Breville ?USA, Inc.
Last Updated: May, 2018
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
All disputes arising under these Terms will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND BREVILLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. 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. (See Section 14).
1.???????? Eligibility. You must be at least 18 years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Site; and (iii) your registration and your use of the Site is in compliance with any and all applicable laws and regulations.
2.???????? Accounts and Registration. When you purchase any products through the Site, we may provide you with the option of registering an account. If you register for an account, you may be required to provide us with some information about yourself, such as your name, address, telephone number, email address, credit or debit card number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at 1-866-273-8455.
3.???????? Prices. All prices displayed on the Site are quoted in U.S. dollars. Breville reserves the right to restrict delivery to addresses within the United States. Shipping and handling fees and applicable sales/use tax will be added by Breville as necessary. Breville reserves the right to make changes to pricing and specifications without prior notice and without incurring any obligations. Breville reserves the right to limit the number of items ordered and to refuse services to any customer without prior notification. In the event that an item lists an incorrect price, either due to typographical or other error, Breville will have the right to refuse or cancel any such order placed for the incorrect price, regardless of whether the order is being or has been processed. If payment has already been made or if a credit card has already been charged for the purchase and the order is cancelled, Breville will promptly credit the credit card account in the amount of the incorrect price charged.
4.???????? Returns and Limited Warranty. All Breville products purchased through the Site are subject to our Return Policy and the Breville Limited Product Warranty.
5.???????? Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site or otherwise (“Feedback”), then you hereby assign to Breville all right, title, and interest in and to the Feedback, and any intellectual property rights subsisting in the Feedback with no compensation to you for such assignment.
6.???????? Ownership; Proprietary Rights. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Breville are protected by intellectual property and other laws. All Materials included in the Site are the property of Breville and its third-party licensors. Except as expressly authorized by Breville, you may not make use of the Materials. Breville reserves all rights to the Materials not granted expressly in these Terms.
7.???????? Third-Party Terms
7.1????????????? Linked Websites. The Site may contain links to third-party websites. Linked websites are not under Breville’s control, and, to the extent permitted by law, ?Breville is not responsible for their content.
7.2????????????? Third Party Links to the Site. If Breville authorizes you to deep-link your website or a service offered by your website to the Site, you agree that (a) Breville has no obligation to continue to provide or make the service available; (b) all conditions, disclaimers and limitations on use set forth in these Terms remain in effect; (c) all intellectual property rights relating to Breville and its technology, including all ownership rights, remain the sole and exclusive property of Breville; (d) you will be solely responsible for the data and content that you publish on your website or service; and (e) Breville may, at any time (in its sole discretion), remove any linked source or terminate your access to the Site and any Materials on the Site.
8.???????? Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:
a.?????? use the Site for any illegal purpose or in violation of any local, state, national, or international law;
b.????? violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c.?????? post, upload, or distribute any content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
d.????? interfere with security-related features of the Site, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
e.?????? interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Site; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site;
f.?????? perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;
g.????? sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h.????? attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
9.???????? Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes, to which you will be bound by virtue of continuing to transact activities through the Site. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10.???? Term, Termination and Modification of the Site
10.1????????? Term. These Terms are effective beginning when you accept the Terms or download, install access or use the Site, and ending when terminated as set for in Section 10.2.
10.2????????? Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Breville may, at its sole discretion, terminate these Terms, your account, or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. You may de-activate your account and terminate these Terms at any time within your account on the Site or by contacting customer service at 1-866-273-8455. Note that your account data may not be deleted upon account de-activation.
10.3????????? Effect of Termination.? Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Site; (ii) you will no longer have access to your account; (iii) you must remit to Breville any unpaid amounts due prior to termination; (iv) you will lose all of your order history and product registration information with Breville; and?(v) upon termination of these Terms, all payment obligations accrued prior to termination and Sections 3 through 15 will survive.
10.4????????? Modification of the Site. Breville reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Breville will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
11.???? Indemnity. You are responsible for your use of the Site, and you will defend and indemnify Breville and its affiliates, and their respective ?officers, directors, employees, consultants, subsidiaries and agents (together, the “Breville Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claims”) arising out of or connected with: (a) your use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims. This Section 11 is unenforceable and/or inapplicable where limited or prohibited by law (e.g., within the State of New Jersey).
12.???? Disclaimers; No Warranties
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. BREVILLE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BREVILLE DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BREVILLE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR BREVILLE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BREVILLE ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE AND YOUR DEALING WITH ANY OTHER SITE USER. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES OR SITES, AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
Notwithstanding the forgoing Breville does not disclaim any warranty or other right that Breville is prohibited from disclaiming under applicable law.
13.???? Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BREVILLE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BREVILLE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE BREVILLE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU HAVE PAID TO BREVILLE FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THIS SECTION 13 IS UNENFORCEABLE AND/OR INAPPLICABLE WHERE LIMITED OR PROHIBITED BY LAW (E.G., WITHIN THE STATE OF NEW JERSEY).
14.???? Dispute Resolution and Arbitration
14.1 Generally. In the interest of resolving disputes between you and Breville in the most expeditious and cost effective manner, you and Breville agree that every dispute arising in connection with these Terms or your (or any Authorized Users’) use of the Site will be resolved by binding arbitration. Arbitration is less formal 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. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BREVILLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.2 Exceptions. Despite the provisions of Section 14.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
14.3 Arbitrator. Any arbitration between you and Breville will be settled under the Federal Arbitration Act, and governed by the rules in place for consumer disputes (“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, by calling the AAA at 1-800-778-7879.
14.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Breville’s address for Notice is: Breville USA, Inc., 19400 S. Western Ave., Torrance, CA 90501. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Breville may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Breville must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Breville will pay you the amount awarded by the arbitrator, if any.
14.5 Fees. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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 that case, you agree to reimburse Breville for all amounts 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 must 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. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
14.6 No Class Actions. YOU AND BREVILLE 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 Breville 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.
14.7 Modifications to this Arbitration Provision. If Breville makes any future change to this arbitration provision, other than a change to Breville’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Breville’s address for Notice, in which case your account will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
14.8 Enforceability. If Section 14.6 is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.1 will govern any action arising out of or related to these Terms.
15.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Breville submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Site from our offices in California, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
15.3 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
15.5 Contact Information. The Site is offered by Breville USA, Inc., located at 19400 S. Western Ave., Torrance, CA 90501. You may contact us by sending correspondence to that address?
15.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.