Terms of Service

Last Updated – Feb 1, 2016

Cucmbertown, Inc., a Delaware corporation owned by Cookpad Inc. (“Cucumbertown”, “we”, “us” or “our”) allows you, via the Cucumbertown website currently available at http://www.cucumbertown.com, any other websites under Cucumbertown’s subdomain, or other domain of your choice configured and hosted by us (the “Website”), to participate in a food blogging platform allowing anyone to publish content and create devoted followings (the “Cucumbertown Service”).

Your use of the Website and the Cucumbertown Service is subject to these terms of service, including the Cucumbertown privacy policy (these “Terms of Service”).

PLEASE READ THE TERMS OF SERVICE CAREFULLY. BY CLICKING “Start a Food Blog“ OR OTHERWISE ACCESSING OR USING THE WEBSITE OR THE CUCUMBERTOWN SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND TO ALL THE TERMS OF OUR TERMS OF SERVICE, THE PRIVACY POLICY AND ANY OTHER LEGAL NOTICES OR GUIDELINES POSTED ON THE WEBSITE, WHICH SHALL BE INCORPORATED BY REFERENCE INTO THESE TERMS OF SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, EXIT THIS PAGE AND DO NOT ACCESS OR USE THE WEBSITE OR THE CUCUMBERTOWN SERVICE.

These Terms of Service provide that all disputes between you and Cucumbertown will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 17 below for the details regarding your agreement to arbitrate any disputes with Cucumbertown.

The Cucumbertown Service is meant for those at least thirteen (13) years of age. Use of the Cucumbertown Service by anyone under the age of thirteen (13) is a violation of these Terms of Service. If you are under the age of eighteen (18), you represent that you have the consent of a parent, or legal guardian to use or access the Cucumbertown Service.

1. Updates to Terms of Service

We may, in our sole discretion, modify these Terms of Service with prior notice to you. The “Last Updated” date at the top these Terms of Service will indicate when the latest modifications were made. In the event that a change to these Terms of Service materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Website or Cucumbertown Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms of Service materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms of Service. If we require your acceptance of the changed Terms of Service, changes are effective only after your acceptance. If you do not accept the changed Terms of Service, we may terminate your access to and use of the Website or Cucumbertown Service. All other changes are effective upon publication of the changed Terms of Service. Disputes arising under these Terms of Service will be resolved in accordance with these Terms of Service in effect that the time the dispute arose.

2. Privacy Policy.

Our Privacy Policy, which is hereby incorporated into and made part of these Terms of Service, describes how we collect, protect, and use your personal information and certain other information about you. Please carefully review our Privacy Policy to help you make informed decisions.

3. Blogger Generated Content.

Certain features of the Website and Cucumbertown Service may permit users to post content, including blog posts, messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “Blogger Generated Content”) and to publish Blogger Generated Content on the Website and/or Cucumbertown Service. You retain copyright and any other proprietary rights that you may hold in the Blogger Generated Content that you post to the Website or Cucumbertown Service.

By posting or publishing Blogger Generated Content, you grant Cucumbertown a worldwide, non-exclusive, revocable, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your Blogger Generated Content, in whole or in part, solely in connection with providing the Cucumbertown Service. Any such use of your Blogger Generated Content by Cucumbertown may be without any compensation paid to you.

Cucumbertown will not use your Blogger Generated Content for any commercial purpose outside of the Cucumbertown Service unless we obtain your prior consent. We will not sell or otherwise make use of your Blogger Generated Content except as you expressly agree (whether under these Terms or in subsequent communcations).

By posting and sharing Blogger Generated Content with another user of the Website and/or Cucumbertown Service, you hereby grant that user a non-exclusive license to access and use such Blogger Generated Content as permitted by these Terms of Service and the functionality of the Website and/or Cucumbertown Service.

You are solely responsible for your Blogger Generated Content and the consequences of posting or publishing Blogger Generated Content. By posting and publishing Blogger Generated Content, you affirm, represent, and warrant that:

  • you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Cucumbertown and users of the Website and/or Cucumbertown Service to use and distribute your Blogger Generated Content as necessary to exercise the licenses granted by you in this Section 3 and in the manner contemplated by Cucumbertown and these Terms of Service; and
  • your Blogger Generated Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.

You may choose to remove any Blogger Generated Content, including your recipe posted on the Cucumbertown Service at any time. We are under no obligation to edit or control Blogger Generated Content that you or other users post or publish, and will not be in any way responsible or liable for Blogger Generated Content. Cucumbertown may, however, at any time and without prior notice, screen, remove, edit, or block any Blogger Generated Content that in our sole judgment violates these Terms of Service or is otherwise objectionable. You understand that when using the Website and/or Cucumbertown Service you will be exposed to Blogger Generated Content from a variety of sources and acknowledge that Blogger Generated Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Cucumbertown with respect to Blogger Generated Content. We expressly disclaim any and all liability in connection with Blogger Generated Content. If notified by a user or content owner that Blogger Generated Content allegedly does not conform to these Terms of Service, we may investigate the allegation and determine in our sole discretion whether to remove the Blogger Generated Content, which we reserve the right to do at any time and without notice. For clarity, Cucumbertown does not permit copyright-infringing activities on the Website or Cucumbertown Service.

4. Intellectual Property

You acknowledge that, with the exception of your Blogger Generated Content, all materials at the Website and the Cucumbertown Service, including the Website’s and the Cucumbertown Service’s design, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of Cucumbertown and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners.

Cucumbertown gives you permission to use the Materials to the extent, and only to the extent, necessary to access and use the Cucumbertown Service in accordance with these Terms of Services. For example, Cucumbertown authorizes you to view, download and/or print the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Your use of the Website and the Cucumbertown Service is solely and exclusively under the limited license granted herein. Any use of the Cucumbertown Service or Materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors or advertisers, as applicable, is expressly prohibited.

Cucumbertown retains the right to rescind and terminate the limited license granted herein at any point, for any reason. Upon termination of this Agreement, the license shall also terminate and all rights shall revert to Cucumbertown without the taking of action on the part of either party.

For the avoidance of doubt, the trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described at the Website and/or the Cucumbertown Service are the sole property of Cucumbertown and/or its licensors and no license or right is granted to you. Your access to the Website and use of the Cucumbertown Services shall not be construed as granting any license or right to use any Marks without the prior written authorization of Cucumbertown and/or its licensors.

5. Third Party Sites.

Links at the Website or via the Cucumbertown Service to third party websites are provided only as a convenience to you. Cucumbertown does not control or endorse any such third party websites. You agree that Cucumbertown, its parent company, subsidiaries, and other affiliated companies and each of their respective officers, directors, employees and other representatives (hereinafter collectively, the “Cucumbertown Parties”), will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk. You are advised that other websites on the internet, including third party websites linked from this Website or the Cucumbertown Service, might contain material or information: that some people may find offensive or inappropriate; that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. Cucumbertown expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website.

6. Account Information.

You may visit our Website and view the contents including recipes without registration as a guest. However, you will have access to more features of Cucumbertown Service if you create account through user registration. If you wish to register for the use of Cucumbertown Service, you shall either complete the required account information as may be requested by us through submitting the application in such format as may be specified by us from time to time, or sign up by third party account (e.g. Facebook, Google). By using such third party account, you agree to their terms of use, privacy policy, and other agreements between you and them.

When you create an account on the Cucumbertown Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Cucumbertown Service; (b) maintain and promptly update such information to keep it true, accurate, current and complete; and (c) maintain the confidentiality of the password and account. If you provide any information that is false, inaccurate or outdated, or Cucumbertown has reasonable grounds to suspect that such information is false, inaccurate or outdated, Cucumbertown has the right to suspend or terminate your account and prohibit any and all current or future use of the Cucumbertown Service by you.

Further, you are fully responsible for all activities that occur under your password or account. Your account is meant to be private and you shall not share accounts, use another member’s account, nor allow others to use your account for any reason. You agree to: (a) immediately notify Cucumbertown of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session.

7. Use of the Cucumbertown Service.

You agree to use the Website and Cucumbertown Service only for lawful purposes and that you are responsible for your use of and communications and Blogger Generated Content you post via the Cucumbertown Service.

We have established a few ground rules for you to follow when using our Website, to make sure the Cucumbertown Service stays enjoyable for everyone. You must follow these rules and ensure that all persons who access our website through your internet connection comply with these rules and other conditions of Terms of Service.

You agree not to:

  • infringe intellectual property rights of third parties, including without limitation, intellectual property rights such as copyright and trademark, of us, other users or third parties;
  • infringe the property rights or privacy rights of us, other users or third parties;
  • disclose information, such as the name, mailing address, telephone number and email address of a specific individual without authorization, and by which any third party is able to identify the said individual;
  • register multiple email addresses to obtain multiple account, while being a single user;
  • obtain an account on behalf of a registered user whose account has been suspended or terminated;
  • discriminate against or defame other users or third parties, or damage the reputation and credibility of users or third parties;
  • alter and/or erase Materials made available through the Cucumbertown Services ;
  • impersonate us, other users or third parties (including doctoring email headers for the purpose of falsifying the source of email headers and the identity of the sender);
  • transmit, without authorization, email that are advertisement or promotion or solicitation or that are of a repulsive nature (including spam); obstruct the receipt of email by other users or third parties; request the transmission of chain emails and/or transmission of chain emails in accordance with such requests;
  • circulate information, equipment and software that are used for the purpose of disabling or circumventing the access control function of servers and other facilities;
  • obtain account information without authorization or through fraud (including, without limitation, by phishing or similar methods);
  • use Cucumbertown Services for commercial activities, for profit and in anticipation of profit, unless prior written approval has been obtained from us;
  • use Cucumbertown Services in contravention of applicable laws and regulations;
  • hinder the operation of Cucumbertown Services or hinder the exchange or sharing of Blogger Generated Content contributed by other users or third parties; or cause damages or losses to us, other users or third parties by damaging their credibility or infringing their intellectual property rights;
  • cause significant hindrance to the operations of our business through repetitive, frivolous or vexatious enquiries or emails, which are beyond our obligations and/or are unreasonable;
  • breach these Terms of Services; or impede public order and morality (including, without limitation, by transmitting or displaying Contents that may promote and induce violence, illegal images or suicide;
  • use, reproduce, distribute, publish, modify, display, broadcast, mirror, link, hyperlink or transmit Cucumbertown Services and/or Materials including Blogger Generated Content in any manner or by any means without our prior written permission; and
  • contravene such other requirements that we may impose from time to time at its sole and absolute discretion.
  • post on or transmit through this Website or the Cucumbertown Service any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes others’ intellectual property rights or otherwise violates any applicable local, state, national or international law;
  • use this Website or Cucumbertown Service in any manner that interferes with its normal operation or with any other user’s use and enjoyment of the Website or the Cucumbertown Service;
  • access, tamper with, or use non-public areas of the Cucumbertown Service, our computer systems, or the technical delivery systems of our providers;
  • probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
  • access or search or attempt to access or search the Cucumbertown Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by us (and only pursuant to this Terms of Service), unless you have been specifically allowed to do so in a separate agreement with us;
  • forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Cucumbertown Services to send altered, deceptive or false source-identifying information;
  • interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Cucumbertown Service, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Cucumbertown Service;
  • access this Website or the Cucumbertown Service by any means except through the interface provided by Cucumbertown for access to the Website and the Cucumbertown Service;
  • Create or maintain any link which is inappropriate or irrelevant from another website to any page at the Website without the prior authorization of Cucumbertown;
  • Run or display this Website, the Cucumbertown Service, or any information or material displayed at the Website in frames or through similar means on another website or application without the prior authorization of Cucumbertown;

8. Suspension and Termination of use.

You agree that Cucumbertown may terminate or suspend your access to all or part of this Website or the Cucumbertown Service, without notice for any conduct that Cucumbertown, in its sole discretion, believes is in violation of these Terms of Service or any applicable law or is harmful to the interests of another user or the Cucumbertown Parties. Following termination, Cucumbertown will use its commercially reasonable efforts to remove your Blogger Generated Content from the Cucumbertown Service within a reasonable amount of time.

9. Change to our Website and Cucumbertown Service

Cucumbertown reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or the Cucumbertown Service (or any part thereof) with or without notice. Except as otherwise expressly stated in these Terms of Service, you agree that Cucumbertown Parties shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Website or the Cucumbertown Service.

10. Temporary and Permanent Suspension of Cucumbertown Service.

We do not guarantee that Cucumbertown Service or any Materials on Website, will always be available or be uninterrupted. Occasionally, access to our Website may be limited on a temporary basis. We may suspend, withdraw, or discontinue at any time, with or without notice to you all or any part of Cucumbertown Service. In the event we decided to withdraw and discontinue our provision of the Cucumbertown Service, we will give you prior notice and reasonably assist you with exporting your Blogger Generated Content (if requested by you). We will not be liable to you if for any reason our Cucumbertown Service is unavailable at any time or for any period.

We may also suspend or cancel your access to or right to use the Cucumbertown Service where we are withdrawing them upon written notice to you.

11. Warranties, Disclaimers and Limitations of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE WEBSITE AND THE CUCUMBERTOWN SERVICE IS AT YOUR SOLE RISK. THE WEBSITE, THE CUCUMBERTOWN SERVICE AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, THE CUCUMBERTOWN PARTIES, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CUCUMBERTOWN PARTIES MAKE NO WARRANTY THAT: (I) THE WEBSITE OR CUCUMBERTOWN SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE WEBSITE AND CUCUMBERTOWN SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL, INCLUDING ALL RECIPES, OBTAINED BY YOU THROUGH THE WEBSITE OR CUCUMBERTOWN SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE WEBSITE OR CUCUMBERTOWN SERVICE WILL BE CORRECTED.

THE CUCUMBERTOWN PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE WEBSITE OR CUCUMBERTOWN SERVICE, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; (V) FOR ANY DISPUTES BETWEEN USERS; OR (VI) FOR ANY OTHER MATTER RELATING TO THIS WEBSITE, THE CUCUMBERTOWN SERVICE OR ANY THIRD PARTY WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUCUMBERTOWN AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE WEBSITE AND THE CUCUMBERTOWN SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE CUCUMBERTOWN PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO US$50.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.

12. Indemnification.

You agree to indemnify, defend and hold harmless the Cucumbertown Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of or conduct at the Website or Cucumbertown Service, any activity related to your account by you or any other person, any Blogger Generated Content that you submit to, post on or transmit through the Website or the Cucumbertown Service, your breach of these Terms of Service, your infringement or violation of any rights of another, or termination of your access to the Website or the Cucumbertown Service. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

13. Applicable Law and Jurisdiction.

Your use of the Website and the Cucumbertown Service is governed by and will be enforced under the laws of the State of Delaware without regard to its conflict of law provisions. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Cucumbertown agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.

14. Digital Millennium Copyright Act.

We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact our Copyright Agent at the address listed below and provide us with the following information:

  1. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
  2. Identification of the copyrighted work claimed to have been infringed.
  3. Information describing where the allegedly infringing material is located on the Website.
  4. Your address, telephone number, and email address.
  5. A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
  6. A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.

The foregoing information may be emailed to dmca@cucumbertown.com or mailed to our Copyright Agent at the following address:

Copyright Agent – Cucumbertown, Inc.
1979 Edgewood Drive, Palo Alto, CA, 94303

Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the member responsible for posting said material. The posting of infringing copyrighted material may result in the termination of member privileges of said responsible member.

Cucumbertown will promptly terminate without notice the accounts of users that are determined by Cucumbertown to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Blogger Generated Content removed from the Website or Cucumbertown Service more than twice.

15. Notice of Availability of Filtering Software.

Pursuant to the Communications Decency Act, you are hereby informed by Cucumbertown that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov in the whitepaper entitled Children’s Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies.

16. U.S. Export Controls.

The Website and Cucumbertown Service are subject to United States export controls. No part of the Website or the Cucumbertown Service may be exported or re-exported into any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

17. Dispute Resolution and Arbitration.

  1. Generally. In the interest of resolving disputes between you and Cucumbertown in the most expedient and cost effective manner, you and Cucumbertown agree that any and all disputes arising in connection with these Terms of 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 of 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 of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CUCUMBERTOWN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
  2. Exceptions. Notwithstanding subsection 17(a), we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right 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 or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
  3. Arbitrator. Any arbitration between you and Cucumbertown 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 of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cucumbertown.
  4. 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”). Cucumbertown’s address for Notice is: Cucumbertown, Inc., 1979 Edgewood Drive, Palo Alto, CA, 94303. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) 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 Cucumbertown may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cucumbertown shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Cucumbertown shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Cucumbertown in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
  5. Fees. In the event that you commence arbitration in accordance with these Terms of Service, Cucumbertown 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 County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 Cucumbertown 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.
  6. No Class Actions. YOU AND CUCUMBERTOWN 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 Cucumbertown 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.
  7. Modifications. In the event that Cucumbertown makes any future change to this arbitration provision (other than a change to Cucumbertown’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Cucumbertown’s address for Notice, in which case your account with Cucumbertown shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
  8. Enforceability. If Subsection 17(f) is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 shall govern any action arising out of or related to these Terms of Service.

18. Miscellaneous.

These Terms of Service constitute the entire and only Terms of Service between Cucumbertown and each user of the Website or the Cucumbertown Service with respect to the subject matter of these Terms of Service.

If any provision of these Terms of Service be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.

The failure of the Cucumbertown Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service.

No action arising out of this Terms of Service or your use of the Cucumbertown Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

By using the Website or Cucumbertown Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. 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.

19. Customer Service.

If you have any comments or questions regarding these Terms of Service, or wish to report any violation of these Terms of Service, you may contact us at privacy@cucumbertown.com.