TERMS AND CONDITIONS
Last Updated: January 30, 2019
Use of the Services
Updates. You understand that the Properties are evolving. As a result, Bensen may require you to accept updates to the Properties that you have installed on your computer or mobile device. You acknowledge and agree that Bensen reserves the right, in its sole discretion, to modify the Properties from time to time, with or without notice. You may need to update third-party software from time to time in order to use the Properties.
Branded Company Products. The Properties enable the Branded Company to offer various food, beverage and other related products (“Products”) to you and other users. The Products advertised or otherwise made available for purchase on the Properties are determined solely by the Branded Company, and Bensen shall have no liability to you for any modification, unavailability or discontinuation of any Products.
Delivery Services. Any delivery service you use, as provided at the option of the Branded Company, is at your sole discretion and Bensen shall have no liability to you for any delivery-related issues.
Eligibility and Registration
Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Bensen immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Bensen has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bensen has the right to suspend or terminate your Account and refuse any and all current or future use of the Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Properties if you have been previously removed by Bensen, or if you have been previously banned from any of the Properties.
Payment and Billing
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms from the Branded Company or any third party acting on their behalf (e.g., a delivery service company) and in effect at the time a fee or charge is due and payable. You must provide Bensen with a valid credit card (Visa, MasterCard, American Express, Discover, or any other issuers accepted by us), charge card, Branded Company-specific gift card or Branded Company-specific cash card (“Payment Provider”). You acknowledge and agree that for each order you place through the Service, the full cost of Products you order will be assessed against your Payment Provider. You acknowledge and agree that a command originating from your Account constitutes an authorization for the Service to charge the designated amount and you assume all liability for, and shall promptly pay, any and all such charges. Without limiting the foregoing, you acknowledge and agree that you will pay assessed charges for any and all orders placed from your Account. The Service will provide you with reasonable notice of any material modification in the fees charged for the services, which notice may be provided by posting the new fee schedule on the Website. You agree to immediately notify Bensen of any change in your billing address or the credit card used for payment hereunder.
You acknowledge that Bensen is not responsible for full or partial refunds on purchases of Products or related order fulfillment charges including any associated delivery-related charges. Addressing customer requests for refunds on purchases of Products will be the sole responsibility of the Branded Company location at which the order was placed in accordance with such location’s refund policies. Contact the location directly with the phone number provided as soon as possible to request a full or partial refund.
Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE PROPERTIES IS AT YOUR OWN RISK. THE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Bensen EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. Bensen MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE SERVICES IS DONE AT YOUR OWN RISK, AND Bensen MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Bensen OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
Intellectual Property Ownership
Except for the content and information you upload to the Services, you agree that Bensen and its suppliers (including the Branded Company) own all rights, title and interest in the Properties, including all trademarks, brand names, and logos therein. All such material is protected by relevant intellectual property laws, including copyright, trademark, patent and/or trade secret laws. Such material may not be modified, reproduced, transmitted, sold, offered for sale, publicly displayed, or redistributed in any way without our prior written permission and the prior written permission of any other applicable rights licensor. All trademarks, brands, slogans and other indicia of origin (“Marks”) that appear on or in connection with the Services are the property of Bensen and/or its affiliates, licensors (including the Branded Company) and/or licensees. You are not authorized to use any such Marks.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury
Please read this Arbitration Agreement carefully. It is part of your contract with Bensen and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Bensen should be sent to: 120 St. James Ave, 6th Floor, Boston,MA 02116. After the Notice is received, you and Bensen may attempt to resolve the claim or dispute informally. If you and Bensen do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Time Limits. If you or Bensen pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(g) 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, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Bensen in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Bensen WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Bensen.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Bensen may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.
(p) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Boston, MA, for such purpose.
Choice of Law
Export Control. You may not use, export, import, or transfer the Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Properties, and any other applicable laws. In particular, but without limitation, Bensen Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Bensen Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biBensengical weapons. You acknowledge and agree that products, services or technBensengy provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Bensen products, services or technBensengy, either directly or indirectly, to any country in violation of such laws and regulations.
Electronic Communications. The communications between you and Bensen use electronic means, whether you visit the Properties or send Bensen e-mails, or whether Bensen posts notices on the Bensen Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Bensen in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Bensen provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Force Majeure. Bensen shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Properties, please contact us at: Katapal, Inc. d/b/a Bensen,120 St. James Ave, 6th Floor, Boston, MA 02116. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
30 Newbury St
Boston, MA 02116
Copyright 2019 – Bensen