Terms of Service
Last updated: May 12, 2020
- Site Intended for Adult Use.
- Use of our Site and the Services.
- Electronic Communications.
- Links to Third-Party Sites.
- Posting or Uploading Information.
- Unauthorized Activities.
- Proprietary Rights.
- Intellectual Property Infringement.
BY USING A SITE, MOBILE APPLICATION OR ANY SERVICE, YOU ARE AGREEING TO ALL OF THESE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE ANY SITE, ANY MOBILE APPLICATIONS, ANY SERVICES MADE AVAILABLE THROUGH THE SITES OR ANY INFORMATION CONTAINED ON THE SITES.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH BANANA BROS.. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
2. Site Intended for Adult Use.
By using a Site or Mobile Application, you represent, acknowledge and agree that you are at least 21 years of age. Our Sites and Mobile Applications are not targeted toward, nor intended for use by, anyone under the age of 21. If you are not at least 21 years old, you may not use our Sites or Mobile Applications at any time or in any manner or submit any information to Banana Bros., the Sites or the Mobile Applications.
Banana Bros. provides content through the Sites and Mobile Applications that is copyrighted and/or trademarked work of Banana Bros., Banana Bros.'s third-party licensors and suppliers, or other users of the Sites and/or Mobile Applications (collectively, the "Materials"). Materials may include logos, graphics, video, images, software and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, Banana Bros. hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use the Sites solely for your personal use. Except for the foregoing license (and the license set forth in the section below entitled Mobile Applications), you have no other rights in the Sites or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any Site, Mobile Application or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
3. Use of our Site and the Services.
You need not register with Banana Bros. to simply visit and view the Sites and use many of the Services available on the Sites or Mobile Applications. However, Banana Bros. may from time to time require you to register for an account with Banana Bros. in order to access certain password-restricted areas of a Site and to use certain Services and Materials offered on and through a Site or Mobile Application.
If account registration is offered and you desire to register for an account with Banana Bros., you must submit information via the Mobile Application or through the account registration page on the Site (as applicable), which may include your e-mail address, name and mailing address. You may also have the ability to provide additional optional information about yourself, which is not required to register for the account, but may be helpful to Banana Bros. in providing you with a more customized experience when using the Site, the Mobile Application or the Services they provide. Once you have submitted your account registration information, Banana Bros. shall have the right to approve or reject the requested account, in Banana Bros.'s discretion. If your account is approved, you will be permitted to log in to the applicable Site(s) or Service(s) using the password you select.
You may also be provided with the ability to register for an account on the Site or Mobile Application using your existing account and log-in credentials through certain Third-Party Sites (as defined below) such as Facebook.
You are responsible for maintaining the confidentiality of your Banana Bros. password and any Third-Party Site password used to access our Sites, Mobile Applications and/or Services (collectively, "Passwords"), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords, or do anything else that might jeopardize the security of your Passwords. You agree to notify Banana Bros. if any of your Passwords are lost or stolen, if you are aware of any unauthorized use of your Passwords or if you know of any other breach of security in relation to any Site or Mobile Application. All the information that you provide when registering for an account and otherwise through the Sites or Mobile Applications must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
If applicable, you agree to pay all fees or charges associated with your use of the Sites or purchases made on the Sites pursuant to any Banana Bros. billing terms in effect as shown on the applicable product or payment pages. If you do not pay on time or if Banana Bros. cannot charge your credit card or other applicable payment method for any reason, Banana Bros. reserves the right to either suspend or terminate your access to any or all of the Sites and/or your account, and terminate these Terms. You are expressly agreeing that Banana Bros. is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Sites and that fees will be billed to your credit card or other Banana Bros.-approved payment method. If the product or service you have purchased involves a subscription or recurring payments, you agree that Banana Bros. may charge your credit card or other Banana Bros.-approved payment method thereafter at regular intervals for the term of the recurring payments. Except as otherwise set forth in these Terms or separate product purchase terms on a Site, all fees and charges are non-refundable. If you have a balance due on any account, you agree that Banana Bros. may charge such unpaid fees to your credit card or other payment method, or otherwise bill you for such unpaid fees.
All prices displayed on the Sites are quoted in U.S. dollars. Shipping and handling fees and applicable sales/use tax will be added by Banana Bros. as necessary. Banana Bros. reserves the right to make changes to pricing and specifications without prior notice and without incurring any obligations to you, and to restrict delivery to addresses within the United States. Banana Bros. reserves the right to limit the number of items ordered and to refuse services to any customer without prior notification. In the event that an item lists an incorrect price, either due to typographical or other error, Banana Bros. shall have the right to refuse or cancel any order placed for the incorrect price, regardless of whether the order is being or has been processed. If payment has already been made or if a credit card has already been charged for the purchase and the order is cancelled, Banana Bros. shall promptly credit the credit card account in the amount of the incorrect price.
5. Electronic Communications.
By using a Site, a Mobile Application and/or the Services, you consent to receiving electronic communications from Banana Bros.. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site, Mobile Application and/or Services provided on or through the Site and/or Mobile Applications. These electronic communications are part of your relationship with Banana Bros.. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
7. Links to Third-Party Sites.
Our Sites or Mobile Applications may be linked to other websites or applications that are not Banana Bros. sites or applications, including, without limitation, social networking, blogging and similar websites through which you are able to log into a Site or Mobile Application using your existing account and log-in credentials for such third-party sites, websites or applications from which you may purchase Banana Bros. products, and websites or applications with content that you may find interesting (collectively, "Third-Party Sites"). Certain areas of a Site or Mobile Application may allow you to interact and/or conduct transactions with such Third-Party Sites and/or allow you to configure your privacy settings in your Third-Party Site account to permit your activities on our Site or Mobile Application to be shared with your contacts in your Third-Party Site account. In certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on our Site or Mobile Application. In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions of use than are found on our Sites or Mobile Applications, and you further acknowledge and agree that, in such cases, your use of such Third-Party Sites is governed by such third party privacy policies and terms and conditions of use. Banana Bros. provides links to Third-Party Sites to you as a convenience, and we do not verify, make any representations about, or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT BANANA BROS. WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES, FOR YOUR DEALINGS OR COMMUNICATIONS WITH ANY THIRD PARTIES, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, PRODUCTS, SERVICES OR BUSINESS PRACTICES OF ANY THIRD PARTY. Unless specifically stated on our Site or Mobile Application, we do not endorse any such Third-Party Sites, the products, services, or materials found there, or any results that may be obtained from using them.
8. Posting or Uploading Information.
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post, create or otherwise generate or make available on or through any of our Sites, Mobile Applications or Services (each a "Submission"). You may not upload, post or otherwise generate or make available to us any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions you provide.
When you provide Submissions you agree that those Submissions shall not be in violation of the "Unauthorized Activities" section immediately below. Those prohibitions do not require Banana Bros. to monitor, police or remove any Submissions or other information submitted by you or any other user.
9. Unauthorized Activities.
When using the Sites and/or Mobile Applications, you agree to abide by common standards of decency and act in accordance with the law. By way of example and not limitation, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site or Mobile Application.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on a Site or via a Mobile Application.
- Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.
This list of prohibitions provides examples and is not complete or exclusive. Banana Bros. reserves the right to (a) terminate access to your account and/or your ability to post to the Sites (or use the Mobile Applications or Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that Banana Bros. determines is inappropriate or disruptive to a Site, a Mobile Application or to any other user of the Site, Mobile Application and/or Services. Banana Bros. may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Banana Bros.'s discretion, Banana Bros. will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Sites, the Mobile Applications or the Internet.
Unauthorized use of any Materials contained on the Sites or Mobile Applications may violate certain laws and regulations.
You agree to indemnify and hold Banana Bros. and any other Licensee and their respective officers, directors, employees and agents harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) Banana Bros. or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding any claim or demand relating to or arising out of your use of any Site or Mobile Application (including any Service available through such Site or Mobile Application), the use of a Site or Mobile Application by any person using your user name and/or Password (including without limitation, your participation in the posting areas), your Submissions or your violation or misappropriation of any applicable law, regulation, or the copyrights, trademark rights or other rights of any third party.
10. Proprietary Rights.
The trademarks, logos, and service marks displayed on the Sites and/or Mobile Applications (collectively, the "Trademarks") are and remain the registered and/or common law marks of Banana Bros., our affiliates, our licensors or our partners in the United States and other countries, and are protected by United States and international trademark laws.
Unless otherwise specified in these Terms, all information and screens appearing on the Sites or Mobile Applications, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Banana Bros., our affiliates, our licensors or our partners. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any Trademark or copyrighted material is strictly prohibited without the express written consent of the owner.
Please see our Patents/IP page for more information about our intellectual property, including a list of patents for purposes of the virtual patent marking provisions of the America Invents Act, 35 U.S.C. § 287(a)
11. Intellectual Property Infringement.
Submitting an Infringement Notice.
Banana Bros. respects the intellectual property rights of others, and we ask you to do the same. Banana Bros. may, in appropriate circumstances and at our discretion, terminate service and/or access to and use of the Sites and/or Mobile Applications for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on a Site, please provide Banana Bros.'s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Banana Bros. to locate the material.
- Information reasonably sufficient to permit Banana Bros. to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Banana Bros.'s agent for notice of claims of copyright or trademark infringement on the Sites can be reached as follows:
5822 Uplander Way
Culver City, CA 90230
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a Digital Millennium Copyright Act ("DMCA") Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Banana Bros.'s designated agent that includes all of the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Banana Bros. may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers.
Banana Bros. reserves the right, in its sole discretion, to terminate the account or access of any user of our Sites, Mobile Applications and/or Services who is the subject of repeated DMCA or other infringement notifications.
12. Disclaimer of Medical Liability.
YOU UNDERSTAND AND AGREE THAT THE SITES, MOBILE APPLICATIONS, SERVICES AND ANY MATERIALS DO NOT PROVIDE MEDICAL ADVICE. RELIANCE ON ANY INFORMATION PROVIDED IS SOLELY AT YOUR OWN RISK. THESE SITES, MOBILE APPLICATIONS, SERVICES AND ANY MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY. THE INFORMATION PROVIDED IS NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF CONTENT PRESENTED ON THE SITES OR MOBILE APPLICATIONS. IF YOU HAVE A MEDICAL EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. AS SET FORTH MORE FULLY BELOW, BANANA BROS. WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING FROM THESE THE SITES, MOBILE APPLICATIONS, SERVICES AND ANY MATERIALS.
13. Disclaimer of Warranties.
Your use of the Sites, Mobile Applications and Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by Banana Bros., and they may include inaccuracies or typographical or other errors. Banana Bros. does not warrant the accuracy or timeliness of the Materials contained on the Sites and/or Mobile Applications. Banana Bros. has no liability for any errors or omissions in the Materials, whether provided by Banana Bros., our licensors or suppliers or other users.
BANANA BROS., FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE MOBILE APPLICATIONS, THE SERVICES, OR ANY MATERIALS, OR RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED OR PRESENTED ON THE SITES OR MOBILE APPLICATIONS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, THE MOBILE APPLICATIONS, THE SERVICES, THE MATERIALS, AND ANY INFORMATION CONTAINED OR PRESENTED ON THE SITES AND/OR MOBILE APPLICATIONS IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BANANA BROS. DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
14. Limitation of Liability.
BANANA BROS. SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SITES, MOBILE APPLICATIONS OR ANY SERVICES, OR FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SITES. IN NO EVENT SHALL BANANA BROS. BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF BANANA BROS. KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
15. Local Laws; Export Control.
Banana Bros. controls and operates the Sites and/or Mobile Applications from its offices in the United States of America, and the Services, Materials and Mobile Applications may not be appropriate or available for use in other locations. If you use a Site, Mobile Application and/or Services outside the United States of America, you are solely responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Banana Bros., whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to a Site, a Mobile Application, any Services, or any Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Banana Bros. is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Banana Bros. is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution. To the extent the foregoing assignment of rights, title and interest in and to your Feedback is prohibited by applicable law, you hereby grant Banana Bros. and any other Licensee a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to use, reproduce, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute your Feedback, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, for any purpose, and to develop, manufacture, have manufactured, license, market, and sell, directly or indirectly, products and services using such Feedback.
17. Dispute Resolution and Arbitration; Class Action Waiver.
Please read this carefully. It affects your rights.
Important: Please give us a chance to make things right. Most customer concerns can be resolved quickly and to a customer's satisfaction by contacting us at email@example.com.
This "Dispute Resolution and Arbitration; Class Action Waiver" provision (this "Provision") facilitates the prompt and efficient resolution of any disputes that may arise between you and Banana Bros.. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes (as defined below) between you and Banana Bros. shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys' fees).
For the purpose of this Provision, "Banana Bros." means Banana Bros., LLC, its subsidiaries and affiliates, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and Banana Bros. regarding any aspect of your relationship with Banana Bros., whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Banana Bros.'s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
With respect to any Dispute, you will be deemed to have consented to this Provision upon the first occurrence of any of the following, in connection with and as relevant to your claim: (1) your access or other use of the bananabros.com website, any other Site. any Mobile Application, or any Services; (2) your purchase of any Banana Bros. product or accessory; (3) your receipt of your purchase of any Banana Bros. product or accessory; or (4) any act or omission, by Banana Bros., giving rise to the Dispute.
OTHER BANANA BROS. WEBSITES (EACH, A "SITE") AND ANY BANANA BROS. MOBILE APPLICATIONS (EACH, A "MOBILE APPLICATION") WHERE THESE TERMS ARE POSTED AND (III) THE SERVICES ASSOCIATED WITH THE SITES OR MOBILE APPLICATIONS ("SERVICES").
YOU AND BANANA BROS. EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Banana Bros. an opportunity to resolve the Dispute. You must commence this process by writing us at Banana Bros., 5822 Uplander Way, Culver City, CA 90230, Attention: Legal. When you contact us, you must provide (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you are seeking. If Banana Bros. does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Banana Bros. may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENTED TO THIS AGREEMENT, AS DESCRIBED IN THE INTRODUCTION, ABOVE (the "Opt-Out Deadline"). You may opt out of this Provision by mailing written notification to Banana Bros., 5822 Uplander Way, Culver City, CA 90230, Attention: Legal. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Banana Bros. through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Banana Bros.. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either you or Banana Bros. may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site, the distribution of Mobile Applications, and these Terms concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing, but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Banana Bros. may initiate arbitration in either the County of Los Angeles, State of California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Banana Bros. may transfer the arbitration to the County of Los Angeles, State of California, in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – Banana Bros. will pay all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Banana Bros. specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site or a Mobile Application can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and Banana Bros. are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Banana Bros. might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with Banana Bros. or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Banana Bros. makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Banana Bros. to adhere to the language in this Provision if a dispute between us arises.
18. Mobile Application.
Banana Bros. may make Mobile Applications available for use with mobile devices. To use a Mobile Application you must have a compatible mobile device. Banana Bros. does not warrant that any Mobile Application made available to you will be compatible with your mobile device. Banana Bros. hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third party or use the Mobile Application to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Banana Bros. may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Banana Bros. and its third-party licensors or suppliers retain all right, title, and interest in and to any Mobile Application (and any copy of the Mobile Application) Banana Bros. may make available to you. Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that Banana Bros. may provide to you designed for use on an Apple iOS-powered mobile device (an "iOS App"):
- You acknowledge that these Terms are between you and Banana Bros. only, and not with Apple, Inc. ("Apple").
- Your use of the iOS App must comply with Apple's then-current App Store Terms of Service.
- Banana Bros., and not Apple, is solely responsible for the iOS App and the Services and content available through the use thereof. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
- You agree that Banana Bros., and not Apple, is responsible for addressing any claims by you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that Banana Bros., and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
The parties agree that Apple and Apple's subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that Banana Bros. may provide to you designed for use on an Android-powered mobile device (an "Android App"):
- You acknowledge that these Terms are between you and Banana Bros. only, and not with Google, Inc. ("Google").
- Your use of the Android App must comply with Google's then-current Google Play Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. Banana Bros., and not Google, is solely responsible for the Android App and the Services and content available through the use thereof. Google has no obligation or liability to you with respect to the Android App or these Terms.
Banana Bros. prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Banana Bros., may result in immediate termination of your access to the Sites or ability to use our Mobile Applications without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms, the Sites, the Mobile Applications or the Services will be heard in the courts located in the County of Los Angeles, State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Banana Bros.'s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Banana Bros. and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Banana Bros. about the Sites, the Mobile Applications, and/or any Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
20. California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Sites, Mobile Applications and Services are provided by Banana Bros., LLC, 5822 Uplander Way, Culver City, CA 90230. If you have a question or complaint regarding the Sites, Mobile Applications or Services, please contact us at firstname.lastname@example.org. You may also contact us by writing Banana Bros., 5822 Uplander Way, Culver City, CA 90230, Attention: Legal. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
21. Contact Us.
If you have any questions about these Terms, you can reach us by email at email@example.com or by mail at Banana Bros., 5822 Uplander Way, Culver City, CA 90230, Attention: Legal.
For questions products, the status of an order, or a general questions about Banana Bros., please visit our general contact page.
22. Changes to Our Terms.
These Terms supersede any previous Terms.
Banana Bros. may make changes to the content and Services offered on the Sites or via the Mobile Applications at any time. Banana Bros. can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on the applicable Site(s). By using any Site or Mobile Application after Banana Bros. has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Sites and Mobile Applications.