Terms of service

Terms of Service 

Last Updated: September 13, 2022 

 Welcome to www.cherricafe.com (the “Website”), owned and operated by Cherri LLC (“Cherri,” “we,” “us,” or “our”). The recipient of this information is assumed to be the consumer of any Cherri products or services, as an individual, entity, or otherwise, and is hereinafter referred to as “you” or “your”. Except as otherwise noted herein, these terms and conditions (the “Terms”) govern your use of the Website and Cherri’s services, applications, and content (collectively, the “Site”) and your purchase, receipt, or use of our products made available through the Site (collectively, the “Products”). 

PLEASE READ THESE TERMS CAREFULLY BECAUSE YOUR USE OF THE SITE OR PURCHASE OF THE PRODUCTS CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SITE, OR PURCHASE, RECEIVE OR USE OUR PRODUCTS. 

THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 

 Cherri reserves the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will provide notice of such changes by providing notice through the Site or in certain cases via email. By continuing to access or use the Site in any way after such notice has been provided, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Site or order, receive or use the Products. If you do not agree to the revised Terms, you are free to reject them, but in that case you may not access or use the Site or order, receive or use the Products.  

1. Account Creation; Eligibility. You may use the Site only if you can form a binding contract with Cherri, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. You may be required to sign up for an account, select a password and username, and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your user ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You agree that you will never share your user ID and password with anyone else for any reason. You agree that only you will use your account. You agree to contact Cherri immediately in the event you become aware of unauthorized access to your account. You agree that you are solely responsible for all activity that takes place in connection with your account and you agree to indemnify and hold harmless Cherri from any damages that arise out of or in relation to use of your account. You agree that you will not create more than one account. By registering and obtaining an account you affirm that you will follow the Terms and your registration constitutes your consent to enter into agreements with us electronically. Paying for the connectivity and data plans of your computer devices is your responsibility. Cherri has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Site. We will handle your personal information used to create your user ID consistent with our Privacy Policy [INSERT HYPERLINK TO PRIVACY POLICY], which is incorporated into these Terms by reference.

    

2. Terms of Sale. The terms of this section govern your purchases from Cherri. Additional terms and information may be provided during time of purchase. 

Orders, Pricing and Payments. Cherri strives to communicate accurate pricing and product information but will not be held responsible for any pricing, typographical, or other errors. The displayed colors of the Products depend upon the monitor of the user, and Cherri cannot guarantee that the user’s monitor will accurately portray the actual colors of the Products. Products displayed may be out of stock or discontinued, and prices are subject to change. Your order is subject to cancellation by Cherri, in Cherri’s sole discretion. Unless otherwise agreed to by Cherri, payment must be received by Cherri prior to Cherri’s acceptance of an order. Cherri may process payment for and ship parts of an order separately. Purchases may not be resold or exported. Your purchase is for your own use, not for resale or export. Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws. 

Shipping. You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by FedEx, however we reserve the right to use other shipping couriers as needed. Actual delivery dates may vary. Product title passes to you when the product is shipped. You have 30 days to notify Cherri of any missing, wrong, or damaged portion of your purchase or Cherri cannot be held responsible for these issues. Domestic orders are generally processed in 2 to 3 business days.  You should receive an email notification once your order has shipped. 

Subscription. Certain Products are made available with a paid subscription plan (a “Subscription”). Subscription levels, features, and pricing are available on the Website. Fees for Subscriptions (“Subscription Fees”) are due in advance for each billing period, with the initial payment due when you add a Subscription to your account (the “Subscription Start Date”). Except as expressly stated in these Terms, Subscription Fees are non-refundable and are based on our standard charges and billing terms in effect when payment is due. You must provide us with a valid credit card or other payment method we accept (“Payment Method”) prior to starting a Subscription and promptly update your account if there is any change to your payment information. We may change our fees and billing practices at any time, either by posting notice of such change on the Website or notifying you within the Site, provided that any such change will not apply to you until the next Subscription period or if you change your Subscription type.  

Automatic Renewal. Subscriptions will automatically renew at the rates then in effect, AND YOUR PAYMENT METHOD WILL BE CHARGED UPON RENEWAL UNLESS YOU CANCEL YOUR SUBSCRIPTION as set forth below. By subscribing, you authorize us to charge your Payment Method at the beginning of any Subscription period if you have not cancelled your account by such time. If we cannot process payment from your Payment Method, we will reach out to you to update your Payment Method information or make other arrangements for payment. If we do not receive payment within fifteen (15) days of the renewal, we may terminate your Subscription. 

Cancellation. Subscriptions may be cancelled at any time through your online account. You will be able to use any Subscription you cancel until its scheduled expiration, but you will not be eligible for any pro-rata refund of the current term. However, we will refund the full Subscription Fee if you request a refund within thirty (30) days of the Subscription Start Date or any Subscription renewal date.  

Taxes. Any sales, use, value added, or other tax based on the Subscription or Products ordered through the Website that we are required to pass through to customers is automatically calculated and added to all orders where applicable (except for users in the European Economic Area, (“EEA”) where VAT is included in the amount charged to you by Cherri). To the extent applicable, all payments for the Products will be made free and clear of, and without reduction for, any withholding taxes. If Products are subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates. Sales tax is the sole responsibility of you, the user. 

Payment Processors. We currently use Shopify for payment services (e.g., card acceptance, merchant settlement, and related services) but reserve the right to change services from time to time (“Payment Processor”). By paying for a Product or a Subscription, you agree to be bound by the applicable Payment Processor’s terms and conditions, privacy policy, and any other terms and policies and authorize us and the Payment Processor to share any information and payment instructions you provide with your Payment Method and any other Third-Party Service provider(s) solely as required to complete your transactions. 

Returns. The Cherri support team will answer all inquiries as soon as possible. If for any reason, you need to return your Products (purchased from www.cherricafe.com), Cherri will provide an exchange or refund you so long as such product is unused and undamaged with the original packaging intact, and the return to Cherri is initiated within 30 days of receiving your product with all original packaging and the receipt of purchase. If you would like to return a product, please email info@cherricafe.com and Cherri will assist you from there. When Cherri accepts your return, we will process the refund for your order. PLEASE NOTE THAT ALL REFUNDS ARE EXCLUSIVE OF SHIPPING COSTS, HANDLING, GIFT BOX, RESTOCKING FEE AND OTHER APPLICABLE CHARGES. All sales in connection with international orders shall be void. We only ship inside the continental United States. ARE FINAL, as such, Cherri does not offer returns or exchanges with respect to international sales. Only regular priced items may be refunded, unfortunately sale items cannot be refunded. For any questions, comments or concerns regarding RETURNS OR EXCHANGES please email info@cherricafe.com. Notwithstanding any provision to the contrary herein, all sale for Products that contain customization and/or personalization, ARE FINAL and cannot be returned.  

1. Security Rules. Violations of system or network security may result in civil or criminal liability. Cherri investigates violations and may involve, and cooperate with, law enforcement authorities in prosecuting any user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following: (i) accessing data not intended for you or logging on to a Cherri server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt); (iii) attempting to interfere or interfering with the operation of our Site, our provision of services to any other visitors to our Site and our hosting provider or our network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “email bombing” or “crashing” the Site; and (iv) forging any TCP/IP packet header or any part of the header information in any email or transmission or posting to our Site.
2. Prohibited Uses; Access. The Site may be used only for lawful purposes and is available only for your personal, noncommercial use, which shall be limited to viewing the Site, purchasing Products, providing information to the Site and downloading product information for your personal review. You are responsible for your own communications, including the transmission, posting and uploading of information, and are responsible for the consequences of such communications to the Site. Cherri specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following: (i) posting any information that is incomplete, false, inaccurate or not your own; (ii) engaging in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation, or that would fail to comply with accepted Internet protocol; (iii) communicating, transmitting or posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the irrevocable permission of the owner to post it; (iv) communicating, transmitting or posting material that (a) reveals trade secrets, unless you own them or have the irrevocable permission of the owner, (b) infringes on any other intellectual property, privacy or publicity right of another, or (c) is in violation of applicable laws or regulations; (v) communicating, transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of any applicable export control laws; or (vi) attempting to interfere in any way with the Site’s or Cherri’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except as specifically permitted on the Site. The Site, including all of its information and content, such as text, data, wallpaper, icons, characters, artwork, images, photographs, graphics, music, sound, messages, software and the HTML used to generate the pages (collectively, “Materials and Content”), is Cherri’s property or that of our suppliers or licensors and is protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided on the Site or in these Terms, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit or distribute any Materials and Content from this Site in whole or in part, for any public or commercial purpose without the specific prior written permission of Cherri. Notwithstanding the foregoing, we encourage you to re-post and share Materials and Content that we post on our official social media channels from time-to-time, unless explicitly stated otherwise. We grant you a personal, limited, nonexclusive, nontransferable license to access the Site and to use the information and services contained therein solely for your personal, noncommercial use as described below. We reserve the right, for any reason or for no reason, in our sole discretion and without notice to you, to revise the products and services described on the Site and to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, the Materials and Content on the Site as well as features and/or hours of availability of the Site, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
3. Proprietary Rights. As between you and Cherri, Cherri is the owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on the Site, and is the copyright owner or licensee of the Materials and Content on the Site, unless otherwise indicated. The Cherri logos, designs, titles, phrases and product names and the copyrights, trademarks, service marks, trade dress and/or other intellectual property in such materials (collectively, the “Intellectual Property”) are owned by Cherri and may be registered in the United States and internationally. You agree not to display or use the Intellectual Property in any manner without Cherri’s prior written permission. Nothing on the Site should be construed to grant any license or right to use any of the Intellectual Property without the prior written consent of Cherri. Except as otherwise provided herein, use of the Site does not grant you a license to any Materials and Content or features you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Materials and Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Materials and Content or screens for any purpose except as otherwise provided by Cherri. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. The information on the Site, including, without limitation, all site design, text, graphics, interfaces and the selection and arrangements of such is protected by law, including, but not limited to, copyright law.
4. User Content; Social Media Agreement.
5. We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you: (i) submit or post on the Site, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, TikTok and Pinterest, that are tagged with #Cherri, #cherricafe or any other Cherri promoted hashtag (collectively “User Content”) shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to Cherri a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness (and the likeness of any other person appearing therein, including, without limitation, any minor child) included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including, but not limited to, in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to: (a) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms; or (b) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Cherri will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Cherri shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Cherri retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
6. By submitting or posting User Content on the Site, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that: (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you hereby give permission on behalf of any minor children that appear in the User Content, to which you are the legal guardian, to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iv) you are 16 years of age or older; and (v) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by Cherri, you will furnish Cherri any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold Cherri and its members, manager, employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
7. Cherri does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge Cherri and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity; or (ii) the use by Cherri or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Cherri has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Cherri acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If Cherri becomes aware of any User Content that allegedly may not conform to these Terms, Cherri may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Cherri has no liability or responsibility to Users for performance or nonperformance of such activities.
8. Without limiting the foregoing in any way, Cherri has the absolute right to remove and/or delete without notice any User Content within its control in its sole discretion. You consent to such removal and/or deletion and waive any claim against Cherri for such removal and/or deletion. Cherri is not responsible for failure to store posted content or other materials you transmit through the Site. You should take measures to preserve copies of any data, material, content or information you post to the Site or any other sites or platforms.
9. Copyright Complaints. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Cherri’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. §512 (“DMCA”). Please be advised that to be effective, the notice must include ALL of the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party; (v) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or as a matter of law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices of claimed copyright infringement and counter-notices should be delivered via email to info@cherricafe.com with “Attention: DMCA TAKEDOWN REQUEST” in the subject. In accordance with the DMCA, it is our policy to terminate use of our Site by repeat infringers in appropriate circumstances.
10. Privacy Policy. Notwithstanding anything else to the contrary contained in these Terms, Cherri’s use of any personally identifiable information (name, email, etc.) you provide via the Site shall be governed by our Privacy Policy. For further information regarding Cherri’s protection of your personal information, please refer to our Privacy Policy [INSERT HYPERLINK TO PRIVACY POLICY].
     
11. Third Party Links. The Site may contain links to websites, applications or other products or services operated by other companies (“Third Party Platforms”). Cherri does not endorse, monitor or have any control over these Third Party Platforms, which have separate terms of use and privacy policies. Cherri is not responsible for the content or policies of Third Party Platforms and you access such Third Party Platforms at your own risk.
12. California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please either send an email to info@cherricafe.com. Residents of California may contact the California Department of Consumer Affairs Division of Consumer Services, Complaint Assistance Unit by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13. Disclaimers and Limitations of Liability.
14. Cherri publishes information on its Site as a convenience to its visitors. While Cherri attempts to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the Site at any time without notice. The products and services described on the Site may not be available in your region. Cherri does not claim that the information on the Site is appropriate to your jurisdiction or that the products and services described on its Site will be available for purchase in all jurisdictions.
15. YOU ASSUME ALL RESPONSIBILITY AND RISK WITH RESPECT TO YOUR USE OF THE PRODUCTS AND SITE, WHICH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHERRI DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA THE SITE, INCLUDING, WITHOUT LIMITATION, ALL MATERIALS AND CONTENT, FUNCTIONS, SERVICE AND PRODUCTS PROVIDED ON THE SITE, WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OR CONTENT OF INFORMATION, UNINTERRUPTED ACCESS AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CHERRI DOES NOT WARRANT THAT THE SITE OR ITS FUNCTION OR THE MATERIALS AND CONTENT OR THE PRODUCTS MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. CHERRI MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THIS LIMITATION OF LIABILITY MAY NOT APPLY TO ALL USERS AND MAY BE LIMITED BY APPLICABLE LAW, AND CERTAIN USERS MAY HAVE ADDITIONAL RIGHTS NOT EXPRESSED HEREIN.
16. Cherri makes no warranties of any kind regarding any sites not controlled by Cherri to which you may be directed or hyperlinked from this Site. Hyperlinks are included solely for your convenience, and Cherri makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such sites not controlled by Cherri. Cherri does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Site.
17. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CHERRI, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF THE SITE OR THE ORDER, RECEIPT OR USE OR MISUSE OF ANY PRODUCT OR THE MATERIALS AND CONTENT OR FUNCTIONALITY ON OR ACCESSED THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF CHERRI OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES  AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF CHERRI AND THE OTHER CHERRI PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF THE PRODUCTS PURCHASED FROM THE SITE EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ACCESS OR USE OF THE SITE OR CONTENT, EXCEED THE GREATER OF $100 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE CHERRI AND THE OTHER CHERRI PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THIS LIMITATION MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
18. Indemnity. You agree to indemnify and hold Cherri, its managers, members, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including actual outside attorneys’ fees and court costs, in any way arising from, related to or in connection with your use of the Site, your violation of these Terms, your misuse of the Products or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third-party claim that any information, materials or User Content you provide infringes any third-party proprietary right. You further agree to reimburse Cherri, within thirty (30) days of each demand for reimbursement, for any and all costs, liabilities, expenses, fees, fines, professional fees and other amounts paid or incurred by Cherri (or such other indemnitee) in connection with the foregoing indemnity.
19. Governing Law and Disputes. THE PARTIES AGREE THAT THESE TERMS, ANY SALES THEREUNDER, AND/OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND CHERRI ARISING FROM OR RELATING TO THESE TERMS, USE OF THE PRODUCTS, ITS INTERPRETATION OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THESE TERMS, CHERRI’S ADVERTISING, OR ANY RELATED PURCHASE SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAW. 
20. Dispute Resolution and Binding Arbitration. YOU AND CHERRI ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND CHERRI its members, managers, agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase arising from or relating in any way to your purchase of the Products, your use of the Site, these Terms, its interpretation or the breach, termination or validity thereof, the relationships that result from these Terms (including relationships with third parties who are not signatories to these Terms), Cherri’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or these Terms is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the customer’s individual dispute or controversy. You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR CHERRI SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS/USERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be class arbitration). The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Payment for all filing, administration and arbitrator fees will be governed by the rules of the applicable arbitration administrator, provided, that Cherri will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If you prevail on any claim that affords the prevailing party statutory attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: (i) American Arbitration Association: (800) 778-7879, www.adr.org; and (ii) JAMS: (800) 352-5267, www.jamsadr.com. If for any reason a claim proceeds in court rather than in arbitration each of you and Cherri waive any right to a jury trial. Moreover, each of you and Cherri both agree that either party may bring suit in court to enjoin infringement or misuse of intellectual property rights.
21. General. These Terms constitute the entire agreement between you and Cherri and govern your use of the Site, and they supersede any prior agreements between you and Cherri, provided, however, that these Terms shall be read in conjunction with our “Privacy Policy,” as applicable. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site. Cherri may terminate this agreement and deny you access to the Site at any time, immediately and without notice, if in Cherri’s sole discretion you fail to comply with any provision of these Terms. You agree that no joint venture, partnership, employment or agency relationship exists between Cherri and you as a result of these Terms or your use of the Site. Any claim or cause of action you may have with respect to Cherri or the Site must be commenced within one (1) year after the claim or cause of action arose or be forever barred. The failure of Cherri to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision in these Terms is held invalid, the remainder of these Terms shall continue to be enforceable. If any provision in these Terms is deemed unlawful, void or unenforceable, then that provision is deemed severable from these Terms and the remaining provisions are still valid and enforceable. You may not assign these Terms nor any of your rights or obligations under these Terms without Cherri’s express prior written consent. These Terms inure to the benefit of Cherri’s successors, assigns, affiliates and licensees. The section titles in these Terms are for convenience only and have no legal or contractual effect. To contact us with any questions or concerns in connection with these Terms or the Site, or to provide any notice under these Terms to us, please contact us at: 

 Cherri LLC 

info@cherricafe.com