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Dated: August 17, 2020
Welcome to the Gertrude Hawk website, operated by Gertrude Hawk Chocolates Inc., (“Gertrude Hawk” “we,” or “our”) and located at http://www.gertrudehawk.com (the “Site”). The Site is provided as a service to our customers. The following terms and conditions (“Terms”) govern your use of this Site.
The Site is intended only for persons over the age of 18 and must not be accessed by any person who does not fit this description.
If you have any questions concerning these Terms or wish to exercise your rights as described below, please contact Gertrude Hawk Chocolates, Inc., 9 Keystone Industrial Park, Dunmore, PA 18512, firstname.lastname@example.org or 1-800-822-2032.
General Restrictions on Use
You agree to use the Site and the products or services offered through the Site by Gertrude Hawk (the “Goods”) only for purposes that are permitted by these Terms in compliance with all applicable laws, regulations, and generally accepted practices and guidelines in the relevant jurisdictions. You may only use the Site and Goods as authorized in these Terms and for no other purposes.
You agree not to use the Site:
- In any way that violates any applicable federal, state, provincial/territorial, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software);
- To impersonate or attempt to impersonate Gertrude Hawk, a Gertrude Hawk employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen or account names associated with any of the foregoing); and
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Gertrude Hawk or users of the Site or expose them to liability, or that may violate these Terms.
Without limiting the foregoing, you additionally agree not to:
- Use the Site in any manner that could disable, overburden, damage, or impair the Site or any Gertrude Hawk systems, or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site;
- Use any bot, crawler, spider, scraper or other automatic device, process or means to access the Site or any information transferred through the Site, for any purpose, including monitoring, copying or transferring any of the content on the Site;
- Use any manual process to monitor, copy or transfer any of the content on the Site or any information transferred through the Site, or for any other unauthorized purpose without our prior written consent;
- Reproduce, duplicate, copy, sell, trade, or resell any aspect of the Site or the Goods for any purpose, including commercial purposes;
- Reproduce, duplicate, copy, sell, trade, or resell any products or services bearing any trademark, service mark, trade name, logo, or other signifier owned by Gertrude Hawk in a way that is likely or intended to cause confusion about the owner or authorized user of materials;
- Use any device, software or routine that interferes with the proper working of the Site;
- Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site, including without limitation any information transferred through the Site, the server on which the Site is stored, or any server, computer or database connected to the Site;
- Attack the Site via a denial-of-service attack or a distributed denial-of-service attack; or
- Otherwise attempt to interfere with the proper working of the Site.
As between you and Gertrude Hawk, Gertrude Hawk owns all patent, copyright, trademark, trade secret, ideas, concepts, know-how, documentation or techniques or other intellectual property rights that may exist in (i) the Goods, the Site, any graphics, texts, icons, buttons, data or information we include in the Site, and any products, training materials, deliverables, and the Gertrude Hawk network or databases that may be utilized to provide the services (“Site Content”), and (ii) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by Gertrude Hawk by reference to the Goods and Gertrude Hawk’s databases and network. All Site Content is protected pursuant to copyright, trademark, patent, and other applicable laws. You shall not remove or alter any copyright notice or any other proprietary notice on the Site or on any Site Content. All names, trademarks, symbols, slogans, or logos appearing on the Site are proprietary to Gertrude Hawk or its licensors or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Content, other than the right to use the Site Content in accordance with these Terms.
You acknowledge that nothing herein will be deemed or construed to prevent Gertrude Hawk from carrying on its business activities, regardless of whether such parties are competitive with you. Gertrude Hawk will have the right to use techniques, methodologies, tools, ideas and other know-how gained during the course of providing the Goods and the Site in the furtherance of its own business and to perfect all other intellectual property rights related thereto, including patent, copyrights, trademark and trade secrets.
No right, title or interest in or to the Site or any of the Site Content is transferred to you, and all rights not expressly granted herein are reserved by Gertrude Hawk. Any use of the Site not expressly permitted by these Terms is a breach of these Terms and may violate patent, copyright, trademark and other laws.
Monitoring & Enforcement; Termination
Gertrude Hawk has the right to: (a) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; and (b) terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation or suspected violation of these Terms. Without limiting the foregoing, Gertrude Hawk has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone providing information on or through the Site. You waive and will hold harmless Gertrude Hawk and its affiliates, licensees and services providers, from any claims resulting from any action taken by Gertrude Hawk or any of the foregoing parties during, or as a result of, its investigations, and from any actions taken as a consequence of investigations by such parties or law enforcement authorities.
User Comments, Feedback, & Other Submissions
Certain features of the Site may allow you to contribute other materials and information for access, use, viewing and commentary by other users to the Site (collectively, “Comments”). By posting Comments, you represent that you have the full legal right to provide the Comments and that use of the Comments by the Site and all other persons and entities will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of Comments or other material or information to Gertrude Hawk, you grant Gertrude Hawk a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the Comments, all without any compensation to you whatsoever. For avoidance of doubt, Gertrude Hawk shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay to user any compensation for any Comments; or (3) to respond to any user Comments. If you believe that any content or postings on the Site violate your intellectual property or other rights, please follow our Complaint Procedure in Section 13 of these Terms.
Payment & Ordering
All prices displayed on the Site are quoted in U.S. dollars. Gertrude Hawk may restrict delivery to addresses within the contiguous United States. Gertrude Hawk will add shipping and handling fees and applicable sales/use tax in accordance with its then existing policies. Gertrude Hawk reserves the right without prior notice to discontinue or change specifications and prices on products and services offered on its Site without incurring any obligation to you. Goods displayed on this Site are available while supplies last. Descriptions of, or references to, products or services on this Site do not imply endorsement of that product or service, or constitute a warranty, by Gertrude Hawk. The receipt by you of an order confirmation does not constitute Gertrude Hawk 's acceptance of an order. Prior to Gertrude Hawk's acceptance of an order, verification of information may be required. Gertrude Hawk reserves the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from Gertrude Hawk. Gertrude Hawk reserves the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product or service is listed at an incorrect price due to supplier pricing information or typographical error, Gertrude Hawk shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your account charged. If your account has already been charged for the purchase and your order is canceled, Gertrude Hawk shall promptly issue a credit to your account in the amount of the incorrect price, or provide you with a refund at your election. The risk of loss and title for all products purchased by you and shipped by Gertrude Hawk pass to you upon Gertrude Hawk delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of Gertrude Hawk vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.
Disclaimers & Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GERTRUDE HAWK DOES NOT MAKE ANY PROMISE, REPRESENTATION, GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUFFICIENCY OF THE SITE AND THE GOODS TO BE PROVIDED HEREUNDER BY GERTRUDE HAWK, INCLUDING ANY WARRANTY AGAINST YOUR EQUIPMENT BECOMING DEFECTIVE OR INOPERABLE EVEN FOR REASONS THAT MAY BE RELATED TO BEARING PERFORMANCE, OR THAT THE SITE, THE GOODS, OR THE EQUIPMENT OR ANY OR ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES THEREIN WILL BE CORRECTED BY GERTRUDE HAWK.
The information presented on or through the Site, including any information provided to you which is requested through the Site (such as reports ordered via or based on information gathered via the Site), is made available for general information purposes. While Gertrude Hawk will endeavor to provide you with information that it believes to be accurate based on the information and data provided by you, Gertrude Hawk cannot and does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on the information presented to you on or through the Site, including any information provided to you which is requested or received through the Site (such as reports ordered via or based on information gathered via the Site), is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
You acknowledge and agree that any and all representations, promises, warranties or statements by Gertrude Hawk’s salesperson, representative or agent that differ in any way from the terms hereof shall be given no force or effect. If Gertrude Hawk furnishes you with any advice or assistance concerning any products, systems or work which is not required pursuant to these Terms, the furnishing of such advice or assistance shall not subject Gertrude Hawk to any liability whatsoever to you, whether in contract, in tort (including negligence), under warranty or otherwise.
YOUR USE OF THE SITE IS AT YOUR OWN RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. NEITHER GERTRUDE HAWK NOR ANY PERSON ASSOCIATED WITH GERTRUDE HAWK MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE GOODS, THE SITE, THE SITE CONTENT, OR THE INFORMATION CONTAINED THEREIN. WITHOUT LIMITING THE FOREGOING, NEITHER GERTRUDE HAWK NOR ANYONE ASSOCIATED WITH GERTRUDE HAWK REPRESENTS OR WARRANTS THAT THE SITE OR ITS CONTENTS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR GOODS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY GOODS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SITE REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
ANY PRODUCTS AND/OR GOODS DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
Limitation of Liability
IN NO EVENT WILL GERTRUDE HAWK BE LIABLE FOR DAMAGES OTHER THAN ACTUAL AND DIRECT DAMAGES PROVEN EITHER IN A COURT OF LAW OR THROUGH ARBITRATION. IN NO EVENT SHALL GERTRUDE HAWK’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE GOODS THAT ARE THE SUBJECT OF THE CLAIM. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF GERTRUDE HAWK AND ITS LICENSORS SHALL NOT EXCEED TEN US DOLLARS.
Without limiting the foregoing, you understand and acknowledge that Gertrude Hawk shall not be liable to you for:
- Any indirect, incidental, consequential, punitive or exemplary losses which may be incurred by you arising out of your use of, or inability to use, the Site or the Goods, including any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, or any loss of data suffered by you; or
- Any loss or damage which may be incurred by you as a result of: (1) any reliance placed by you on the completeness, accuracy, or existence of any information or materials made available through the Site, including any advertising; (2) any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Site or the Goods; (3) any changes that Gertrude Hawk may make to the Site or Goods, or for any permanent or temporary cessation in the provision of the Site or Goods (or any features within the Site or Goods); (4) the deletion of, corruption of, unauthorized access to, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Site or the Goods; (5) the use of any products or services obtained on or through the Site; or (6) any other matter relating to the Site, the Goods, or the Site Content.
The limitations on Gertrude Hawk’s liability to you in this Section 8 shall apply whether or not Gertrude Hawk has been advised of or should have been aware of the possibility of any such losses arising.
IF YOU ARE DISSATISFIED WITH THE SITE, THE GOODS, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
You and Gertrude Hawk agree that any disputes arising from or relating to these Terms or your use of the Site and/or the Goods, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, which cannot be resolved informally, shall be submitted to final and binding arbitration before one (1) arbitrator; provided, however, in the event that the dispute involves an allegation of liability in excess of $250,000 USD, three (3) arbitrators shall be used. Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration conducted by the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow and enforce these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in Philadelphia, Pennsylvania, unless Gertrude Hawk elects otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Pennsylvania. The arbitrator shall not be bound by rulings in prior arbitrations involving different Gertrude Hawk users, but is bound by rulings in prior arbitrations involving the same Gertrude Hawk user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
You acknowledge and agree that you and Gertrude Hawk are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Gertrude Hawk otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
In the event this Section 10 is held unenforceable, then the entirety of this Section 10 will be deemed void. Except as provided in the preceding sentence, this Section 10 will survive termination of the Terms and your use of the Site.
Notwithstanding the foregoing, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Governing Law & Jurisdiction
All matters relating to the Site, the Goods, and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to its choice or conflict of law provisions or rules.
Operation of the Site & United States Law
The Site is controlled and operated from within the United States. Without limiting anything else, Gertrude Hawk makes no representation that the Site, Site Content, Goods, products, information, or other materials available on, in, or through the Site is appropriate or available for use outside the United States, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from outside the United States do so on their own will and are responsible for compliance with applicable laws.
The Site may only be used in compliance with applicable statutes or regulations relating to the export control laws and regulations of the United States, and any amendment thereof. The Site, the Site Content, and all underlying information and technology licensed hereunder shall not be accessed, downloaded, used, possessed, or otherwise exported or re-exported to (or to a national or resident of) any country outside of the United States without first complying strictly and fully with all export controls and other applicable laws that may be imposed by the United States Government or any country or organization of nations within whose jurisdiction you use the Site, the Site Content, or any underlying information or technology.
Notice of Infringing Content
To complain about and/or to provide notice of allegedly infringing materials on the Site, please contact us using the contact information provided above.
You understand that Gertrude Hawk may make changes to these Terms from time to time. Your continued use of the Site following the posting of changes to these Terms will be considered your consent to those changes. When these changes are made, Gertrude Hawk will make a new copy of the Terms available on the Site. You agree that Gertrude Hawk is under no obligation to provide you with notices regarding changes to these Terms. You understand that it is your responsibility to check the Terms regularly for changes.
You agree that any failure or delay by Gertrude Hawk to exercise or enforce any legal right or remedy contained in or made available by these Terms (or that Gertrude Hawk has the benefit of under any applicable law) will not be taken to be a formal waiver of Gertrude Hawk’s rights and that those rights or remedies will still be available to Gertrude Hawk. If any court of law, having the jurisdiction to decide a matter arising out of these Terms, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of the Terms and the remaining provisions will continue to be valid and enforceable.
You hereby acknowledge and agree that we reserve the right at any time to modify or discontinue the whole, or any part of, the Site and the Goods, without notice, and that we will not be responsible or liable, directly or indirectly, to you or any other person or entity for any loss or damage of any kind incurred as a result of any such modifications or discontinuance.
These Terms are binding upon you, your heirs, executors, beneficiaries, successors and assigns and you may not assign these Terms to any other party without our prior written consent, which consent may be withheld in our sole and absolute discretion.