TERMS OF USE

Effective Date: May 2, 2018

These terms of use (“Terms“) constitute a legal contract between you and Baker Mills, Inc. d/b/a Kodiak Cakes, LLC (“Kodiak Cakes” or “we,” “us,” or “our“) and govern all aspects of your use of the website, http://www.kodiakcakes.com/ (“Site“). Please read these Terms carefully. By accessing or using any of the information, materials, or functions available on the Site, you acknowledge and agree that you consent to the Terms. If you do not agree to be bound by the Terms, please exit the Site now.

Please be aware that we may change or replace the Terms from time to time, at our sole discretion. If we make changes to the Terms, we will notify you by posting those changes to the Site. Any modifications to the Terms will go into effect upon being posted to the Site. Your continued use of the Site after we post any changes to the Terms constitutes your consent to the updated Terms.

 

Eligibility

The Site is not intended for use by anyone under 13 years of age or by any person or entity in any jurisdiction or country where such use would be contrary to local laws or regulations.

 

Privacy

Kodiak Cakes has made a commitment to protecting the privacy of those who access and use the Site. The Privacy Policy is incorporated by reference in these Terms, and by using the Site, you are consenting to the Privacy Policy.

 

User and Accountholder Responsibilities

Some areas of the Site and some services are accessible only to registered users and accountholders. In order to access those areas of the Site, you will need to register, which includes providing us with your access credentials, such as an email address and password. We encourage you to use “strong” passwords that use a combination of upper and lower case letters, numbers, and symbols.

You are solely responsible for (i) authorizing, monitoring, controlling access to, and maintaining the strict confidentiality of your access credentials; (ii) not allowing another person to use your access credentials; and (iii) any damages that may be incurred as a result of your failure to maintain the strict confidentiality of your access credentials. Kodiak Cakes is not liable for any harm related to your disclosure of access credentials, or your decision (in violation of the Terms) to allow another person or entity to access and use the Site or services using your access credentials. You must immediately notify Kodiak Cakes if you become aware of any unauthorized use of your access credentials or any other concerns that you have about the misuse or security of your account by using the contact information listed below.

 

Your License

Subject to the Terms, Kodiak Cakes grants you a non-exclusive, non-transferable, limited, and revocable license to access the Site for your personal use only (“Your License”). Kodiak Cakes reserves the right, in its sole discretion, to terminate Your License or any services provided to you and to assert legal action with respect to your use of the Site that Kodiak Cakes reasonably believes is or might be in violation of the Terms, additional terms and conditions, or other Kodiak Cakes policies.

 

Kodiak Products and Pricing

Certain products may be available exclusively online on the Site. These products may have limited quantities and are subject to return or exchange only according to our Return Policy.

We have made every effort to display as accurately as possible the colors and images of our products that appear online. We cannot guarantee that your computer monitor’s display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on the Site is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any deficiencies with the products will be corrected.

Prices for our products are subject to change without notice. We shall not be liable to you or to any third-party for any modification, price change, suspension, or discontinuance of our products.

 

Online Purchases

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

You agree to provide current, complete, and accurate purchase and account information for all purchases made through the Site. You agree to promptly update your information, including your email address and payment information, so that we can complete your transactions and contact you as needed.

 

Intellectual Property

The Site and any content, materials downloaded, and intellectual property pertaining to or contained on the Site (including but not limited to copyrights, patents, database rights, graphics, designs, text, logos, trade dress, trademarks, and service marks) are owned by Kodiak Cakes or third parties; all rights, title, and interest therein shall remain the property of Kodiak Cakes and/or such third-party owner, as applicable. All content is protected by trade dress, copyright, patent, and trademark laws, as well as various other intellectual property and unfair competition laws.

You are authorized solely to view and retain a copy of pages related to the Site, as well as relevant documents, images, or other materials on the Site for your own personal use. You agree that you will not duplicate, publish, modify, create derivative works from, participate in the transfer of, post on the World Wide Web, or in any way distribute or exploit the Site, or any portion thereof, for any public or commercial use, without the express written consent of Kodiak Cakes. Additionally, you agree that you (a) will not remove or alter any author, trademark, or other proprietary notice or legend displayed on the Site (or printed pages produced from the Site); and (b) will not make any other modifications to any documents obtained from the Site other than in connection with completing information required to use the Site for its intended purposes.

 

Use of Information and Materials

The content, information, and materials contained on the Site and the Terms, policies, and descriptions that appear on the Site are subject to change. You accept sole responsibility for your use of the Site. Your use of the Site is limited to the intended functions of the Site. Unauthorized use of the Site is strictly prohibited. You may not use the Site in a manner that:

  • (a) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
  • (b) is unlawful, fraudulent, or deceptive;
  • (c) attempts to damage, disable, overburden, or impair Kodiak Cakes’ servers or networks;
  • (d) uses or launches any technology, including without limitation, “robots,” “spiders,” or “offline readers,” or other means to attempt to access content, networks, user accounts, or Kodiak Cakes’ systems in a manner that is not authorized by Kodiak Cakes;
  • (e) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
  • (f) encourages conduct that would constitute a criminal offense or that gives rise to civil liability;
  • (g) violates the Terms or applicable third-party terms; or
  • (h) Kodiak Cakes, in its sole discretion, determines to be a violation of the Terms or other Kodiak Cakes’ policies or to be otherwise unacceptable.

 

Third-Party Websites

The Site may contain links to other websites not operated or controlled by Kodiak Cakes (“Third-Party Websites“). The Kodiak Cakes Terms and Privacy Policy do not apply to Third-Party Websites. Please review the terms of use and privacy policy for any Third-Party Website that you may visit through a link on the Kodiak Cakes Site. Such Third-Party Websites may have terms of use and/or privacy policies that differ from those of Kodiak Cakes, and the Third-Party Website may provide less security than the Kodiak Cakes Site.

By creating a link to a Third-Party Website, Kodiak Cakes neither endorses nor recommends any products or services offered or information contained on the Third-Party Website. Kodiak Cakes disclaims liability for any information, materials, products, or services posted or offered at any of the Third-Party Websites linked to on the Kodiak Cakes Site. Kodiak Cakes also disclaims liability for any failure of any products or services offered or advertised on such Third-Party Websites.

 

NO WARRANTY

THE SITE, INCLUDING ALL CONTENT, INFORMATION, MATERIALS, LINKS, AND OTHER ITEMS PROVIDED BY KODIAK CAKES OR BY THIRD PARTIES, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. KODIAK CAKES DOES NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE SITE AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE SITE, CONTENT, INFORMATION, MATERIALS, LINKS, AND OTHER ITEMS PROVIDED BY KODIAK CAKES OR BY THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE TO USE THE SITE AT YOUR SOLE RISK AND THAT KODIAK CAKES CANNOT GUARANTEE AND DOES NOT WARRANT THAT YOUR ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT THE SITE WILL BE FREE OF COMPUTER VIRUSES.

 

LIMITATION OF LIABILITY

IN NO EVENT WILL KODIAK CAKES BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES ARISING IN CONNECTION WITH THE SITE OR YOUR USE THEREOF OR INABILITY TO USE BY ANY PARTY OR DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES ARISING IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE OR SYSTEM FAILURE, LOSS OF DATA, OR OTHER DEFECT RELATED TO THE SITE, EVEN IF KODIAK CAKES OR OUR REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES.

 

Indemnification

You agree to indemnify, defend, and hold harmless Kodiak Cakes, its officers, directors, employees, agents, partners, representatives, and licensors (the “Indemnified Parties” and each an “Indemnified Party“) from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from (a) any violation of these Terms (including negligent or wrongful conduct) by you; (b) your use of the Site; or (c) information provided by you. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.

 

Submissions

Unless otherwise indicated, any content submitted to Kodiak Cakes via the Site shall be deemed and remain the property of Kodiak Cakes. Kodiak Cakes shall be free to reproduce, use, disclose, and distribute, for any purpose, any information, idea, concept, know-how, or technique contained in the content provided to Kodiak Cakes through the Site or in conjunction with its services. Kodiak Cakes shall not be subject to any obligations of confidentiality regarding information submitted, except as may be expressly agreed in writing by Kodiak Cakes, or as otherwise specifically required by law.

 

System Outages, Slowdowns, and Capacity Limitations

At times you may experience difficulty accessing the Site or communicating with Kodiak Cakes through the Internet or other electronic wireless services as a result of high Internet traffic, transmission problems, systems capacity limitations, or other problems. Any computer system or other electronic device, whether it is yours, an Internet service provider’s, or Kodiak Cakes’, can experience unanticipated outages or slowdowns or have capacity limitations. Kodiak Cakes makes no warranty whatsoever to you, express or implied, regarding the availability of the Internet or cell or data service on your device.

 

Protecting Your Devices

Kodiak Cakes makes no warranty whatsoever to you, express or implied, regarding the security of the Site, including with respect to the ability of unauthorized persons to intercept or access information transmitted by you through the Site. You acknowledge and agree that you are solely responsible for maintaining the security of your devices. Kodiak Cakes is not responsible for any losses resulting from the loss or theft of your device or the loss or theft of your information transmitted from or stored on your devices.

 

Governing Law and Disputes

The Terms are governed by and construed in accordance with the laws of the State of Utah, without regard to principles of conflicts of law, which would result in the application of the laws of another jurisdiction. The U.S. District Court for the District of Utah has general jurisdiction and will be the exclusive venue for litigating any claims, actions, or proceedings related to the Site, Terms, or any other Kodiak Cakes policies or terms and conditions. Any such cause of action you may have must be commenced within one (1) year after the claim or cause of action arises, or within the shortest limit permitted under applicable law, or such claim or cause of action shall be forever barred.

 

Severability/No Waiver

If any provision of the Terms shall be deemed unlawful, void, or unenforceable for any reason, then such provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Kodiak Cakes’ failure to enforce the strict performance of any provision of the Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of the Terms.

 

Contact Us

Should you have any questions about the Terms, please contact us at flapjacks@kodiakcakes.com.

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