Afribama Terms and Conditions of Use
Effective date: September 21, 2021
These Terms represent a legal agreement between you and us, govern the use of our Site and Services, and are binding for all users of our Site and Services. By using our Site and Services, you agree that: (a) your use of our Site and Services are and will be subject to these Terms; and (b) you will comply with and be bound by these Terms.
PLEASE READ CAREFULLY – THESE TERMS SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING RIGHTS TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. AMONG OTHER THINGS, SECTION 5 OF THESE TERMS PROVIDES THAT, IN THE EVENT YOU HAVE A CLAIM AGAINST OR DISPUTE WITH AFRIBAMA: YOU WILL FIRST REACH OUT TO US AND GIVE US 60 DAYS TO TRY TO WORK IT OUT; IF YOU AND WE CAN’T WORK IT OUT IN THAT TIME, SUCH DISPUTE MUST BE SETTLED BY AN ARBITRATOR; AND YOU CAN’T MAKE OR JOIN A “CLASS ACTION” CLAIM. IF YOU DO NOT WISH TO AGREE TO THESE TERMS, PLEASE DO NOT USE OUR SITE OR SERVICES.
1. SERVICES AND TRANSACTIONS.
i. Subject to your compliance with these Terms and all applicable laws, rules, and regulations, you may access and use our Site and Services, including to make purchases of our products.
ii. You hereby represent, warrant, and covenant that:
1. You have, and during such time as you use our Site or Services will have, the legal authority to enter into these Terms and to create and perform your binding legal obligations under these Terms; and
2. You will access and use our Site and Services in compliance with these Terms and with all applicable laws, rules, and regulations.
2. Age Requirements. Neither our Site nor our Services are intended for children. We do not sell products or services to children, but we do sell them (including children’s products) to adults, who can purchase them with a credit card, debit card, or other permitted payment method. If you are under 18, you may use our Site and Services only with the involvement and permission of your parent or guardian.
3. Transactions. With respect to any and all purchases made by you in connection with our Site or Services, you hereby acknowledge and agree that:
i. Orders and Transactions.
1. You will comply with all obligations with respect to each purchase made by you through our Site or Services, including all financial obligations and terms and conditions with respect to the applicable credit card account, debit card account, and/or other payment/financial account/service through which you may be charged for and/or otherwise responsible for such purchase. In addition, please note that other parties (such as your applicable credit card provider and/or third-party payment service, such as Afterpay) may enforce their terms and conditions directly with you, and we are not a party to any of those terms and conditions.
2. Notwithstanding anything to the contrary in these Terms, and without limiting any of Afribama’s rights hereunder, we may, in our sole discretion, (I) refuse or cancel any order you place with us and/or any of our Services, (II) adjust any of your orders to ensure compliance with these Terms, and/or (III) limit or cancel quantities purchased per person, per household or per order, including, in each case, orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. Each of the foregoing may apply to orders placed by or under the same customer account, the same credit card number, debit card number, or other payment/financial account number, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the email, billing address, and/or phone number provided at the time the order was made.
3. While we’re extremely honored that you may want to use Afribama products for personal and/or corporate branding purposes, we prohibit the unauthorized placement of other trademarks, logos, images and designs on our products.
ii. Codes and Programs.
1. Afribama may (x) issue promotional and coupon codes (each, a “Code”) and/or (y) operate promotions and/or programs (e.g., Bulk Gifting, Refer-a-Friend, Afribama Replacement Programs, etc.) (each, a “Program”) from time to time. We may make Codes, Programs, and other offers available to some or all users.
2. The provisions of this subsection (ii) apply to your use of Codes and Programs and will apply in addition to the terms and conditions of any specific Code or Program (including, if applicable, our Afribama Replacement Program Terms). Your use of any Code or Program offer is limited to the purpose for which your Code and/or Program offer was received, and any use beyond the prescribed limited purpose is prohibited.
3. Without limiting any of your obligations under these Terms, Codes and Programs are limited to personal use, are not for resale, and may not be shared unless if and as expressly directed by Afribama. Your use of each Code and Program will comply with all applicable laws, rules, and regulations, and you will not provide us with any information or material (such as a photograph or an email address) that you are not authorized to provide us.
4. We can revoke a Code or Program at any time for any reason. Your abuse of a Code or Program, or your failure to abide by any of these Terms or by any of the terms and conditions of any particular Code or Program, may lead to cancellation of your current Codes and Programs and/or your disqualification from participation in future Codes and Programs.
5. If we determine that there is abuse of a Code or Program offer for a specific order before that order is fulfilled, we may cancel the Code and/or Program offer and declare the order invalid with no obligation to fulfill it.
6. Codes and Programs may not be combined and must be used on a per purchase basis.
iii. Afribama Policies. Each purchase you make of a Afribama product or service through our Site or Services shall also be subject to each of Afribama Policies applicable to that purchase.
4. Afribama Text Message Marketing. If you register on our Site to receive Afribama text message marketing (“Afribama Promo Marketing Program”), you hereby acknowledge and agree that:
i. We will send marketing and promotional text messages to users who register for the Afribama Promo Marketing Program through our Site.
ii. You can cancel the Afribama Promo Marketing Program and receipt of SMS from us at any time by replying STOP (or CANCEL, UNSUBSCRIBE, END, or QUIT) to any text message from the Afribama Promo Marketing Program. After you text the message STOP (or CANCEL, UNSUBSCRIBE, END, or QUIT) to us, we will send you a text message to confirm that you have been unsubscribed. After this, you will no longer receive Afribama Promo Marketing Program text messages from us. If you want to re-register, just sign up on the Site, and we will start sending Afribama Promo Marketing Program text messages to you again.
iii. If you experience any issues with the Afribama Promo Marketing Program, you can reply “HELP” to any text message from the Afribama Promo Marketing Program for more assistance, or you can send us an email at hello@Afribama.com.
iv. Please be advised that carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any message sent to you from us and/or sent to us from you. You should expect to receive one Afribama Promo Marketing Program message per week. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
2. USE OF INFORMATION.
i. We take reasonable and appropriate steps to protect the security and integrity of our systems and the data we collect. However, you acknowledge and agree that: (A) no method of transmission over the Internet or method of electronic storage or transmission is 100% secure; and (B) we make no guarantee regarding the security of our systems or the data we collect.
ii. You may be asked to register on certain pages or services within the Sites and Services, and to select a unique username and password in order to be able to access your account and use any of the Sites and Services. As a registered user, you are responsible for maintaining the confidentiality and security of your username and password and shall be responsible for all uses of your username and password, including, any purchases facilitated through the use thereof, whether or not in fact authorized by you.
iii. You agree to immediately notify Afribama of any unauthorized use of your username and password via email to Privacy@Afribama.com.
3. Feedback and User Content.
i. You are not required to provide (A) any ideas, comments, suggestions, reviews, or other feedback (each, “Feedback”) regarding our Site or Services or (B) any other comments, questions, images (including photographs), information, or other content or materials (collectively, “User Content”). However, if you provide Feedback or User Content to us (either directly or through any of our third-party service providers), you hereby agree that it is done so voluntarily and without any obligation of confidentiality, and you will be deemed to have hereby granted us, and to have hereby represented and warranted that you have all rights necessary to grant us, a fully-paid, perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free, and worldwide license to use your name, Feedback, and User Content for any purpose, including: (A) the purposes of providing, maintaining, analyzing, developing, and improving our Site and Services; and (B) to use, reproduce, publish, translate, publicly perform and/or display (including on our Site and for purposes of our advertising and marketing), distribute, syndicate, modify, copy, and create derivative works of and from the Feedback and User Content, and any aspect or element thereof, in and/or through any form or format, media or media channel, or technology, in each case whether now known or hereafter developed.
ii. You will not provide us with any Feedback or User Content that (A) violates any applicable laws, rules, or regulations, (B) infringes or misappropriates the rights of any third party, (C) may otherwise cause legal liability or financial harm, or (D) may otherwise be offensive or inappropriate for our Site or Services. Without limiting any of our rights under these Terms (including our right to cancel Services), in appropriate circumstances, we may terminate your right to use our Site and Services if we deem that you have violated the preceding sentence.
iii. Without limiting any of our rights under these Terms (including our rights under the preceding Section 2(c)(ii)), we may withhold and/or remove any review (A) regarding our Services that contains (I) unlawful, harassing, abusive, obscene, vulgar, or sexually explicit content or (II) content that is inappropriate with respect to race, gender, sexuality, or ethnicity or (B) unrelated to Services purchased or used by you.
3. Proprietary Rights; DMCA.
1. Proprietary Rights. As between you and Afribama, Afribama owns and will retain all right, title, and interest in and to its property, including our Site and Services and all components, aspects, and elements thereof, and all intellectual property and proprietary rights in and to all of the foregoing. Without limiting the foregoing, any and all trademarks displayed within our Site and/or Services are owned by Afribama, or are the property of our affiliates, licensors, or other third parties (in which case Afribama makes no claim of ownership rights therein). We reserve all rights not expressly granted to you in these Terms, and we expressly disclaim all implied licenses, including implied licenses to trademarks, copyrights, trade secrets, and patents. However, no matter what the lawyers say, you own the products you buy – we’re not gonna show up to take any apparel away from you!
2. DMCA. If you are a copyright owner or an agent of a copyright owner, and you believe that any content on our Site infringes such copyright(s), then you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 by providing our Designated Copyright Agent with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed;
iii. Identification of the material that is claimed to be infringing and information sufficient to permit us to locate the material;
iv. Contact information of the complainant, such as an address, telephone number, and, if available, an email address;
v. A statement that the complainant has a good-faith belief that use of the material is not authorized; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be included in the notification described above, and submitted to our Designated Copyright Agent by mail and email to the following address: Afribama LLC 881 Broadway 2nd Floor New York, NY 10003 Attn: Designated Copyright Agent DMCA@Afribama.com
4. PROHIBITED CONDUCT. You agree that you will not and will not attempt to, and will not assist or permit any other person or entity to or to attempt to, misuse our Site or Services. For example, in connection with your use of our Site and/or Services, you may not, and may not assist or permit any other person or entity to:
1. Violate any applicable law, rule, or regulation;
2. Provide User Content or other information, or otherwise engage in activity, that infringes or violates any person or entity’s rights, including intellectual property rights such as copyright, moral rights, trademark, trade dress, patent, trade secret, right of privacy, or right of publicity;
3. Use our Site or Services (i) for any fraudulent purpose or (ii) for commercial or non-personal purposes;
4. Resell as new, or distribute to or through a dealer or other third party, any products purchased or otherwise acquired through our Site or Services (including in connection with any Code or Program);
5. Copy, reproduce, modify, translate, host, sublicense, lease, transfer, resell, disassemble, decompile, reverse engineer, or create derivative works from or in respect of our Site or Services or any part or aspect (including any algorithm(s), technique(s), or non-public feature(s)) of any of the foregoing;
6. Access or use, our Site or Services or any part or aspect of any of the foregoing through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms;
7. Send or provide via our Site or Services any material that is or is intended to be technically harmful (including viruses, worms, Trojan horses, logic bombs, or other malicious code or features);
8. Damage, impair, disable, tamper with, or misappropriate any aspect of our Site or Services;
9. Interfere or attempt to interfere with the proper working of any of our Site or Services any part or aspect of any of the foregoing;
10. Breach any security measure provided by, or circumvent any access or use restrictions of, our Site or Services; or
11. Otherwise use our Site or Services in any manner other than as permitted by these Terms.
5. LIABILITY AND DISPUTES.
1. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THE AFRIBAMA POLICIES (AS DEFINED ABOVE): (I) OUR SITE AND SERVICES ARE PROVIDED “AS IS”; AND (II) WE MAKE NO GUARANTEES OR WARRANTIES THAT THEY WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT THEY WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, RULE, OR REGULATION, AFRIBAMA ALSO DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO ONE OR MORE OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. WE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF OUR SITE AND/OR OUR SERVICES, OR OF ANY OTHER SERVICE, CONTENT, FEATURE OR PRODUCT OFFERED THROUGH OUR SITE AND/OR OUR SERVICES.
2. LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, RULE, OR REGULATION, REGARDLESS OF THE THEORY OF LIABILITY OR TYPE OF CLAIM (WHETHER CONTRACT, TORT, OR OTHERWISE): (I) IN NO EVENT WILL AFRIBAMA BE LIABLE FOR PERSONAL INJURY, FOR LOST PROFITS, REVENUES, OPPORTUNITY, INFORMATION, CONTENT, OR DATA, FOR INTERRUPTION OF SERVICE, OR FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER UNDER, ARISING OUT OF, OR RELATING TO THESE TERMS OR OUR SITE OR SERVICES (INCLUDING YOUR USE OF OR INABILITY TO USE OUR SITE OR SERVICES), HOWEVER CAUSED, EVEN IF AFRIBAMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EXCEPT AS EXPRESSLY PROVIDED IN THE AFRIBAMA POLICIES (AS DEFINED IN SECTION 1(C)(III) ABOVE), IN NO EVENT WILL AFRIBAMA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF LIABILITY FOR CERTAIN DAMAGES (INCLUDING FOR PERSONAL INJURY OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES), SO ONE OR MORE OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
3. Governing Law. These Terms are governed by the laws of the State of New York, without regard to its conflict of law rules. These Terms will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
4. Dispute Resolution; Arbitration.
i. If you have a claim, cause of action, or dispute, you must contact us first, so that you and we can try to resolve the matter. You agree to give us 60 days to try to resolve the dispute before requesting arbitration.
ii. In case of any disputes between us that cannot be resolved through informal discussions, you and we hereby agree that, subject to the provisions of this section, any and all claims (including tort claims), causes of action, and/or disputes under, arising out of, or relating to these Terms (each, a “Claim”) shall be settled by final and binding arbitration in accordance with the relevant rules of the American Arbitration Association (“AAA”) (as modified by, and subject to, these Terms) such rules, as so modified, “AAA Rules”); provided, however, that: Claims arising out of or relating to your violations of Afribama’s intellectual property rights, including copyright infringement, patent infringement, trademark infringement, or efforts to interfere with our Site or Services in unauthorized ways (each, an “IP Claim”) shall not be subject to such obligation for settlement by final and binding arbitration. The arbitrator’s decision and award shall be non-appealable and may be entered in, and shall be enforceable in, any court of competent jurisdiction.
iii. The arbitration shall take place in the County and State of New York; provided that you and we may participate in the arbitration by phone, by video, or via document submission to the fullest extent allowable by the arbitrator. Arbitration of any Claim(s) shall be subject to the AAA Rules, and shall be administered by the AAA. To the fullest extent permitted by applicable laws, rules, and regulations: (A) any evidentiary submission(s) made in arbitration shall be maintained as confidential in the absence of good cause for its disclosure; and (B) you and we agree not to disclose the contents of the arbitrator’s decision(s) to any third party (except as required by law, rule, or regulation, or for the purposes of enforcement or appeal of the arbitration award).
iv. Each party will bear its own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees).
v. If there is a final judicial determination that any particular Claim cannot be arbitrated in accordance with the provisions of this Section 5(d), then only that particular Claim (each, a “Non-Arbitrable Claim”) and any IP Claim(s) may be brought in court; all Claims other than Non-Arbitrable Claims and IP Claims not sought to be arbitrated remain subject to the provisions of Section 5(d)(ii) above. THE JURISDICTION AND VENUE FOR ALL NON-ARBITRABLE CLAIMS (AS DEFINED ABOVE) AND FOR ALL IP CLAIMS (AS DEFINED IN SECTION 5(d)(ii) ABOVE) NOT SOUGHT TO BE ARBITRATED SHALL BE THE STATE AND FEDERAL COURTS IN THE COUNTY AND STATE OF NEW YORK; WITH RESPECT TO NON-ARBITRABLE CLAIMS (AS DEFINED ABOVE) AND SUCH IP CLAIMS (AS DEFINED IN SECTION 5(d)(ii) ABOVE), YOU HEREBY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS AND HEREBY WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS. Nothing in this Agreement (including in this Section 5(d)) shall limit the ability of either you or us to seek equitable relief in any court of competent jurisdiction.
vi. The arbitrator may not award relief in excess of or contrary to what these Terms provide, order consolidation or arbitration on a class-wide or representative basis, or damages in excess of or contrary to what these Terms provide, or order injunctive or declaratory relief, except that the arbitrator may award on individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this Section 5(d) is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect. This arbitration clause will continue to be valid even if these Terms are no longer valid for any reason.
vii. You must contact us within one year of the date of the event or facts giving rise to a Claim, or you will have waived the right to pursue a Claim based on such event or facts. The Federal Arbitration Act governs the interpretation and enforcement of the arbitration provisions of this Agreement. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of the arbitration provisions of these Terms or the interpretation of the prohibition of class and representative actions. If any of these dispute resolution provisions is found unenforceable, that provision shall be severed, and the balance of the dispute resolution provisions shall remain in full force and effect.
5. Class Action Waiver. YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY AND YOUR RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (II) YOU MAY BRING A CLAIM(S) (AS DEFINED IN SECTION 5(d)(ii) ABOVE) AGAINST AFRIBAMA ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. FOR PURPOSE OF CLARIFICATION, YOU CANNOT MAKE “CLASS ACTION” CLAIMS. The arbitrator cannot group your Claim(s) with any other claims, causes of action, or disputes.
6. Indemnification. You hereby agree to defend, indemnify and hold harmless Afribama, its affiliates, and its and their respective officers, directors, employees, and agents from and against all third-party claims and liabilities (including attorneys’ fees and costs) arising out of or relating to your violation or alleged violation of these Terms.
3. If we fail to enforce any provision of these Terms, such failure will not constitute a waiver. If any provision of these Terms is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose, and all of the other provisions will remain in full force and effect. Unless the context otherwise requires, whenever the word “including”, “include” or “includes” is used in these Terms, it will be deemed to be followed by the words “without limitation”. To the extent permitted by applicable law, rule, or regulation, no presumption or burden of proof will arise favoring or disfavoring either you or Afribama by virtue of the authorship of these Terms. The headings contained in these Terms are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms.
4. We may change our Site and Services or suspend or cease performance of the Site and Services at any time and for any reason (or no reason). We may also remove or edit Site content at any time and for any reason (or no reason).
5. We may post links to other websites or services. We cannot control the content of other websites or services, and we are not responsible for the content of, or any of the products or services provided through, those websites or services. Our linking to such websites or services does not constitute or represent, and shall not be deemed to constitute or represent, our agreement with or endorsement of the content, products, services, or owners or providers of those websites or services.
6. Afribama will not be liable for any acts or omissions resulting from circumstances or causes beyond our reasonable control.
7. You may not assign or transfer these Terms or any of your rights or obligations under these Terms, by operation of law or otherwise, without Afribama’s prior written consent. Any attempt by you to assign or transfer these Terms or any of your rights or obligations under these Terms without such consent will be null and of no effect. These Terms and all of our rights and obligations under these Terms are freely assignable by us without your consent.
8. There are no third-party beneficiaries to these Terms. These Terms do not create an agency, partnership, or joint venture.