Last Updated and Effective as of: March 1, 2022
Welcome to My/Mochi’s website. Our website is located at mymochi.com (the “Website”) and is maintained by The Mochi Ice Cream Company, LLC, which is referred to below as “My/Mochi”, “us”, “our”, and “we”. My/Mochi provides the Website as a service to our customers. The Website is a copyrighted work belonging to us. Certain features of the Website may be subject to additional guidelines, terms, or rules, which will be posted on the Website in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
- Agreement. These Terms describe the terms and conditions applicable to your access of and use of the Website. We may modify these Terms at any time by posting the modified Terms. Any such modifications shall be effective immediately. You can view the most recent version of these terms at any time at https://www.mymochi.com/terms-of-use/. Each use by you shall constitute and be deemed your unconditional acceptance of the then current Terms.
- Ownership. All Content (defined below) included on the Website is and shall continue to be the property of My/Mochi or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights (“IP”). Any copying, redistribution, use or publication by you of any such Content or any part of the Website is prohibited, except as expressly permitted in these Terms. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Site.
- Intended Audience. The Webite is intended for adults only. The Website is not intended for any children under the age of 13.
- Trademarks. My/Mochi™ and other trade names are either trademarks or registered trademarks of The Mochi Ice Cream Company, LLC. Other product and company names mentioned on the Website may be trademarks of their respective owners.
- Site Use. My/Mochi grants you a limited, revocable, nonexclusive license to use the Website solely for your own personal use and not for any commercial use, republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Website, reverse engineer or break into the Website, or use materials, products or services in violation of any law. The use of the Website is at our discretion, and we may terminate your use of the Website at any time.
- Content. Certain materials may be displayed or performed on the Website (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”)). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Website, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. My/Mochi reserves the right to remove any Content from the Website at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence) or for no reason at all. My/Mochi grants you a limited, revocable, nonexclusive license to use the Website solely for your own personal use and not for any commercial use, republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Website, reverse engineer or break into the Website, or use materials, products or services in violation of any law. The use of the Website is at our discretion, and we may terminate your use of the Website at any time.
- User Submissions. My/Mochi may allow you and other users in our discretion to upload, post, or otherwise share to the Website’s Content, such as but not limited to photos, videos, audio files, feedback, comments, questions, or other information (collectively, “User Submissions”), all subject to other applicable provisions of these Terms. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using the Website, and you represent and warrant that you have all rights necessary to contribute your User Submissions in the manner in which you contribute them, including but not limited to all IP rights. You hereby grant to My/Mochi an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, and transferable license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Submissions, including all associated IP, and to grant sublicenses of the foregoing rights. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. For clarity, the foregoing license grant to My/Mochi does not affect your ownership of or right to grant additional (other than exclusive) licenses to the material in your User Submissions, unless otherwise agreed in writing. My/Mochi may retain your Content even if you are no longer using the Website but is not required to provide copies of your Content to you. My/Mochi may permanently delete or erase your Content or suspend your access to your User Submissions through the Website at any time and for any reason.
- Warranty Regarding Your User Submissions and Use of Website. You warrant, represent and agree that you will not contribute any User Submissions or otherwise use the Website in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, embarrassing, bullying, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of My/Mochi; (v) contains a virus, Trojan horse, worm, time bomb, back door, or other harmful computer code, file, or program; (vi) jeopardizes the security of any My/Mochi’s Site, software, equipment, system, other user, or other resource; (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Site, or any processes that otherwise interfere with the proper working of the Website (including by placing an unreasonable load on the Website’s infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Website or any of My/Mochi’s other services.
- Responsibility for Content. All User Submissions that you publicly post or privately transmit through the Website are your sole responsibility, and My/Mochi will not be liable for any errors or omissions in any Content. My/Mochi cannot guarantee the identity or intentions of any other users with whom you may interact in the course of using the Website or the truth, accuracy, nature, or authenticity of any of their User Submissions. You acknowledge that all User Submissions accessed by you using the Website is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you or others may interpret and use the Content or what actions you or others may take as a result of hav ing been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
- Third Party Website Links and Referrals, Products and Services. The Website may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors, and they and their products and services (“Third Party Products and Services”) are not under our control. My/Mochi provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites, Referred Vendors or Third Party Products and Services. Your use of these Third Party Sites, Referred Vendors, and Third Party Products and Services is at your own risk.
- Linking to the Website and Social Media Features. You may link to the Website’s homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
- The Website may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on the Website.
- Send e-mails or other communications with certain content, or links to certain content, on the Website.
- Cause limited portions of content on the Website to be displayed or appear to be displayed on your own or certain third-party websites.
- You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
- Link to any part of the Website other than the homepage.
- You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
- We may disable all or any social media features and any links at any time without notice in our discretion.
- The Website may provide certain social media features that enable you to:
- Release Regarding Third Parties. My/Mochi is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. My/Mochi hereby disclaims and you hereby discharge, waive and release My/Mochi and its licensors and suppliers from any past, present, and future Claims, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Compliance with Laws. You agree to comply with all applicable laws regarding your use of the Website. You further agreed that any information provided by you to us is truthful and accurate to the best of your knowledge.
- Security. My/Mochi cares about the integrity and security of your personal information. My/Mochi, however, does not represent, warrant, guaranty or covenant that no unauthorized third parties will defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Access Outside Certain Countries. Although the Website is accessible through the internet in many countries in the world, you understand and accept that the Website is not designed for use, and you agree not to provide any personally identifiable information to us, whether or not through the Website but including through contributing User Submissions, if you reside outside of the United States. Some or all of the features of the Website may not work or be appropriate for use in other countries. Without limiting the generality of the foregoing, you are not authorized to access the Website outside of the United States if you are a resident of a foreign country that observes privacy laws, rules, and regulations that are more stringent than those promulgated in the United States. If you choose to access the Website from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local Law in your country, and you agree to defend, indemnify and hold harmless My/Mochi from and against any and all claims, demands, suits, proceedings, losses, liabilities, damages, settlements, fines, penalties, costs and expenses (including attorney’s fees) (collectively, “Claims”) arising from or relating to any breach by you of this section. To the extent permissible by law, My/Mochi accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Website, My/Mochi Products or Services outside the United States. In any event, you will be bound by these Terms wherever you access or use the Sites or Services.
- Indemnification. You agree to defend, indemnify, and hold harmless My/Mochi and our affiliates, and our and their directors, officers, shareholders, partners, employees, representatives, agents, successors and assigns from and against any Claims arising out of or related to your violation of these Terms or your use of the Website.
- Disclaimer. THE INFORMATION ON THE WEBSITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. YOU AGREE THAT USE OF THE SITES IS AT YOUR SOLE RISK. MY/MOCHI DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY THAT THE WEBSITE WILL BE ACCURATE, UNINTERRUPTED, TIMELY, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MY/MOCHI OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE WEBSITE SHALL BE TO DISCONTINUE USING THE WEBSITE.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MY/MOCHI BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITE, YOUR SITE USE, OR ANY CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE AND/OR CONTENT IS TO CEASE ALL USE OF THE WEBSITE.
You may have additional rights under certain laws (including consume r laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms that directly conflict with such laws may not apply to you.
- Applicable Law. You agree that the laws of the state of California, without regard to conflict of laws provisions will govern these Terms and Condition of Use and any dispute that may arise between you and My/Mochi or its affiliates.
- ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY.
- Agreement to Arbitrate Disputes. Except as provided in Section 22(h), below, you and My/Mochi agree that any dispute, claim or controversy arising out of or relating in any way to the Website, My/Mochi’s Products and/or Services, these Terms, any My/Mochi Product Terms and Conditions and Limited Warranty, the EULA or this Arbitration Agreement, shall be determined by binding arbitration by a single arbitrator in accordance with this Section 22 (“Arbitration Agreement”). Arbitration is generally more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Where so authorized, arbitrators can award the same damages and relief that a court can award. BY AGREEING TO THESE TERMS, YOU AGREE THAT THE U.S. FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT, AND THAT YOU AND MY/MOCHI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Arbitration Agreement shall survive termination of the Terms.
- Arbitration Notice. If you elect to seek arbitration, you must first send to My/Mochi, by certified mail, a written notice of your claim (“Arbitration Notice”). The Arbitration Notice to My/Mochi must be addressed to: The Mochi Ice Cream Company, LLC, 5563 Alcoa Ave, Los Angeles, CA 90058. Except as provided below, if My/Mochi initiates arbitration, it will send a written Arbitration Notice to the email address you may have provided on the Website, if any. An Arbitration Notice, whether sent by you or by My/Mochi, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If My/Mochi and you do not reach an agreement to resolve the claim within 30 days after the Arbitration Notice is received, you or My/Mochi may commence an arbitration proceeding by thereafter filing a copy of the Demand with the American Arbitration Association (“AAA”) at the following AAA office nearest to the hearing location specified below (“Arbitration Notice Address”).
- Filing Fees. You may download or copy a form Arbitration Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after My/Mochi receives notice from the AAA that you have commenced arbitration by filing your Demand at the Arbitration Notice Address, My/Mochi will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
- American Arbitration Association. The arbitration will be governed by the Consumer Arbitration Rules (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, during normal business hours, or by writing to the Arbitration Notice Address. Unless otherwise agreed to, all arbitration proceedings shall be held in English. The arbitrator is bound by the terms of this Agreement, which shall govern over the AAA Rules and the FAA. Except as provided in Section 22(h), below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement. Unless My/Mochi and you agree otherwise, any arbitration hearings will take place in Los Angeles, California.
- Telephonic/In-Person Hearing. If the Demand is for US$10,000 or less, the arbitration will be conducted, at the option of the party that made the first Demand, solely on the basis of documents submitted to the arbitrator, or through a telephonic hearing, or through a hearing by videoconference . If the Demand exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall have the authority to grant motions dispositive of all or part of any claim, to award monetary damages, and to grant any non-monetary remedy or relief available to a single individual or entity (and not a class or as a private attorney general) under applicable law, the AAA Rules, and these Terms. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. For the avoidance of doubt, the foregoing shall not prevent a party from submitting to a court of law information necessary to enforce this Agreement or an arbitration award, or to seek injunctive or equitable relief as may be permitted by these Terms.
- Claims Only In Individual Capacity. YOU AND MY/MOCHI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and My/Mochi agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable Law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- Changes to Arbitration Agreement. If My/Mochi makes any changes to this Arbitration Agreement (other than a change to its Arbitration Notice Address or other contact information), you may reject any such change by sending us written notice within 30 days of the change to My/Mochi at its address specified in Section 22(b). By rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement, as modified by any changes you did not reject.
- Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the provisions of the Arbitration Agreement, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s IP or confidential information shall not be subject to the Arbitration Agreement (“IP Claims”). Except for IP Claims, and notwithstanding the provisions of the Arbitration Agreement, either you or My/Mochi may bring an individual action in small claims court. In all court cases, you agree to submit to the exclusive jurisdiction and venue of the state and federal courts in and for Los Angeles, California, and consent to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes.
- Copyrights and Copyright Agent. If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:
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 that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site;
- Your address, telephone number, and e-mail 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; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for Notice of claims of copyright infringement on the Website is CORPORATION SERVICE COMPANY (“CSC”), who can be reached as follows:
- By Mail:
My/Mochi Ice Cream
5563 Alcoa Ave
Los Angeles, CA 90058
- By Phone: (323) 587-5504
- By E-mail: email@example.com
- Severability. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid under applicable Law in such jurisdiction, such provision or part thereof shall be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect, and will be deemed to not form part of the contract between us but only in such jurisdiction. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect in all other jurisdictions.
- Waiver. The failure of My/Mochi to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. Any waiver of these Terms by My/Mochi must be in writing and signed by an authorized representative of My/Mochi.
- Termination. My/Mochi may terminate these Terms at any time, with or without notice, for any reason.
- Relationship of the Parties. Nothing contained in these Terms or your use of the Website shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
- Electronic Communications. You are communicating with My/Mochi electronically when you use the Website or send an email to My/Mochi. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Force Majeure. My/Mochi will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event or circumstance beyond our reasonable control, including, without limitation, acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riots, actual or threatened acts of terrorism, war, fire, explosion, storm, flood, earthquake or other natural disaster, loss of power or connectivity, interruption or delay in transportation or travel, equipment failure, accident, epidemic or other widespread disease, new government restrictions or regulations, shelter-in-place orders, quarantines, government shutdown, malfeasance or breach by third-party suppliers.
- Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No part of these Term shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
- Copyrights. These Terms, and all content (whether or not a work made for hire) for which My/Mochi owns the copyright, including on the Website or as provided through any My/Mochi’s Product or Service, is protected by applicable U.S. and foreign law. All rights reserved. Any unauthorized use may be subject to prosecution.
- Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Website, Products and Services are the property of My/Mochi or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of My/Mochi or such respective holders. My/Mochi reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
- Contact Information.
My/Mochi Ice Cream
5563 Alcoa Ave
Los Angeles, CA 90058
- Email: firstname.lastname@example.org
- Phone: (323) 587-5504