstanding the foregoing, you agree that Mouth may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Services, or to Mouth, may only be brought by you in a state or federal court located in Brooklyn, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN BROOKLYN. In any such proceeding, you agree that service may be made upon you via e-mail at your e-mail address that we then have on-file.

POLICIES FOR CHILDREN

The Services are not directed to individuals under the age of 13. In the event that Mouth discovers that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information if required by the Children's Online Privacy Protection Act. Please see the Federal Trade Commission's website for (www.ftc.gov) for more information.

Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.

GENERAL

Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. Revisions. In the event that Mouth updates this Agreement, you may be required to re-affirm the Agreement, through use of the Services, or otherwise.

No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Mouth as a result of this Agreement or your use of the Services. Assignment. Mouth may assign its rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Mouth’s prior written consent, and any unauthorized assignment by you shall be null and void. No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: info@mouth.com. Equitable Remedies. You hereby agree that Mouth would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws. Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and Mouth with respect to the Services, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.