Mellow, Inc. (“Mellow”) cooks food sous-vide by allowing you to set the temperature on a Mellow device (“Device”) through mobile software applications (each application, an “App”), available at cookmellow.com (“Site”) or elsewhere. The Device, the Apps and the Site are collectively referred to herein as the “Service”. This Master Terms of Service along with the Additional Terms (defined below), as such terms and policies may be updated from time to time (collectively, the “Terms”), governs your use of the Service.
By downloading an App, visiting the Site, using a Device, or otherwise accessing or using the Service, you agree that you have read, understood, and agree to be bound by these Terms. If you do not agree, you may not use the Service.
You are solely responsible for the use of the Service. By using the Service you acknowledge that your use of the Service is solely at your own risk. Your use of the App or any other downloadable software components provided by Mellow is subject to these Terms and any Additional Terms provided by Mellow.
In addition to these Master Terms of Service, the following additional terms apply to your use of the Service. By using the Service, you agree to be bound by these additional terms (including any age restrictions applicable to use of a particular App or feature of the Service), as applicable, which are incorporated herein by reference (collectively “Additional Terms”):
Any purchasing terms Mellow includes when you purchase a Device; and Any additional terms or conditions Mellow may supply from time to time.
In the event of a conflict between the terms and conditions in this document and the terms in any of the Additional Terms, these Master Terms of Service will control.
a. Pre-Orders on or after May 30, 2015. By pre-ordering a Device on or after May 30, 2015 you acknowledge and agree that you are contributing (i.e., making a donation) to a work in progress and not making a direct purchase. Your reward is the number of Devices you pre-order. If Mellow is unable to fulfill your reward, the parties agree that these Terms will apply (including the Dispute Resolution section below). Mellow may cancel or refund your contribution at any time and for any reason, and if Mellow does so, Mellow is not required to fulfill the reward.
b. Ordering, Generally. Mellow may make Devices available for purchase through the Site. Any sale of Devices through the Site or any element of the Service is subject to these Terms, to any Additional Terms, or to any applicable bill of sale or purchase agreement. You agree to pay any amounts and fees Mellow may charge for your purchase of the Device or any associated Apps (a “Payment”). Before you are required to make any Payment, you will have an opportunity to review and accept the amount that you will be charged for such Payment. All Payments are in U.S. Dollars and are non-refundable, except as otherwise provided for by these Terms or any Additional Terms that may apply. Mellow may change the Payment required for any component of the Service, including by changing the price for each Device, on a going-forward basis, at any time. Mellow will charge the payment method you specify at the time of purchase. You authorise Mellow to charge all sums described herein to such payment method. If you make any applicable Payment with a credit card, Mellow may seek pre-authorisation of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subject to these Terms, Mellow grants you a limited, non-exclusive, non-transferable, term-limited, non-sublicensable, revocable license to use any software that is provided by Mellow that is pre-installed on, embedded in or incorporated into the Device (“Embedded Software”) solely in connection with your use of the Service.
Some Apps and features of the Service may allow you to link your account(s) on the Service to your accounts on third party services, such as social networks (“Integrated Services”). You may be given the option to link your account on the Service to an account on an Integrated Service. If you link your account on the Service to an account on an Integrated Service, you are authorizing Mellow to store and use your access credentials to access your account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such Integrated Services. Use of Integrated Services through the Service in this manner may be subject to additional terms established by the applicable third parties providing the Integrated Services, and it is your sole responsibility to comply with such third party terms.
a. General. Mellow may contain or display through the Service various materials and content from third parties (“Third Party Materials”). The display on or through the Service of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Mellow of any third party or any affiliation between any such third party and Mellow. Furthermore, in using and accessing the Service, you agree that Mellow is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Mellow’s display of specific Third Party Materials does not suggest a recommendation by Mellow of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Mellow will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.
b. Third Party Links and References. The Service may contain references or links to third-party materials and websites not controlled by Mellow. Mellow provides such information and links as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that Mellow is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.
Mellow does not allow use of the Service for any illegal, abusive purposes, in any manner that interferes with or interrupts the proper functioning of the Service, or through the use of any bot, crawler, spider, or other automated process. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Mellow, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting Mellow Support at email@example.com.
You agree not to use the Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do, or attempt to do, any of the following:
Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Service, use of the Service, access to the Service, or content obtained through the Service for any purpose other than for your authorised use of the features of the Service that you have fully paid for, in accordance with all applicable Terms;
Access or use the Service for any comparative or competitive research purposes;
Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Service or any content therein;
Use any manual or automated means to extract and/or compile content from the Service for any commercial purpose or otherwise;
Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;
Undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, x-raying, disassembling or hacking of all or part of the Service or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended; or
Use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
You expressly agree to abide by all the foregoing restrictions, except to the extent any foregoing restriction is prohibited by law.
The Service is owned and operated by Mellow. The software, content, visual interfaces, interactive features, information, trademarks, logos, graphics, design, compilation, computer code, products, software, services, content, and all other elements of the Service (“Mellow Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Mellow Materials, including intellectual property rights therein and thereto, are the property of Mellow or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorised use of the Mellow Materials. Mellow reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Mellow Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.
These Terms will remain in effect until terminated. Your rights and licenses under these Terms will terminate immediately upon your breach of the Terms. You may terminate these Terms by cancelling your account with Mellow and, if applicable uninstalling and ceasing use of the Apps. Mellow may terminate the Service, disable any App, and/or these Terms, or limit or terminate your access to the Service at any time for any reason or no reason at all. No refunds will be granted in connection with any termination of the Service. You agree that termination of your account is your sole remedy for any dissatisfaction with the Service.
Mellow reserves the right, in its sole discretion, to add, remove, or modify features of the Service at any time for any reason without liability to you. Mellow may change, modify, add, or remove portions of these Terms (including the Additional Terms) at any time by making such modified terms available to you on the Mellow website or through an App, or both. If Mellow materially modifies these Terms, it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. No modifications to these Terms will apply to any dispute between you and Mellow that arose prior to the date of such modification. Your use of the Service after modifications to these Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of these Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Mellow and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Mellow Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service at any time; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Mellow reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Mellow’s defence of such claim.
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”; AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE MELLOW ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE MELLOW ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE MELLOW ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND ANY MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES IS AT YOUR OWN DISCRETION AND RISK.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL THE MELLOW ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE MELLOW ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MELLOW ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO MELLOW FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $5.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT MELLOW HAS OFFERED ITS SERVICE AND DEVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MELLOW, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MELLOW.
EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
a. Generally. In the interest of resolving disputes between you and Mellow in the most expedient and cost effective manner, you and Mellow agree that any and all disputes arising out of or relating in any way with these Terms or your use of the Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MELLOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services or under these Terms must be filed by either party within two (2) years after such claim or cause of action arose or it will be forever barred.
b. Exceptions. Notwithstanding subsection 15.a, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
c. Arbitrator. Any arbitration between you and Mellow will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA&”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by contacting Mellow.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Mellow’s address for Notice is: Mellow, Inc., 340 S LEMON AVE #8781, WALNUT, CA 91789. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Mellow may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Mellow shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Mellow shall pay you the greater of (i) the amount awarded by the arbitrator, if any; (ii) the greatest amount offered by Mellow in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00.
e. Fees. In the event that you commence arbitration in accordance with these Terms, Mellow will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, the party requesting relief may choose whether the arbitration will be conducted through binding non-appearance-based arbitration. This non-appearance-based arbitration must comply with the following rules: (a) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions (the specific manner shall be chosen by the party initiating the arbitration); (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Mellow for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. YOU AND MELLOW AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Mellow agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Enforceability. If only Subsection 15.f of this Section 15 or the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.
a. Governing Law. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents regardless of your country of origin or where you access the Services, and without regard to conflict of law principles or the United Nations Convention for the International Sale of Goods.
b. Jurisdiction and Venue. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Mellow agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all such claims or disputes.
c. Entire Agreement. These Terms (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and Mellow, and supersedes any and all prior agreements, negotiations, or other communications between you and Mellow, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.
d. Severability. In the event that any provision of these Terms is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these Terms; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.
e. Compliance with Laws. You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.
f. Assignment. You may not assign these Terms without the prior written consent of Mellow, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Mellow may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns.
g. Force Majeure. You acknowledge and understand that if Mellow is unable to provide the Service as a result of a force majeure event Mellow will not be in breach of these Terms. A force majeure event means any event beyond the control of Mellow.
h. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. Mellow’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.
i. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
The Service hereunder is offered by Mellow, Inc.:
Mellow, Inc. 6725 Millcreek Drive, Unit 1 - Mississauga, ON L5N 5V3 Canada.
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.