CAKE Terms of Service
Last Updated: 14-July-2024
THESE TERMS CONTAIN MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND JURY WAIVER PROVISIONS. BY USING THE SERVICES, YOU AGREE TO THESE PROVISIONS, WHICH APPEAR IN SECTIONS 14 AND 15 OF THESE TERMS.
1. INTRODUCTION
CFB, Inc., d/b/a CAKE (“CAKE”, “we”, “us”, “our”) provides an invitation-only, subscription-based membership community for shoppers (the “Program”). These Terms of Service (“Terms”) are a legally binding agreement between CAKE and you that govern your access to and use of cakemembers.com and any other CAKE website that we indicate is subject to these Terms (collectively, the “Site”), the Program, and any other products, services, or events provided by us, and all associated CAKE features, applications, widgets, and their respective contents branded as CAKE, or offered by CAKE through the Site or the Program, including without limitation, any CAKE features and applications and our text messages and text message programs (collectively, the “Services”).
As part of the Program, CAKE makes available to its members certain privileges. Membership privileges may include offers from the brands we work with (our “Brand Partners”) and digital cards that can be redeemed with participating Brand Partners for benefits determined by the Brand Partners (“CAKE Cards”). Although CAKE makes available CAKE Cards, which are themselves part of the Program, the terms “Program,” “Site,” and “Services” do not include (i) any Brand Partner’s activities with respect to CAKE Cards, (ii) any other products, services, or acts or omissions of Brand Partners. Brand Partners are solely responsible for all of their acts and omissions, including any that relate to CAKE Cards or that otherwise relate to CAKE.
By using the Services, (i) you agree to these Terms, and (ii) you authorize the collection, use, disclosure, and other handling of your information as set forth in our . You must comply with these Terms and any other policies, rules and guidelines that we provide in the Services. If you do not agree or comply, you may not use the Services.
We may terminate these Terms at any time. From time to time, we may, in our sole discretion, update these Terms by posting the updated version and updating the “Last Updated” date at the top of the page. Unless you first reject the updated Terms by discontinuing all use of the Services and sending a notice of termination to termination@cakemembers.com “Update Effective Time”, which is the earlier of: (a) 11:00 a.m. Eastern time on the 30th day after we post them (or a later date that we specify in the update, if any); (b) your first ever use of a new or changed feature of the Services that is subject to the updated Terms, or (c) your taking some other action to specifically accept the updated Terms, such as clicking to accept them. (Provisions (a) and (b) of the preceding sentence do not apply to updates to Section 14 below.) You must send the termination notice from the email address associated with your account, or if this is not possible, you must promptly cooperate with us to identify your account. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the account holder and that you are the actual sender of the termination notice. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. You are prohibited from using the Services after sending a notice of termination, except as may be necessary to follow any instructions we may provide via email for authentication of your identity and request. If you violate this requirement and do use the Services after sending a notice of termination (and before we block your access), your termination notice will be void as if it had never taken effect, and the updated Terms will take effect (or will have taken effect) at the Update Effective Time.
You may not use the Services if you are under the age of 18 or if we have prohibited you from using the Services.
2. MEMBERSHIP
Accounts. In order to use some of the features of the Services and to purchase a subscription to the Services, you may be required to register for an account. You are responsible for ensuring that (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. We may choose to suspend or terminate your account at any time in our sole discretion, including if we determine that you have violated any provision of these Terms. You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your account. You agree not to share your login credentials or access to the Services with anybody or create more than one account. You may only have one account on the Services. For example, you may not have multiple concurrent accounts under different names and email addresses. If you close your current account and later wish to rejoin the Services, you must use the same information (including the same email address) to create a new account as you used to create your previous account. If you wish to use different information, you must notify us at the contact information at the bottom of these Terms.
Subscription. Some features of the Services, such as a membership and access to the Program, require a subscription. If you enroll in a recurring subscription, you are subscribing to an automatically renewing subscription requiring recurring payments at the stated frequency (e.g., monthly or annual) until cancelled. You will be charged your first subscription fee and any applicable taxes on the date you purchase your subscription or after a free trial ends. Your subscription will automatically continue at the interval selected during enrollment, and you will be charged at the then-current price (including any applicable taxes), unless at least 24 hours prior to the end of the current subscription period: (a) you terminate your account; (b) you cancel your subscription (as described below); (c) we decline to renew your subscription; or (d) these Terms are otherwise properly terminated as expressly permitted herein. To use the Services, you must have Internet access, a device that can utilize the Services and, if applicable, a valid form of payment. Additional technology and resource requirements for subscriptions and certain other Services are specified in Section 16 of these Terms. You authorize us to charge any form of payment you provide, in connection with your subscription. Your billing will include your subscription fees and any applicable taxes and transaction fees.
We may receive updated credit card information (new credit card number or updated expiration date) from your credit card issuer and may use these new details in order to help prevent any interruption to your subscription. If you would like to use a different payment method or if there is a change in payment method, please visit the settings area of your account to update your billing information. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your access to the Services or cancel your subscription. You will be responsible for paying all past due amounts.
If a stated price or other material information is determined by us in our sole discretion to be in error, we are not under any obligation to offer you the subscription at that price and reserve the right to cancel, terminate or not process your order (including accepted orders). We will notify you of the error and either provide you with a refund or give you the opportunity to cancel your order and obtain a refund if payment has already been made.
You acknowledge that the timing of when you are billed may vary, including if your subscription began on a day not contained in a given month (e.g., if you have a monthly subscription and became a paying subscriber on January 31, your payment method would be billed next on February 28), due to free trials and other promotional offers, or changes in your subscription or payment method.
Free Trial and Promotional Rates. We may offer promotional trial Subscriptions for free or at special discounted prices. Such trial or promotional memberships are subject to these Terms except as otherwise stated in the promotional offer, including which users are eligible for the promotional memberships. Trials and promotional memberships may be available to one per household and you may be limited in your ability to combine promotions.
If your subscription includes a free trial, you will not be charged the applicable fee during your free trial. To obtain the free trial, you may be required to provide a credit card or other payment method to ensure uninterrupted access and continued use after the free trial ends. Upon completion of your free trial, your subscription will automatically convert into a paid subscription and your payment method will be charged the applicable fee unless you have cancelled your subscription. To view the subscription price, please access your account information when you login for the Services. You may cancel your subscription during your free trial to avoid being charged as described above. We reserve the right to terminate any free trial period at any time.
If your subscription includes a promotional rate, you will be charged the promotional rate for the relevant number of billing periods and upon completion of that period, your subscription will continue to automatically renew at the then-applicable full rate.
Any free trial period is at the sole discretion of CAKE and we may limit eligibility or duration to prevent misuse. You may only be permitted to use one free trial or discounted price offer. If your subscription is ever cancelled or terminated for any reason, and you purchase an additional subscription, you may not be eligible for a free trial or to take advantage of another discounted price offer.
Membership Privileges. For more information about CAKE Cards and relevant restrictions on eligibility and use, please see Section 9 of these Terms below. Members may be able to invite others to become CAKE members. CAKE may limit the number of individuals that a member may invite. CAKE is under no obligation to grant membership to anyone invited to become a member, and may deny membership to anyone for any reason in its sole discretion. Further, CAKE is under no obligation to make any privileges available and reserves the right to change or discontinue any privileges at any time, with or without notice to you, in its sole discretion.
Cancellation. You may cancel your subscription at any time through the settings in your account. When you cancel a paid subscription, you cancel only future charges associated with your subscription, and the cancellation will become effective at the end of your current subscription period. In order to avoid future charges, you must cancel your subscription at least 24 hours prior to the end of your current subscription period. If you cancel, your right to use the subscription Services will continue until the end of your then-current subscription period (unless we provide you with a refund or otherwise allow you to use the unused portion towards another service or subscription) and will then terminate without further charges.
No Refunds. EXCEPT AS OTHERWISE STATED HEREIN OR REQUIRED BY APPLICABLE LAW, YOUR PAYMENT IS NONREFUNDABLE. If you cancel your subscription, you will not receive any refund and you will continue to have access to the subscription services through the end of the subscription period. We reserve the right to issue refunds, credits, or discounts at our sole discretion. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future and we may terminate your subscription and access to the Services.
Suspension and Termination. We may suspend or terminate your subscription or the Services at our sole discretion for any reason or no reason and without any notice. We may do so, for example, for any conduct that CAKE in its sole discretion, believes violates any applicable law, violates these Terms or is otherwise harmful to the interests of CAKE. If we terminate your subscription, we may, in our sole discretion, give you a prorated refund based on the amount of time remaining that you cannot use; provided, however, that we will not be obligated to grant you a refund if we terminate your account or your subscription because we determine, in our sole discretion, that your actions or your use of the Services violate these Terms or any applicable law, or have harmed another user.
Changes to Subscription or Services. We may change the subscription terms or subscription fees at any time on a going forward basis in our discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change your subscription before applying those changes to your account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a subscription. Your continued use of the Service after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your subscription. If you accept the new subscription, its terms and conditions will apply for that renewal and all renewals going forward.
We reserve the right to refuse to provide the Services to anyone for any reason at any time. We may change, add, or remove features, products, or functionalities (including CAKE Cards available for selection), or we may also suspend or stop the Services altogether. We may take any of these actions at any time for any reason, with or without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
3. INTELLECTUAL PROPERTY RIGHTS
All content and materials on the Services are owned by CAKE and its licensors, including information, material, software, images, text, graphics, “look and feel” of the Services, and all related intellectual property rights (collectively, “Materials”). The Services and Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. Subject to your compliance with these Terms, CAKE grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use the Services solely for your personal, non-commercial use consistent with these Terms. You will not obtain any ownership interest in the Materials or the Services through these Terms or otherwise. The Posting or display of any Materials does not constitute a waiver of any rights in such Materials. All rights to Materials are reserved to their respective copyright owners. Except as expressly authorized by these Terms, you may not copy, reproduce, distribute, republish, download, perform, display, Post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of CAKE or the respective copyright owner. CAKE authorizes you to use only the Materials that we intentionally make available to you. You must keep intact all copyright and other proprietary notices contained in the Materials. You may not modify or adapt the Materials in any way or otherwise use them (such as for any public or commercial purposes). The trademarks, service marks, trade names, trade dress and logos (collectively, "Marks”) contained or described on the Services (including, without limitation, any marks associated with any products available on the Services) are the sole and exclusive property of CAKE and/or its licensors (including, as applicable the Brand Partners) and may not be copied, imitated, or otherwise used, in whole or in part, without the prior written authorization of CAKE and/or the relevant licensor. In addition, all page headers, custom graphics, button icons and scripts are Marks of CAKE and may not be copied, imitated or used in whole or in part, without our prior written authorization.
You may link to any of our Services from your website, blog, application, platform, or services only if (a) the link is only to the public-facing portions of our Site that we intentionally make available to the general public without restriction and without any login requirement, (b) the link sends the user directly to the respective Site page when the user clicks on the link; (c) you do not insert any intermediate page, splash page, or other content between the link and the Site. You may not use the link or do anything else in a manner that suggests CAKE, the Services, or individuals or Brand Partners featured in the Services, promote or endorse your or any third party’s cause, idea(s), product(s), site(s), application(s), platform(s), or service(s).
From time to time, you may provide us with comments, suggestions, or ideas for enhancements, improvements, changes, or additions to the Services or our business in general, including ideas for new features, materials, and other content (“Feedback”). By providing us Feedback, you grant to us exclusive ownership of the Feedback and of all intellectual property rights and other rights in it, and you will provide us with reasonable cooperation in documenting this grant. CAKE has no obligation to do anything with Feedback, but we will have the full, worldwide, unencumbered right to use, incorporate, and otherwise fully exercise and exploit any such Feedback via all forms of media, distribution methods, and technology now known or later developed, for any purposes, commercial or otherwise, and to transfer or license our rights in the Feedback, without notice, acknowledgement or compensation to you.
4. MEMBER CONTENT
The Services may enable you to submit, post, upload, modify, add, or otherwise make available (collectively, “Post”)through the Services content such as profile information, video clips, photographs, public messages, ideas, comments and other content (collectively, “Member Content”) that may or may not be viewable by other members and users. Member Content is part of the Materials as defined in Section 4 of these Terms.
By Posting Member Content, you grant CAKE a perpetual, irrevocable, nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, display and distribute, translate, communicate, and otherwise use the Member Content in connection with the operation the Services or other aspects of our business, including to use the Member Content for CAKE’s promotional, advertising or marketing purposes, in each case via all forms of media, distribution methods, and technology now known or later developed. For example, we might include content from a Post in an advertisement about the Services. This license includes the right for CAKE to make Member Content available to Brand Partners and to other companies, organizations, business partners, or individuals (including those who collaborate with CAKE for communication, distribution, or publication) and to make Member Content publicly available. This license also includes the right for us to allow other users of the Services to use Member Content in the manner permitted by the then-current Terms.
You acknowledge and agree that all Member Content submitted under your account or in your name, whether publicly posted or privately transmitted, is your sole responsibility. This means that you, not CAKE, are entirely responsible for all Member Content that you upload, Post, share, or otherwise make available via the Services. You further agree that you have all required rights to submit, Post, upload or otherwise use or disseminate such Member Content without violation of any third-party rights. Under no circumstances will CAKE be liable in any way for any Member Content. You, or your licensors, as applicable, retain ownership of any copyright or other intellectual property rights you may have in your Member Content, subject to the non-exclusive license granted above. You agree to pay all royalties, fees, and any other monies owed to any person by reason of any Member Content you Post.
Please keep in mind that, depending on how and where you Post Member Content, it may be visible to other CAKE members. In addition, even if you make Member Content available to only one or a small number of other CAKE members, these members may make the Member Content available more broadly. Please use discretion when Posting Member Content. You Post Member Content at your own risk. For this reason, please assume that all your Member Content may become public, though we have no obligation to make it public. Although certain parts of the Services may have features to delete or modify certain Member Content as it is visible to you or others, CAKE may preserve any version of Member Content despite the use of such features. CAKE may use and disclose any version of Member Content as described in our Privacy Policy at https://cakemembers.com/privacy-policy. As noted in our Privacy Policy, we may disclose Member Content in various circumstances, such as to comply with applicable laws, regulations, or legal process, including in response to subpoenas, warrants, or court orders, or to cooperate with legal investigations.
You acknowledge that CAKE and its designees have the right (but not the obligation) in their sole discretion to pre-screen, remove, or refuse to publish any Member Content in whole or part, at any time in its sole discretion. You grant CAKE and its authorized agents the permission to view, monitor, edit, delete or otherwise moderate any Member Content, including any unpublished Member Content, at any time, but you agree that CAKE has no obligation to do any of that. The fact that any particular Member Content is accessible does not mean that we agree with it, support it, or believe it to be safe or reliable, or that it complies with our Terms, or that we have even reviewed it: it means only that we have not taken it down or deleted it. You understand that by using the Services, you may be exposed to Member Content that you may consider to be offensive or objectionable. Your use of Member Content and anything related to it (such as participation in events it mentions) is at your own risk.
5. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
It is CAKE’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who infringe the intellectual property of others. If you believe your intellectual property is being infringed by or on the Services, please submit a complaint and request for takedown of specific material to us at copyright@cakemembers.com. Please provide us with the following information:
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that you claim has been infringed;
· a description of where the material that you claim is infringing is located on the Services;
· your address, telephone number, and email address;
· a 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;
· a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
CAKE’s Copyright Agent can be reached at:
Dave McLaughlin
c/o CFB, Inc., d/b/a CAKE
https://cakemembers.com
575 Lexington Ave
New York, NY 10022
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
6. USAGE RESTRICTIONS
You must use the Services only in compliance with these Terms and applicable law. You may not do, attempt to do, enable, or encourage anyone else to do, anything illegal or (as determined by us) anything objectionable or inappropriate in connection with the Services, including but not limited to the following:
· Post, upload, create, publish, store, submit, transmit, or otherwise share any Member Content that: (i) is confidential and for which you do not have all necessary rights to disclose or to grant us the license described above; (ii) may or does infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, these Terms, the rights of any party, or otherwise create liability or violate any applicable local, state, national, or international law or regulation or would give rise to civil or criminal liability; (iv) is fraudulent, false, misleading, or deceptive; (v) impersonates or misrepresents your affiliation with, any person or entity or contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences; (vi) is defamatory, obscene, pornographic, vulgar, offensive, unlawful, libelous, indecent, lewd, suggestive, abusive, or inflammatory; (vii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (viii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (ix) promotes illegal or harmful activities or substances; or (x) contains any viruses, corrupted data, or other harmful, disruptive, or destructive files or content;
· use the Services in violation of, or in connection with violating, any applicable law or any legal or contractual rights of us or any third party, or any obligations you may have to any party (including, without limitation, intellectual property rights, privacy or publicity rights, and confidentiality obligations);
· reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, or use of or access thereto;
· upload, email, or otherwise transmit any material that contains viruses, corrupted files, Trojan horses, worms, or any other computer code, software, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment or that may adversely affect the operation of the Services;
· reverse-engineer, disassemble, decompile, transcribe, store in a retrieval system, translate into any language or computer language, re-transmit in any form or by any means (electronic, mechanical, photocopying, recordation, photo-reproduced, or otherwise), or reproduce any Material on the Services without the express prior written permission of CAKE or its licensors;
· hack the Services or perform any other activity that may damage, detrimentally interfere with, intercept or expropriate any system, personal information, or other data, or perform any activity to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
· use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology or any similar or equivalent manual process to access, acquire, copy, or monitor any portion of the Services, or in any way reproduce or circumvent any aspect of the Services (such as the navigational structure or presentation of any of the Services), or to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services;
· access the Services from any territory where it is illegal to do so (if you reside outside the United States and use the Services, you do so on your own initiative and are responsible for compliance with your local laws);
· use the Services in any way that is harmful to any individual or entity, including CAKE or a Brand Partner; or
· use the Services in any way not specifically permitted by these Terms.
We may use technical means to detect and block suspected or potential prohibited activity, but our failure to do so is not a waiver of this prohibition. These Terms do not prohibit the normal use of personal accessibility technology (such as a screen reader for individuals with visual impairment) to access the Services as intended.
If you violate any provisions or restrictions of these Terms, we reserve the right, in our sole discretion and without notice to you, to terminate, delete, and/or deactivate your account, and/or block or limit your access to the Services. We are not liable to you or any third party for any termination of your account or access to the Services. Our failure to enforce this Section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section does not create any private right of action on the part of any third-party or any reasonable expectation that the Services will not contain any Member Content that is prohibited hereunder, and we disclaim all liability in connection with Member Content that violates these Terms.
7. THIRD-PARTY SERVICES
The Services may contain links to or integrations with third-party websites, platforms, applications, or services, including the websites, apps, and stores operated by our Brand Partners (all of the foregoing collectively, “Third-Party Services”) that are subject to different terms and privacy practices. Your use of and interactions with any Third-Party Services (including any purchases made on Third Party Services) are governed by the third party’s terms and not by these Terms. You interact with Third-Party Services at your own risk.
We do not own or control Third-Party Services, and we are not responsible or liable for any aspect of such Third-Party Services, including but not limited to any harm or damages related to any interactions or transactions you may have with Third-Party Services (such as any information, content, or materials provided by Third-Party Services or your purchase or use of any products or services from Third-Party Services). Links and integrations to Third-Party Services are not an endorsement or recommendation.
You should review any third party’s policies and practices before using Third-Party Services. Complaints, claims, concerns, or questions regarding Third-Party Services or other third-party products or services should be directed to the third party.
8. COMMUNICATIONS
In General. We may communicate with you using email or autodialed or prerecorded calls and text messages at any telephone number that you provide us, via the App, or via push notification to your mobile device, to: (a) notify you regarding your account; (b) troubleshoot problems with your account; (c) resolve a dispute; (d) collect a debt; or (e) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
You agree to receive electronic communications from us. These communications may include notices about your account and information concerning or related to the Services. 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, and will have full legal effect.
You also agree that any transaction or agreement undertaken on or through the Services, including your agreement to these Terms, is an electronic transaction or agreement.
We may route phone and text communications, and any other communications, through a third-party service provider, and we or (if we authorize them) the service provider may record telephone, text, or other communications you have with us or our agents for quality and training purposes, such as for protection or legal compliance purposes.
To adjust your push notification settings, please view the “settings” menu on your device. You can opt out of promotional emails (including marketing emails) by clicking the “Unsubscribe” link in such emails. It may take up to 10 days to register your choice to unsubscribe. Please note that if you unsubscribe from promotional emails, you may continue to receive non-promotional emails such as notifications about your account, security, billing, and other service-related or transactional matters.
SMS Terms. Your participation in our mobile message service, including if you sign up to receive marketing SMS/text messages, is also governed by our and . Please review the Mobile Terms of Service and Mobile Privacy Policy before signing up to receive SMS/text messages. Please review the Mobile Terms of Service before signing up to receive SMS/text messages.
9. CAKE CARD TERMS
Your use of CAKE Cards is governed by these CAKE Card Terms (i.e., this Section 9) in addition to the rest of these Terms. In the event of any conflict or inconsistency between these CAKE Card Terms and the Terms in connection with CAKE Cards, these CAKE Card Terms shall prevail. All capitalized terms not defined in these CAKE Card Terms shall have the meanings given in the Terms.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE CAKE CARDS.
Eligibility. To obtain CAKE Cards, you must be a CAKE member with an active account and subscription (each as applicable). You must be an individual acting in solely a personal capacity. Commercial use of CAKE Cards, as with the rest of the Services, is prohibited. CAKE Cards may not be credited to corporations, charities, partnerships, enterprises, or anyone other than an individual acting in a personal capacity. Eligibility criteria and methods of participating may change from time to time.
Obtaining CAKE Cards. CAKE Cards are promotional codes supplied by our Brand Partners that can be redeemed in connection with purchases on our Brand Partners’ websites or stores. As a CAKE member, you may claim ten (10) CAKE Cards in any 12-month period. Each of these CAKE Cards must be from a different Brand Partner. You may only claim one CAKE Card from a given Brand Partner over the course of your membership. In other words, once you claim a CAKE Card from a particular Brand Partner, you may not claim another CAKE Card from that Brand Partner for the remainder of your CAKE membership. If you claim fewer than 10 CAKE Cards within a 12-month period, and you maintain an active subscription beyond that 12-month period, the unclaimed slots will roll over to the following 12-month period. For example, if you claim 6 CAKE Cards during the first 12 months of your membership (leaving 4 unclaimed slots), in the next 12-month period, you may claim these 4 CAKE Cards plus the 10 CAKE cards that you would normally be able to claim in a 12-month period.
Redeeming CAKE Cards. A CAKE Card may be redeemed when making an eligible purchase from the Brand Partner that supplied the CAKE Card. (Purchases cannot be made via CAKE’s Services.) Each CAKE Card may only be used once. Please see the terms and conditions associated with a specific CAKE Card for any other limitations or requirements for how the CAKE Card may be redeemed. For example, some Brand Partners may limit the types of products for which a CAKE Card may be redeemed or may prohibit you from redeeming a CAKE Card in connection with a product that is subject to another promotion.
Any federal, state and local tax liabilities resulting from obtaining CAKE Cards are the responsibility of the member.
Additional terms and opportunities to obtain and redeem CAKE Cards may apply. For example, CAKE retains the right, but has no obligation, to make available additional slots (i.e., more than 10) for some period of time or make available special CAKE Cards from specific Brand Partners, in CAKE’s sole discretion. These additional slots and cards will be subject to all of the restrictions and conditions in these Terms applicable to other slots and cards, plus any additional restrictions and conditions CAKE may specify for them.
Restrictions and Limitations on Obtaining CAKE Cards. Notwithstanding any other provision of these CAKE Card Terms, the following restrictions apply:
· CAKE Cards may not be redeemed for cash or refunds of any kind.
· CAKE Cards do not have partial or residual value.
· CAKE Cards are non-transferable and non-assignable, and any such transfer or assignment shall be void ab initio.
· You may not share CAKE Cards or the benefits of CAKE Cards with anybody. CAKE Cards and their benefits are for the exclusive use of the CAKE accountholder to which they are issued.
· Members are prohibited from reselling or otherwise distributing, disseminating, or sharing CAKE Cards.
· Once selected, a CAKE Card may not be exchanged for a different CAKE Card or returned.
CAKE Cards Expiration and Termination. YOU MAY REDEEM A GIVEN CAKE CARD FOR UP TO 12 MONTHS AFTER YOU CLAIM IT OR UNTIL THE LAST DAY YOU MAINTAIN AN ACTIVE SUBSCRIPTION (WHICHEVER OCCURS FIRST). That is, each CAKE Card expires and becomes unusable 12 months after it is claimed, even if you have not used it; but if your membership, subscription, and/or account is terminated or cancelled for any reason (including if you do not renew your membership) before the end of that 12 month period, any CAKE Cards corresponding to your membership, account, and/or subscription will automatically be forfeited prior to the end of that 12 month period. In addition, if you violate these Terms, including the CAKE Card Terms, we may, in our discretion, invalidate any CAKE Cards associated with your account, in addition to any other measures we may take. CAKE is not obligated to issue any form of refund for expired or otherwise invalidated CAKE Cards.
Changes to CAKE Cards and Termination. CAKE reserves the right to change or terminate the CAKE Cards or any part, rules, or features thereof in its sole discretion, at any time without notice, without liability, and without further obligations to members. Such changes may alter, modify, delete (in whole or in part), supplement and/or cancel any CAKE Card Terms, benefits, or policies, including but not limited to eligibility qualifications; rules for obtaining, redeeming, retaining, or forfeiting CAKE Cards; prohibited conduct; and CAKE Card expiration rules, and some changes may reduce or cancel the redemption value of any CAKE Cards obtained but not yet redeemed. In addition, our Brand Partners may, in their sole discretion, change the terms associated with at CAKE Card or terminate or invalidate a CAKE Card after a CAKE member selects such CAKE Card but before they use it. We are not responsible or liable for these or any other changes made to CAKE Cards by our Brand Partners.
By continuing to hold or use CAKE Cards following any change to these CAKE Card Terms or our Brand Partners’ practices regarding CAKE Cards, you are accepting those changes. Please review these CAKE Card Terms periodically to ensure you are aware of any changes and are familiar with the most current version.
Transfer of Rights. Our rights and obligations under these CAKE Card Terms may be assigned or transferred by us to any other related or unrelated entity at any time, and performances shall be the responsibility of that entity.
10. TERMINATION
These Terms may be terminated by CAKE at any time. Except as otherwise expressly stated in these Terms, you agree that CAKE and its Affiliated Parties shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services.
All provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation, the following (except for provisions in the following that grant you any form of permission to use the Materials or other aspects of the Services): Membership; Intellectual Property Rights; Usage Restrictions; Termination; Release; Disclaimer of Warranties and Limitation of Liability; Indemnity; Applicable Law, Jurisdiction, and Dispute Resolution; Class Action Waiver; and Miscellaneous.
11. RELEASE
To the extent permitted by applicable law, you agree not to hold CAKE or its owners, officers, directors, shareholders, agents, employees, consultants, affiliates, or subsidiaries (collectively with CAKE, “CAKE and its Affiliated Parties”) responsible or liable for the acts and omissions of users, Brand Partners, content providers, and other third parties, including any such acts or omissions that occur at events advertised or organized through—or otherwise mentioned on—the Services. Each of the Affiliated Parties will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
To the extent permitted by applicable law, you release and agree to release CAKE and its Affiliated Parties from all claims, demands, and damages (including both direct and consequential) arising out of or in any way connected with such acts and omissions.
You acknowledge that some events or interactions advertised on, organized through, or otherwise mentioned on the Services may carry inherent dangers. By participating in any of these events or interactions, you assume these risks.
12. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. CAKE PROVIDES THE SERVICES ALONG WITH CONTENT AND MATERIALS ON AN “AS IS” AND “AS AVAILABLE” BASIS. CAKE AND ITS AFFILIATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, AND IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
CAKE MAKES NO WARRANTIES WITH RESPECT TO AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR: (i) MEMBER CONTENT; (ii) BRAND PARTNERS OR ANY OTHER THIRD PARTY OR THIRD-PARTY WEBSITE, PRODUCT, OR SERVICE ACCESSIBLE OR MADE AVAILABLE TO YOU OR DESCRIBED OR REFERENCES THROUGH THE SERVICES; (iii) THE QUALITY OR CONDUCT OF ANY USER OR OTHER THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY ACTIVITIES OR INTERACTIONS WITH OTHERS THAT MAY BE FACILITATED THROUGH USE OF THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF MEMBER CONTENT. FURTHER, CAKE AND ITS AFFILIATED PARTIES MAKES NO WARRANTY THAT THE SERVICES (INCLUDING ANY INFORMATION OR OTHER MATERIAL YOU OBTAIN THROUGH THE SERVICES) OR ANY ACT OR OMISSION OF A BRAND PARTNER (SUCH AS PROVISION OF A BENEFIT IN CONNECTION WITH A CAKE CARD) WILL (I) MEET YOUR REQUIREMENTS, (II) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) BE ACCURATE OR RELIABLE, (IV) BE OF SUFFICIENT QUALITY, AND (V) BE CORRECTED OF ANY ERRORS. YOU USE MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, AND BENEFITS OBTAINED FROM CAKE CARDS, AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CAKE AND ITS AFFILIATED PARTIES ON OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL CAKE OR ITS AFFILIATED PARTIES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, OR FOR ANY CLAIM RELATED TO YOUR USE OF THE SERVICES. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, THE SOLE AND AGGREGATE MAXIMUM LIABILITY OF CAKE AND ITS AFFILIATED PARTIES FOR ANY REASON AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, PROVIDED THAT IF A PROVISION IN THE TERMS ENTITLES YOU TO A REFUND, NOTHING IN THESE TERMS SHALL BE CONSTRUED TO VOID YOUR ENTITLEMENT TO THE FULL AMOUNT OF THAT REFUND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF YOU HAVE NOT PAID CAKE ANYTHING FOR SERVICES DURING THAT TWELVE-MONTH PERIOD, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE SERVICES.
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. IN SUCH JURISDICTIONS, THE EXCLUSIONS APPLY, AND LIABILITY IS LIMITED, ONLY TO THE EXTENT PERMITTED BY LAW.
13. INDEMNITY
To the fullest extent allowed by applicable law, you agree to release, indemnify, defend, and hold harmless CAKE and its officers, directors, employees, affiliates, agents, contractors, suppliers, service providers, and licensors from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, your violation of these Terms, your violation of any rights of another (including violation of intellectual property rights), or termination of your access to the Services.
CAKE reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with CAKE in asserting any available defenses. This provision does not require you to indemnify CAKE for any unconscionable commercial practice by CAKE or for CAKE's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Services, including the purchase of any items on the Services.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that may govern your rights in the jurisdiction of your residence.
14. APPLICABLE LAW, JURISDICTION, AND DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.
This Section governs the resolution of any Disputes between you and CAKE.
These Terms shall be governed by the laws of the United States and the State of Massachusetts, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
You and CAKE agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) that may arise out of or, relate to, or be connected in any way with the CAKE Services or these Terms, including but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or the timing of any administrative or arbitrator fees (each a “Dispute”) that is not resolved under the arbitration requirements of these Terms—including any disputes related to arbitration that may be brought in a court pursuant to these terms or applicable law—must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Boston, Massachusetts, and no other court. You agree to submit to the personal jurisdiction of such courts and to accept service of process from them.
In no event can any claim or action by you related to a Dispute be instituted more than one year after the cause of action arose.
Arbitration Agreement
(A) Informal Dispute Resolution Procedure. If there is an instance when you have a concern that needs special attention, or CAKE has concerns relating to you, CAKE would prefer to work with you to reach a reasonable resolution. However, we can only do so if we know and communicate about these issues. Therefore, except as described below, for any Dispute you may have with CAKE, you agree before initiating a formal dispute resolution process to first send a written description of your concern to concierge@cakemembers.com so we have an opportunity to address it. You agree to work with CAKE in good faith to resolve the concern, including by providing CAKE with all information necessary to assess and address your claim. Likewise, except as described below, if CAKE has a Dispute with you, CAKE will provide you reasonable written notice via the email address associated with your CAKE account, if any, or will make a reasonable effort to contact you if there is no such address. We believe this informal process should facilitate resolution. However, if the parties do not satisfactorily resolve the noticed Dispute within 60 days of the date such notice is received, then you and CAKE may proceed under dispute resolution provisions below.
The 60-day notice and consultation requirement above does not apply to either party if the Dispute involves either party’s intellectual property rights (defined below). For those Disputes, either party may immediately pursue relief in the manner set forth below.
(B) Mutual Arbitration Agreement. If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided for herein) subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to from the mail address you used to create an account with CAKE.
Except as set forth below under “Special Procedures,” you and CAKE unconditionally consent and agree that any Dispute will be resolved exclusively by final and binding arbitration in accordance with Subsections 14(A)-(K) of these Terms (the “Arbitration Agreement”). (The portion of this Section 14 preceding Subsection 14(A) applies regardless of whether you have opted out of the Arbitration Agreement under Subsection 14(J).)
This Arbitration Agreement applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth herein. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
The parties understand that an arbitrator and not a judge or jury will decide the Dispute, and that rights to discovery and appeals may be limited in arbitration. The parties further understand that the costs of arbitration could exceed the costs of litigation in some instances.
You hereby acknowledge and agree that by agreeing to these Terms, which include this Arbitration Agreement, you and CAKE are each waiving the right to a trial by a jury to the maximum extent permitted by law.
Special Procedures: Notwithstanding the parties’ decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in a court of competent jurisdiction to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
(C) Class Arbitration and Collective Relief Waiver. You and CAKE acknowledge and agree that, to the maximum extent allowed by law, except as set out otherwise in Subsection (F) below, any arbitration shall be conducted in an individual capacity only and not as a class or other representative action, and the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to resolve an individual party's claim; notwithstanding this acknowledgement and agreement, you agree that any arbitration involving you may proceed on a consolidated basis, but it may do so if and only if CAKE provides its consent to consolidate in writing.
With the exception of this Subsection (C) and Subsection (F) below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, this Subsection (C) or Subsection (F) is found to be invalid, unenforceable, or illegal as applied to a Dispute, then the entirety of this Arbitration Agreement shall be null and void as to the Dispute, and neither you nor CAKE shall be required to arbitrate their Dispute.
(D) Arbitration Rules. The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at . If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.
(E) Arbitration Location and Procedure. If the amount in controversy between you and CAKE does not exceed $25,000, and neither party seeks injunctive or declaratory relief, then the arbitration will be conducted solely by submission of written materials that you and we submit to the arbitrator, unless (i) the arbitrator determines that a hearing is necessary or (ii) the parties agree otherwise. In such cases, the parties agree to remote participation in the hearing by video- or telephone-conference.
If the amount in controversy between you and CAKE exceeds $25,000, or either party seeks declaratory or injunctive relief, either party may request an arbitration hearing, and that hearing shall presumptively be held via video- or telephone-conference unless (i) the arbitrator determines there is good cause to hold an in-person hearing or (ii) the parties agree otherwise. In the event there is an in-person hearing, for all U.S. residents, the location of the hearing will be determined by mutual agreement of the parties or, if the parties cannot agree, by the arbitrator in accordance with NAM rules and applicable law. For non-U.S. residents, to the extent permissible in your country of residence, any in-person arbitration shall be held in Boston, Massachusetts (unless otherwise agreed by the parties).
The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and CAKE (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
(F) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (“Mass Filing”), the parties agree to administer the Mass Filing in sequential batches of approximately 100 demands per batch (as adjusted to accommodate any arbitrator strikes as described below). To the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands. The parties further agree: (i) to designate one arbitrator for each batch; (ii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iii) that 10% of the anticipated total number of batches for the Mass Filing may proceed simultaneously as set forth in this batching provision and Arbitration Agreement, but that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior set of batches are filed, processed, and adjudicated (for example: if 2000 demands were presented as part of a Mass Filing, there would be 20 anticipated batches, 10% of which – i.e., 2 batches – may proceed simultaneously); (iv) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by CAKE and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (v) that the staged process of batched proceedings, with each batch including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved, and (vi) to make good faith efforts to resolve each batch of claims properly designated for filing, processing, and adjudication within 180 days, failing which any of the claimants whose demands have not yet begun arbitration or CAKE may cease arbitration and file in a court of competent jurisdiction.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and notwithstanding Subsection (E) above. the arbitrator will determine whether the proceedings will occur remotely via video- or telephone-conference or the location where any in-person proceedings will be conducted. Each claimant may strike the arbitrator selected by their counsel and CAKE for the batch and where such strike is exercised, the objecting claimant’s demand will be included in any simultaneously proceeding batch, or the next following batch.
You agree to cooperate in good faith with CAKE and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless CAKE otherwise consents in writing, CAKE does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Subsection (F) and Subsection (C). If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this Subsection (F) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor CAKE shall be required to arbitrate any claim that is a part of the Mass Filing.
(G) Mediation Following First Batch in a Mass Filing. The results of the first completely adjudicated batch of demands will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with CAKE and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results of the first batch are provided to the mediator, CAKE, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either CAKE or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither CAKE nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process in Subsection (F). Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
(H) Arbitrator’s Decision. The arbitrator’s decision shall be controlled by the terms and conditions of these Terms. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of Section 12 (“Disclaimer of Warranties and Limitation of Liability”) as to the types and the amounts of damages or other relief for which a party may be held liable. No individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.
(I) Fees. Except as otherwise required by applicable law, NAM rules will govern the amount you and CAKE must pay to NAM for arbitration fees, including with respect to any fee waivers. However, if the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, you understand and agree that consistent with NAM’s rules permitting sanctions, and as set forth in this Arbitration Agreement, you may be required to reimburse CAKE for arbitration fees (including attorneys’ fees) CAKE incurred to defend your claim(s).
The parties further agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in Subsection (F)) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
You are responsible for your own attorneys’ fees, except to the extent otherwise provided by these Terms, NAM rules, and/or applicable law. CAKE won’t seek its attorneys’ fees and arbitration costs from you with respect to claims that you file, unless the arbitrator determines that your claim is frivolous, or you have engaged in conduct that is considered sanctionable under either NAM’s rules or Federal Rule of Civil Procedure 11. CAKE may seek attorneys’ fees as provided by these Terms, NAM rules, and/or applicable law for claims it pursues against you.
(J) 30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to arbitration@cakemembers.com with the subject line, “ARBITRATION OPT-OUT”. You must send this notice from the email address associated with your account (if you have one), or if this is not possible, you must promptly cooperate with us to identify your account if you have one. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the accountholder (if you hold an account) and that you are the actual sender of the notice. Your notice must include your name and address, the email address you currently use to access your CAKE account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. The notice must be sent within thirty (30) days of first becoming subject to this Arbitration Agreement. You become subject to this Arbitration Agreement at the same time you become subject to the rest of these Terms. Otherwise, you shall be bound to arbitrate disputes in accordance with this Arbitration Agreement. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, CAKE also will not be bound by it.
(K) Changes. CAKE may change this Section 14 at any time. CAKE will provide thirty (30) days’ notice of any material changes to this Section 14 by posting the update on samharris.org, sending an email to the address it has on file for your CAKE Services account, if any, or other reasonable means. Any such changes will go into effect at 11 a.m. Eastern Time 30 days after CAKE provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If CAKE changes this Section 14 after the date you first accepted this Section 14 (or accepted any subsequent changes to this Section 14), you agree that your failure to terminate the Terms as described in Section 1 by the time it takes effect will be deemed acceptance of those changes.
15. CLASS ACTION WAIVER
If you have a Dispute with CAKE that is not subject to the binding arbitration provisions in Section 14 above, then to the full extent permitted by law, you agree you may only resolve your Disputes with CAKE on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, private attorney general or other representative action. Likewise, these Terms and this class action waiver preclude you from participating in or recovering relief in any current or future class, private attorney general and/or other representative action brought against CAKE by someone else.
16. TECHNOLOGY AND RESOURCES
The use of the Program requires use of a computer system or mobile device. Use of our Program and other Services we make available online or that are capable of connecting to the Internet (collectively, “Online Services”) may require an Internet connection (such as wireless mobile data service), which you must obtain at your cost from your wireless carrier or other Internet service provider. You are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all related usage charges. You may be required to send and receive, at your cost, electronic communications related to the Online Services, including without limitation administrative messages, service announcements, diagnostic data reports, and updates, from CAKE, your mobile carrier or third-party service provider. If you do not have an unlimited data plan with the provider you use for an Internet connection, you may incur additional charges. The Online Services may cause your device to send and receive data at your cost for those and other reasons over the Internet whether or not you have taken a specific action in the Services. These and other aspects of the Services may involve activity that uses your device’s battery or other resources with or without involvement from or notice to you (including in the background while you have closed and are not actively interacting with the Services), which may shorten the life of your battery or other resources and cause you to incur unexpected energy costs. CAKE will have no liability for any of that.
You are solely responsible for obtaining any additional subscription, connectivity, or energy services or equipment necessary to access and use the Online Services, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Online Services.
We do not warrant that the Online Services will be compatible with your network provider or device. You acknowledge and agree that we may release updates to the Online Services and that you may be required to install any such update (and/or, in some cases, an update or replacement to your browser or device) in order for the Online Service to continue functioning properly. You may not export any Services except in compliance with all applicable laws.
17. MISCELLANEOUS
Section titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
Non-breach. Our failure to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond our reasonable control shall not be deemed a breach of these Terms.
Non-waiver. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
Remedies. All remedies under these Terms shall be cumulative and not exclusive.
Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions.
No Partnership. You and we acknowledge and agree that no partnership is formed and neither you nor we have the power or the authority to obligate or bind the other.
Assignment. These Terms, and any rights, licenses or obligations you receive hereunder, cannot be transferred or assigned by you, and you will not attempt to do so. Any attempted transfer or assignment in violation hereof shall be null and void. CAKE may, in its sole discretion, assign, delegate, or transfer these Terms and any rights, licenses or obligations it receives hereunder without restriction.
Entire Agreement. These Terms, the Privacy Policy and any other policies or guidelines referenced within these Terms constitute the entire agreement between you and CAKE and govern your use of the Services. These Terms supersede any prior or contemporaneous agreements, representations, warranties and understandings, written or oral, regarding these Terms or the Services. You likely will be subject to additional terms and conditions that may apply when you use Third Party Services.
18. CONTACT US
If you have any comments, questions, or concerns regarding these Terms or the Services, please contact us at concierge@cakemembers.com. We would like to promptly address any issue.
CFB, Inc., d/b/a CAKE
575 Lexington Ave
New York, NY 10022