Terms & Conditions of Use (USA)

Last Updated: 05/20/2024

Welcome to the Awake Chocolate website, which is owned and operated by Awake Corporation. These Site Terms and Conditions of Use (these “Site Terms”) govern your access to and use of the websites that link to these Site Terms, including our webstore located at www.awakechocolate.com (which we refer to in these Site Terms as the “site”, which includes all content, functionality, and services offered on or through the site). These Site Terms apply to all United States visitors to and users of the site, including browsers, registered users, and customers.

References to “Awake,” “us,” “we,” or “our” in these Site Terms refer to Awake Corporation and our affiliates, and references to “you” and “your” refer to you as a visitor to and user of the site. The term “content” refers to any information presented on or provided through the site, and includes text, data, graphics, images, photographs, video, audio, and any other presentation of information.

1. ACCEPTANCE OF TERMS AND ADDITIONAL SITE POLICIES

These Site Terms contain obligations you are expected to comply with and affect your legal rights. YOU SHOULD CAREFULLY READ THESE SITE TERMS. By using the site in any way, including browsing, creating an account, placing an order, and/or using any interactive site tools, you are creating a binding contract between you and us, and you acknowledge that you have read, understood, and agreed to be bound by these Site Terms.

In addition to these Site Terms, your use of the site is also subject to any other policies and legal notices that may be posted on or made accessible to you through your use of the site (“Additional Site Policies”). These Additional Site Policies include:

Our Privacy Notice;
Our Sale Terms; and
Any additional terms we may post from time to time relating to the site or any products or services made available on or through the site.

All Additional Site Terms are incorporated into these Site Terms. If you do not agree to these Site Terms or to any Additional Site Policies, you should not access or otherwise use the site.

2. CHANGES TO THE SITE AND THESE TERMS

We may make changes to the site at any time and for any reason, including to reflect (a) changes to the products available for sale on or through the site (including to discontinue products and/or modify pricing), (b) applicable technologies, (c) our users’ needs, and (d) our business priorities. We have no obligation to provide you notice of any such changes.

We may make changes to all or any portion of these Site Terms and any Additional Site Policies at any time. Any modifications will be effective when the changes are posted to the site. It is your responsibility to check the site regularly for updates. You will be able to determine when these Site Terms were last updated by referring to the “Last Updated” legend at the top, and our Additional Site Policies include similar legends. By using the site after we post any changes to these Site Terms or any other Additional Site Policies, you agree to accept those changes, whether or not you have taken the time to review them.

We may suspend or withdraw access to, or restrict the availability of, all or a portion of the site, with no liability to you, for any reason, including business and operational reasons, as well as to investigate any misuse of the site or violation of these Site Terms or any Additional Site Policies.

Our site may be unavailable from time to time due to mechanical, telecommunication, software, hardware, or third-party failures. We cannot predict or control when any downtime may occur, and cannot control the duration of such downtime.

3. CREATING AN ACCOUNT AND PROVIDING PURCHASE INFORMATION

When you use certain features of the site, you may be asked or required to create an account. Creating an account will require you to create a unique user identifier (your “User ID”) and a password. User IDs may not violate any third party rights, and may not be offensive. We reserve the right in our sole discretion to reject the use of any User ID or password, for any reason.

Your User ID and password are unique to you, and you agree not to disclose or share your User ID or password to or with any third party. You further agree that you will be solely responsible for the maintenance and security of your User ID and password. You also agree that you will be solely responsible for any activities conducted on or through the site, including any orders placed, in connection with your User ID, regardless of whether or not you are the individual who undertakes such activities. This includes any unauthorized access and/or use of your account or your computer.

If you become aware of any loss, theft or unauthorized use of your User ID or password, please notify us immediately by contacting us at info@awakechocolate.com.

4. MAKING PURCHASES ON THE SITE

If you make purchases through the site, those purchases are subject to our Sale Terms [insert link].

5. INTELLECTUAL PROPERTY

The site is owned by us, and you agree that, as between you and us, we own or otherwise have all proprietary rights to all content included on the site. We (or our licensors) also own or otherwise have all proprietary rights to the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with the content and the site, which are protected by applicable intellectual and proprietary rights and laws.

You may not, and may not allow any third party to, reproduce, publish, distribute, display, modify, create derivative work from, or exploit in any way, in whole or in part, any site content without our prior express written consent. You are permitted to use view, print, or download any content from the site solely for your own personal, non-commercial use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You have a limited, non-exclusive and non-transferable license solely to view, print, and download content from the site solely for such limited permitted use. Any unauthorized use of the site and the content immediately and automatically without further action terminates this license. Notwithstanding the foregoing, you may not download, republish, retransmit, reproduce, or use in any other way any image on the site as a stand-alone file (i.e. separate from the article, text, caption, or other graphics used with the image in context on the site).

“AWAKE,” our logos, our product names, and all related names, logos, product and service names, designs, and slogans are trademarks of us or our affiliates. You may not use, and may not allow any third party to use, such marks without our prior written permission. Further, you may not use any metatags, meta elements, "hidden text" or other equivalents using such names or any other colorable equivalent without our prior written authorization.

You may not remove, modify, obscure, or otherwise attempt to hide or mask any copyright, trademark or other proprietary rights notice that appears on any portion of the site.

6. USER REQUIREMENTS

When you create an account, subscribe to our newsletter, or make a purchase (whether as a guest or a registered account holder), and each time you log in to an account tied to your User ID, you represent, warrant, and agree that: (a) you are at least 18 years old, (b) you are using your actual identity, (c) you have provided only true, accurate, current and complete information to us, and (d) you will maintain and promptly update the information that you provide to keep it true, accurate, current, and complete.

When you use certain features of the site, you may be asked or required to provide certain information. By using the site, you agree to our collection, use, and disclosure of the information you provide to us (which may include technical information about your device and related software, hardware, and peripherals), all in accordance with our Privacy Notice [insert link]. In addition, we may allow visitors to the site to post reviews, comments, and other content to the site or submit suggestions, ideas, comments, questions, feedback, or other information to us (referred to as “User Submissions”).

You agree to use the site only for its intended purpose, as described on the site and in these Site Terms. Without limiting that general requirement, you agree that you will not, directly or indirectly:

Use the site in any way that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity (including Awake);
Create a false identity, or otherwise attempt to mislead us or any other person as to the identity or origin of any communication;
Provide any User Submission to the site that infringes any third party’s intellectual property or other proprietary right;
Access or attempt to access without proper authorization any part of our site, any equipment or network on which our site is stored, any software or other technology used in our provision of the site, or any equipment, network, software, or other technology owned or used by us or any third party; or
Otherwise use the site to engage in any activity that we deem in our sole discretion to be in conflict with the spirit and intent of the site and these Site Terms.

In addition, you understand and agree that the site and all content are to be used only for your personal, non-commercial use. Without limiting that general statement, you agree that you will not:

Accumulate or index, directly or indirectly, through automated means or otherwise, any content or portion of the site for any purpose whatsoever;
Use the site to compile mailing lists or other lists for commercial purposes;

Use the site to establish independent data files or otherwise amass statistical information;
Engage in any “screen scraping,” “database scraping,” or similar activities to obtain any content;
Use the site to transmit or facilitate the sending of any unsolicited or unauthorized advertising or promotional material, or any other form of similar solicitation (e.g., spam); or
Publish or distribute in any medium any information contained on the site, and/or summaries or subsets thereof, to any person or entity.

Further, you understand that the site strives to protect its security and integrity and those of its users. You therefore agree that you will not (and will not attempt to):

Obtain or ascertain any other user's personal information by any means whatsoever;
Circumvent our security systems;
Gain access to the site in a fraudulent manner; or
Upload, submit, or transmit any content containing viruses or any computer code, corrupt files or programs engineered or intended to disrupt or destroy the functionality of any software, hardware, telecommunications, networks, servers, or other equipment.

If you make any User Submission, by doing so you grant to us a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Submission throughout the world in any media. You represent and warrant to us that you own or otherwise have the full and unrestricted right to use and grant such license in the User Submission that you provide and that the User Submission is accurate and does not violate these Site Terms or any third party’s rights.

We reserve all rights to monitor the site for any reason. However, we assume no responsibility or liability arising from any use of the site. We are under no obligation to enforce any of these Site Terms on your or any other person’s behalf against another user.

7. SOCIAL MEDIA ACCOUNTS AND SHARING SITE CONTENT; LINKS TO OTHER WEBSITES

In addition to the site, we also like to interact with you on third party sites where we post content or invite your feedback, such as through our accounts on social media sites such as Facebook, X (Twitter), YouTube, and Instagram (“social media sites”). However, we do not control the social media sites, and these Site Terms do not apply to the social media sites. It is your responsibility to review the terms of use and other policies posted on the social media sites.

We may also from time to time include features on the site that allow you to share information from the site, or provide comments and feedback regarding the site, on various social media sites. These interactive features may link to, or require you to log into, one of your social media accounts, or may otherwise access or use your social media account information. This may result in our obtaining information about you (such as your social media account profile picture or other account information) from your social media service provider, and vice versa. Our collection and use of information will be subject to our Privacy Notice. However, we are not in control of your social media account or how the social media site providers use your information, which is governed by the setting and privacy policies of the social media sites. Again, you should review the terms of use and other policies posted on the social media sites.

Also, we and others may provide links to web pages, websites, and various resources or locations on the web (including the social media sites, and collectively referred to as “third party sites”). Links to third party sites are provided for the convenience of users of the site. We do not operate, control, endorse or guarantee any third party sites. When you access any third party sites through a link posted on the site, please carefully read the terms and conditions of use, privacy notice and other policies of such third party site. These Site Terms and our other Additional Site Policies do not apply to any third party site.

8. COMMUNICATIONS

We use email as a vital and primary communication channel with you. By using the site, if you provide us with an email address, such as when using the “Contact Us” or any similar features of the site, creating an account, making a purchase, or opting into our newsletter, you grant us permission to communicate with you by email for any purposes related to your use of the site, including for any disclosures, system messages and, subject to our obligations under applicable law, other marketing purposes. We will use our best efforts to honor any request to opt out of marketing messages, but under no circumstances will we have any liability for sending you any email.

You agree that any notice, agreement, disclosure or other communication that we send you by email will satisfy any legal communication requirements, including that such communication be in writing.

9. TERRITORY

The site is provided for our United States (US) market. We make no representation that the site is appropriate or available for use in other locations. Access to the site from territories where it or its content is illegal is prohibited. Those who choose to access the site from other locations do so on their own initiative, and should be aware that some products, features, and services may not be available in your country due to market, technical, or legal constraints.

10. INDEMNITY

You agree to indemnify and hold us, and our directors, officers, affiliates, volunteers, agents, employees, licensors and partners harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of any content you submit, post to, or transmit through the site, your use of the site, your violation of these Site Terms or any Additional Site Terms, or your violation of any rights of any third party.

11. DISCLAIMER

YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT:

WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION, AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON.

IN THE EVENT OF AN ERROR ON THE SITE, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER, OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT THE ERROR AND REVISE YOUR ORDER ACCORDINGLY, OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. THE SITE MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.

EXCEPT FOR ANY WRITTEN WARRANTY INCLUDED WITH THE PRODUCTS WE SELL, THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “WHERE AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

WE DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE, INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THE SITE, THE SERVERS THAT MAKE THE SITE AVAILABLE, OR EMAIL OR OTHER CORRESPONDENCE SENT THROUGH THE SITE, ARE OR WILL BE FREE OF VIRUSES OR ANYTHING ELSE HARMFUL. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, RELIABILITY OR OTHERWISE.

CERTAIN OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW A PARTICULAR LIMITATION OR EXCLUSION.

12. LIMITATIONS ON LIABILITY

WE WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY CAUSED BY YOUR USE OF THE SITE AND ITS CONTENT, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE. WE WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) THAT RESULT FROM THE USE OF, THE INABILITY TO USE, OR RELIANCE UPON, THE SITE AND THE CONTENT OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE SITE, EVEN IF THERE IS NEGLIGENCE BY US OR OUR AUTHORIZED REPRESENTATIVE, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW A PARTICULAR LIMITATION OR EXCLUSION OF LIABILITY FOR SUCH DAMAGES. THAT SAID, OUR TOTAL LIABILITY TO YOU FOR LOSSES, DAMAGES AND CAUSES OF ACTION WILL NOT BE GREATER THAN THE AMOUNT YOU PAID TO US, IF ANY, FOR THE APPLICABLE PRODUCTS OR TO ACCESS OR USE THE SITE.

13. GOVERNING LAW, CHOICE OF FORUM, JURY AND CLASS ACTION WAIVER

Please read the following section carefully, because it limits the manner in which you can seek relief from us.

The laws of the State of Delaware (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to these Site Terms, including, without limitation, their validity, interpretation, construction, performance, and enforcement. All legal proceedings arising out of or in connection with these Site Terms shall be brought solely in the State of Delaware.

YOU AND WE HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR RELATED PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHTS OR REMEDIES ARISING UNDER OR IN CONNECTION WITH THESE SITE TERMS OF USE. FURTHER, YOU AGREE THAT YOU MAY ONLY RESOLVE DISPUTES IN YOUR INDIVIDUAL CAPACITY, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR AS CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ACTIONS ARE NOT ALLOWED.

14. INJUNCTIVE RELIEF

In the event you breach or threaten breach of these Site Terms, you acknowledge and agree that we will be greatly and irreparably damaged and the damage will be difficult to quantify. Therefore, we may apply to any court of competent jurisdiction accepting jurisdiction under this specific provision, who, regardless of the Governing Law provision above, will apply the laws of its own jurisdiction in determining whether we will be granted an injunctive or other equitable relief to stop your breach or your threat of breach, without impairing, invalidating, negating or voiding our rights to relief in either law or equity.

15. ADDITIONAL LEGAL TERMS

No failure or delay by us in enforcing or exercising any right under any Site Terms or any Additional Site Policy shall constitute a waiver of that right. Other than as expressly stated in these Site Terms or any Additional Site Policy, the remedies provided herein are in addition to, and not exclusive of, any other remedies available to us at law or in equity. If any provision of these Site Terms or any Additional Site Policy is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.