TERMS AND CONDITIONS
Last Updated and effective as of: July 3, 2023
Welcome to the Chillbox Rewards Program (the “Program”). These Chillbox Rewards Program Terms and Conditions form the agreement (the “Agreement”) between you (“you” or “your”) and Chillbox Convenience Stores(“Chillbox”) and govern the use and operation of, and your participation in, the Program and certain other related benefits and promotional activities as described below. This Agreement, together with applicable terms related to any promotional offers provided to you for use with the Program, constitute the entire agreement between you and Chillbox related to this Program and supersedes all proposals or prior agreements, whether oral or written, and all other communications between the parties relating to this subject matter.
PLEASE READ THIS AGREEMENT CAREFULLY. YOUR ACCEPTANCE OF THIS AGREEMENT, OR YOUR ENROLLMENT, USE AND CONTINUED USE OF THE PROGRAM CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, USE OR PARTICIPATE IN THE PROGRAM.
CHILLBOX MAY CHANGE THE TERMS OF THIS AGREEMENT OR THE PROGRAM, OR TERMINATE THE PROGRAM. BEFORE DOING SO, CHILLBOX WILL NOTIFY YOU BY E-MAIL OR OTHER ELECTRONIC MEANS, WHICH IS EXPLAINED BELOW IN SECTION 11.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT THAT AFFECTS YOUR RIGHTS. THE ARBITRATION AGREEMENT REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
YOUR BENEFITS UNDER THE PROGRAM (INCLUDING POINTS, REWARDS AND CLUB OFFERS) EXPIRE IF NOT USED IN A CERTAIN AMOUNT OF TIME, OR IF YOU HAVE NO ACCOUNT ACTIVITY FOR A PERIOD OF TIME. SEE SECTION 8 BELOW FOR DETAILS.
1. Program Description
The Program is a customer loyalty rewards program operated by Chillbox which permits registered members (individually a “Member” and collectively, “Members”) to earn points (“Points”) to redeem rewards, including, without limitation, discounts on the purchase of Chillbox convenience store items, and to receive other promotions, discounts, and offers (collectively, “Rewards”) by making qualifying purchases at participating Chillbox locations within the United States (“Qualifying Purchases”). Chillbox, in its sole discretion, determines which purchases will constitute Qualifying Purchases and whether such purchases are eligible for the Program, for earning Points, and/or redeemable for Rewards.
There is no fee associated with the Program. No entry fee, purchases, or proof of purchase are required to join and become a Member of or participate in the Program. Points and Rewards may only be used by the Member they were issued or provided to, and cannot be gifted, purchased, sold, bartered, brokered or otherwise transferred. The Points are the property of Chillbox. Membership in the Program and Points and Rewards have no cash value, are not redeemable for cash or cash equivalent, gift certificates or gift cards, are purely promotional, and do not constitute the property of any Member. No portion of any payment for purchases qualifying for the Program or any Points or Rewards Qualifying Purchases constitute consideration paid for any of the foregoing. Chillbox reserves the right to limit the redemption of specific Rewards and limit the number of Points and Rewards available.
2. Program Registration
Registration and participation in the Program is currently available to residents of the United States age sixteen (16) and older. Individuals who have not reached the age of majority may join the Program only with the permission of a parent or guardian. Employees, officers, directors, agents and representatives of Chillbox are eligible to join but may be excluded from certain promotions and activities. Points and Rewards may only be used in the United States at participating Chillbox locations. Chillbox may change these eligibility requirements at any time, with or without notice, and reserves the right to cancel a Member’s membership or participation, or to refuse membership to any applicant for any reason, in Chillbox’s sole discretion.
To fully register as a Member in the Program you must: (a) first download the Chillbox Rewards App from the Apple Store, Google Play Store or any other approved on-line stores or sites (the “App”); (b) provide your first and last name, a valid e-mail address, a valid phone number and a valid zip or postal code; at any participating Chillbox location; (c) create an account password; and (ed) select to join the Program, completing the registration and accepting this Agreement. Alternatively, in lieu of the mobile Rewards App, users may (a) pick up a free Program rewards card (“Rewards Card”) in stores. We may refuse to grant you, and you may not use, an e-mail that is being used by someone else, that may be construed as impersonating another person, that violates the intellectual property or other rights of any person, that is offensive, or that we reject for any other reason in our sole discretion. You represent that all information you provide during registration and throughout your participation in the Program are true and accurate, and you agree to update such information, as necessary to maintain its truth and accuracy. Chillbox is not responsible for your inability to receive or redeem Points or Rewards or any other loss arising from your failure to provide and maintain accurate contact information. Chillbox shall have the right to modify this registration process and the manner of accessing and using the Program at any time.
3. Payment Program
Upon registering as a Member, the Program may provide the ability for Members to upgrade their account to participate in an automated payment program and associate a payment card, bank account information or other payment arrangement (the “Payment Program”). Participation in the Payment Program is not required to register and participate in the Program. The Payment Program may permit Members to make purchases in connection with the Program using the Member’s provided payment information. Chillbox may update, change or cancel the Payment Program at any time. As an example, the Payment Program may permit Members to associate a valid debit card to the Member’s account via the App for making in-store payments using the App (“Debit Pay”). If the Payment Program is made available, to participate the Member may be required to: (a) provide Member information, including Rewards Card number, first and last name, and the e-mail address and phone number associated with the Member’s account; (b) provide a valid billing address; (c) provide additional personal identification information, including the Member’s driver’s license number and information, the Member’s birthdate, the last four (4) numbers of Member’s social security number, bank account information, including routing number, bank account number, and whether such account is a personal or business checking account; (d) create a four (4) digit security pin number, (e) select security questions and provide security answers; and (e) complete any additional requirements for the Debit Pay registration. Members may be subject to similar requirements if the Payment Program permits other payment arrangements, such as through the use of credit cards. Members may only associate the Member’s own payments cards with the Program and shall not associate any other person or third party’s payment cards. Chillbox, in its sole discretion, will determine the types of payment methods that may be used with the Payment Program, which may or may not include credit cards, or which may be restricted to only Debit Pay. The Payment Program may be limited to acceptance and use of a single payment card or bank account.
4. Earning Points
Immediately upon registration in the Program, Members will receive an initial Reward, which will post to a Member’s account within 7 days of registration. For example, that initial Reward may be a free fountain drink or food item.
Chillbox may offer certain promotions that allow Members to earn more Points for certain Qualifying Purchases as advertised via the App, a website or any other promotional method used by Chillbox. If Members do not identify themselves at the time of purchase, a manual adjustment can be made to add the Points to the Member’s account for up to thirty (30) days from the actual purchase date, but no purchases prior to becoming a Member or the launch of this benefit can be added. Receipt demonstrating purchase is required for manual adjustment.
Points are tracked at the time of a Member’s Qualifying Purchases and will only be credited to the Member’s account. Points are subject to expiration as set forth in this Agreement. Members may not share their membership, App login or Rewards Card with any other person, including with a Member’s spouse, relative, or any other household members.
In certain cases, it may take twenty-four (24) hours or more for Points to be processed and credited to a Member’s account. Chillbox is not responsible for, or liable to, any Member, person or entity, in any way, for any losses, costs or expenses incurred by a delay or error in crediting Points to a Member’s account.
5. Non-Qualifying Purchases
Members will not receive any Points for Non-Qualifying Purchases. “Non-Qualifying Purchases” means any purchases, transactions, activities, goods or services that Chillbox, in its sole discretion, determines do not constitute Qualifying Purchases, and/or which are ineligible for or are excluded from the Program, Points or receiving Points. As an example, the following goods, services, purchases and transactions are excluded from receiving or constituting Qualifying Purchases:
1. gas and fuel;
2. lottery purchases and payouts.
3. purchases of any goods or services that are not made in-store at participating Chillbox locations;
4. the value of any discounts, promotions, or coupons;
5. purchases or transactions made using Points, Rewards or other promotional items in the Program;
6. purchases that Chillbox or a particular Chillbox location rules ineligible for the Program;
7. purchases excluded by law;
8. credits and merchandise credits; and
9. taxes and federal, state, local, and other governmental fees and charges on purchases.
Chillbox has the right to make the final decision on whether any purchases constitute Qualifying Purchases or otherwise qualify for Points. Chillbox shall have the right, at any time, to change, update, modify, remove, or add any categories, goods or services that constitute Non-Qualifying Purchases.
6. Redeeming Rewards
Members may redeem Points received under the Program towards the issuance of Rewards. To redeem Points for Rewards, a Member may view available Points and Rewards and redeem them in the manner prescribed by Chillbox, which may include via the App or a website. A Member must have at least enough unredeemed and unexpired Points in the Member’s account (“Available Points”) to redeem a desired Reward or to redeem the minimum available Reward. Members may only redeem Available Points associated with the Member’s membership and account. When Members accumulate various Point totals or thresholds, Chillbox, in its sole discretion, may provide offers and promotions for the Member to use the Available Points, which may include, for example, towards free food or drink items, one-time purchase discounts or credits, and other sales promotions and incentives. In any single transaction, only one Member account may be used to redeem Points for Rewards. Points accrued by a Member in any purchase or transaction may only be redeemed for Rewards in a separate, subsequent purchase or transaction and may not be applied to previous purchases. The Reward must be presented and entered at the time of purchase. Unless otherwise stated as part of a Reward’s terms, a Reward may only be used and applied to a single purchase or transaction, and if the amount of the purchase or transaction total is less than the value of the Reward being used, then any unused portion of the Reward is forfeited, cannot be applied to a subsequent purchase or transaction, and will not be returned or credited to the Member’s Available Points or account. Rewards can only be redeemed by the Member by logging into the Member account. Rewards cannot be redeemed through any third-party platforms, by any third party, or by using any other Member’s account, App or login. Each Reward redeemed by a Member will be subject to specific terms, including its availability for the purchase of certain goods or services, restrictions on its use, and its period of availability and expiration. Please carefully review the specific details, terms, conditions, limitations, expirations and restrictions stated on or in connection with the Reward at the time it is redeemed or provided to You. Rewards provided to Members have set terms and will expire in accordance with the terms stated for that Reward. Determinations regarding redemption of Points and the terms governing the use and expiration of Rewards is subject to Chillbox’s sole discretion.
Once issued, Fuel Rewards will expire, and their expiration dates will vary. Read each Fuel Reward carefully for specific details, terms, conditions, expiration dates, limitations and restrictions.
Points will be subtracted from the Member’s account immediately when a Reward is redeemed based on the total Points for the requested Reward. Points will be restored to a Member’s account in the event Chillbox determines, in its sole discretion, that the Reward requested by that Member is unavailable, cannot be delivered, or an error occurred. Likewise, Points may be removed, reduced, or adjusted from a Member’s account in the event Chillbox determines, in its sole discretion, that the Member received or possesses more Points or Rewards which the Member is not entitled, whether the fault of Chillbox, the Member or a third party. Chillbox reserves the right to limit the redemption of specific Rewards and limit the number of Rewards available.
Attempts to redeem single use offers and verification codes for Rewards multiple times or through multiple users or Members, or Points that were incorrectly awarded or not earned constitutes fraud, are prohibited, and may result in the termination or suspension of a Member account and an adjustment or correction of Points or Rewards.
When a Member returns products or services, Points previously posted to the Member’s account for that purchase may be deducted from the Member’s Available Points balance. If a Member’s Available Points balance is insufficient to cover a deduction, the Member’s Available Points balance may go into the negative. Any Member whose Available Points balance is negative at any time may be subject to a suspension from all further activity or use of the Program, or a termination of the Member’s account and participation in the Program, in Chillbox’s sole discretion.
7. Club Offers
Chillbox may provide Members with additional ways to receive Rewards by enrolling in club offers, such as such as frequent buyer clubs, promotions, and other programs on particular transactions or Qualifying Purchases, (“Club Offers”). Club Offers may include, for example, opportunities to earn additional Points, birthday surprises and rewards, Member only discounts and rewards, and possible store contests and Member only events. Club Offers may be subject to additional terms and conditions which will be provided to Members at the time of enrollment or acceptance of Club Offers, such as via the App or a website. Read each Club Offer carefully for specific terms, conditions, details, limitations, expiration, and restrictions.
Chillbox reserves the right to make Club Offers, Points and other promotional offers available to select Members based on purchase activity, geographic location, Program participation, and/or information supplied by the Member, or other factors. Chillbox reserves the right to add, withdraw, amend, or otherwise change these types of opportunities at any time at its sole discretion, with or without notice to Members.
8. Expiration of Points, Rewards and Club Offers; Inactive Accounts
When Points are redeemed for Rewards, the oldest Available Points are applied and used first. Unless otherwise stated in this Agreement, Available Points expire twelve (12) months following the month after the Available Points were first credited to a Member’s account. Club Offers expire (12) calendar months after the date of enrollment for a Club Offer unless the additional terms and conditions of a Club Offer state otherwise, which may provide for an earlier or later expiration. Rewards expire as set forth in the terms provided with the Reward. If a Reward does not provide an expiration date, then the Reward will expire 13 calendars months following the date it was issued and applies to only gift cards issued as a reward. Once Available Points expire or are applied to redeem a Reward, those Available Points will be removed from the Member’s account. Points will not be added back to a Member’s account or to the Member’s Available Points if the Member does not use a Reward before its expiration, or if a portion of a Reward remains unused following its application to a purchase or transaction.
Chillbox reserves the right to automatically, and without notice, cancel a Member’s Program registration and Member account if the Member’s account remains inactive for a period of two (2) years or more. Such inactivity includes, for example, no login, access or use of the Program or the App, or if the Member does not make a purchase at a participating Chillbox location or acquire Points. You understand and agree that cancellation by Chillbox of a Program account will result in the cancellation and loss of all Points, Available Points, Rewards, Club Offers and any progress towards any other benefits associated with the Member’s account and the inability to earn and/or redeem further Points, Rewards and Club Offers.
9. Payment Program Restrictions
Members who successfully enroll in the Payment Program such as, for example, Debit Pay, may make in-store purchases at participating Chillbox locations directly through the App or other means authorized by Chillbox. The Member’s enrollment in the Payment Program constitutes the Member’s acceptance, consent, and authorization of all purchases made from the Member’s account, including from the Member’s mobile device using the App or other on-line or electronic means.
By providing Chillbox with payment information and credentials, the Member expressly authorizes and consents to Chillbox’s and Chillbox’s designated payment processors’ collection, storage, and use of that payment information and credentials, along with other related transaction information, including in connection with fulfilling and processing the Member’s payment and transaction for the full amount of the purchase or transaction.
Members who enroll in the Payment Program may receive additional benefits, including the receipt of Points for Qualifying Purchases. However, some payment methods may not be subject to the receipt of Points. For example, the use of Debit Pay may be subject to receipt of Points on Qualifying Purchases or qualifying transactions, while another form of card payment may not. Chillbox may provide specific terms for Point eligibility at the time of enrollment in the Payment Program or at the time a Member’s payment method is added. Members may use the Payment Program, such as Debit Pay, to make Non-Qualifying Purchases, however no Points will be earned or credited to a Member’s account for such Non-Qualifying Purchases.
Chillbox reserves the right, in its sole discretion, to decline any transaction, or to deactivate a Member’s payment method from the Payment Program in the event Chillbox believes there has been any fraudulent, illegal, unauthorized, or suspicious activity including, for example, if the payment method is declined, reported as frozen, inactive, lost, or stolen. You may opt-out of the Payment Program at any time, for any reason by removing your payment method from your Member account. A Member who removes their payment method or opts-out of the Payment Program, will remain eligible to participate in the Program, earn Points, redeem Available Points, use Rewards, and enroll in Club Offers.
10. Program Restrictions
A Member may not transfer or assign the Member’s Program membership or account, or any Program benefits, including Points, Available Points, Rewards and Club Offers. Each Member may only have a single membership and account in the Program. Only one Program membership will receive Points in any one transaction. Points, Available Points, Rewards and Club Offers have no cash or cash equivalent value. Chillbox reserves the right to approve, deny or revoke participation in the Program to any individual for any reason whatsoever on an immediate basis and without prior notice. If Chillbox determines that a Member has registered more than one (1) Program account or provided any false or incorrect information in connection with the Program or the Member’s account, Chillbox reserves the right to terminate the accounts immediately and without notice.
11. Right to Change/Modify/Cancel
Chillbox may, at any time, cancel, modify, restrict, waive or terminate this Agreement, the Program or any of the Program’s terms, conditions or restrictions under this Agreement, including but not limited to the rules for earning Points, using or applying Available Points and redeeming Rewards, and enrolling in Club Offers and the expiration policies for Program membership and use, Points, Available Points, Rewards, and Club Offers (a “Program Change”). Prior to any Program Change, Chillbox will first provide the Members with prior notice of the Program Change, which notice may be provided electronically via e-mail, the App or Chillbox’s website, and by providing a new or updated version of this Agreement containing the Program Change. A Program Change may affect the Members’ ability to acquire, use or redeem any Points, Available Points, Rewards or Club Offers, whether or not already earned. A Member’s continued participation in the Program following such notice of the Program Change constitutes the Member’s acceptance of the Program Change. The most current version of this Agreement will be available on the App and online and, upon taking effect, will supersede all previous versions of this Agreement. YOUR CONTINUED MEMBERSHIP OR USE IN THE PROGRAM AFTER A PROGRAM CHANGE CONSTITUTES YOUR ACCEPTANCE OF THE PROGRAM CHANGE. IF YOU DO NOT AGREE TO A PROGRAM CHANGE, YOU MUST CANCEL YOUR MEMBERSHIP IN THE PROGRAM.
12. Contacting Chillbox
Members may contact Chillbox with membership or Program questions, to cancel their membership, or with any other requests or questions by e-mail as follows:
13. Cancellation; Termination
A Member may cancel their membership in the Program at any time, for any reason by canceling their Program account, whether via the App, on-line, or by contacting Chillbox in the manner set forth above. If a Member’s membership in the Program is cancelled, whether by Chillbox or by a Member, any unused or unredeemed Points, Available Points, Rewards and Club Offers will automatically be cancelled and forfeited and will no longer be available for redemption or use. Chillbox reserves the right to suspend or terminate, at Chillbox’s sole discretion, immediately and without notice, any Member or Program account if Chillbox determines, in Chillbox’s sole discretion, that a Member has breached, violated or acted inconsistently with this Agreement or applicable law, for fraud or misuse of the Program or membership, or if the Member’s actions or conduct is harmful to Chillbox’s interests, to another Member or to another Chillbox customer. Chillbox reserves the right to deny future membership if Chillbox deems a person’s conduct to violate this Agreement.
Chillbox’s failure to insist upon or enforce your or another Member’s strict compliance with this Agreement will not constitute a waiver of any of Chillbox’s rights.
Upon cancellation or termination for any reason: (a) the Member’s participation in the Program and the Member’s account shall immediately be terminated and cease; (b) the Member’s access to and use of the App and the Member’s on-line account will be terminated and cease; (c) the Member will immediately cease all use of the Program, the App and any other access provided by Chillbox; and (d) the Member will no longer receive, have access to, or the ability to use or redeem Points, Available Points, Rewards, or Club Offers, which shall be cancelled and no longer available or honored. Chillbox has no obligation to and shall not compensate any Member for any unredeemed or unused Points, Available Points, Rewards, Club Offers, or other benefits of the Program following termination or cancellation of a Member’s account. It may take several weeks for a Member’s request to become effective. If a Member continues to receive Chillbox’s communications after expressing an opt-out preference, please contact Chillbox so that it may investigate the situation or circumstances.
14. E-Mail Communications
Upon registering with the Program and becoming a Member, individuals will sign up to receive e-mails regarding special offers and events, as well as new features of the Program. Program e-mails are in addition to brand marketing emails from Chillbox.
Chillbox marketing e-mails and Program marketing emails will include an opt-out link should individuals no longer want to receive any of these types of e-mails. Even if a Member opts-out of marketing emails, if the Program membership is still active, Members will continue to receive relationship/operational e-mails related to the Program unless the Member’s participation in the Program is cancelled. Individuals do not need to cancel their Program membership to opt-out from receiving Chillbox brand marketing e-mails, Program marketing emails, or e-receipt emails.
15. Members can opt-out of receiving Program marketing and Chillbox brand marketing e-mails by going to the user’s profile page on the App or website.
DISCLAIMER OF WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CHILLBOX MAKES NO WARRANTIES TO YOU OR TO ANY MEMBER, THE PROGRAM AND ALL INFORMATION, SERVICES AND MATERIAL AVAILABLE THROUGH THE PROGRAM ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT ANY WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND CHILLBOX DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, AND STAUTORY WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16. LIMITATION OF LIABILITY AND DAMAGES
YOU EXPRESSLY AGREE THAT NEITHER CHILLBOX, NOR THEIR AFFILIATED OR RELATED ENTITIES, VENDORS, CONTRACTORS, PROVIDERS, OR PAYMENT PROCESSORS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, CONTRACTORS, OR VENDORS, IS RESPONSIBLE OR LIABLE TO YOU, ANY MEMBER, OR TO ANY PERSON OR ENTITY WHATSOEVER FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT, EXEMPLARY, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND, NATURE, OR CHARACTER WHATSOEVER, WHETHER IN CONTRACT, TORT, OR OTHERWISE BASED UPON OR RESULTING FROM, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PROGRAM, THE PAYMENT PROGRAM, POINTS, AVAILABLE POINTS, REWARDS, CLUB OFFERS, USE OR ATTEMPTED USE OF ANY OF THE FOREGOING.
YOU EXPRESSLY AGREE THAT CHILLBOX’S TOTAL, COMPLETE AND AGGREGRATE LIABILITY TO YOU, WHETHER IN CONTRACT, WARRANTY, PRODUCTS LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (A) TEN AND 00/100 DOLLARS ($10.00), OR (B) THE TOTAL AMOUNT OF THE QUALIFYING PURCHASE MADE BY YOU THAT IS THE SUBJECT OF THE DISPUTE GIVING RISE TO THE LIABILITY.
IN NO EVENT WILL CHILLBOX BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF OR RESULTING FROM THE USE OF ANY POINTS, AVAILABLE POINTS, REWARDS, CLUB OFFERS, THE PAYMENT PROGRAM, OR THE PROGRAM BY SOMEONE OTHER THAN YOU.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT APPLY TO, LIMIT OR EXCLUDE LIABILITY FOR INJURIES: (A) TO THE BODY OR PERSONS; OR (B) CAUSED BY CHILLBOX’S WILLFUL, MALICIOUS, RECKLESS, OR GROSSLY NEGLIGENT ACTS OR OMISSIONS OR FRAUD.
ALL OF THE PROVISIONS, EXCLUSIONS AND LIMITATIONS OF LIABILITIES AND DAMAGES SET FORTH IN THIS SECTION 16 WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, WILL SURVIVE CANCELLATION OR TERMINATION OF YOUR MEMBERSHIP AND PARTICIPATION IN THE PROGRAM, AND ARE IN ADDITION TO OTHER LIMITATIONS AND EXCLUSIONS YOU HAVE AGREED TO IN CONNECTION WITH ANY OTHER AGREEMENTS BETWEEN YOU AND CHILLBOX INCLUDING, FOR EXAMPLE, USE OF THE APP AS SET FORTH IN SECTION 20 BELOW.
CERTAIN STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE ADDITIONAL OR OTHER RIGHTS AS THEY VARY FROM STATE TO STATE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH JURISDICTIONS, CHILLBOX’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PROGRAM, OR WITH ANY OF THESE TERMS AND CONDITIONS, CHILLBOX’S COMPLETE AND ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PROGRAM. THE FOREGOING REMEDIES SHALL APPLY EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF CHILLBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
17. No Relationship With You
You understand that Chillbox has not entered into any form of partnership, agency, fiduciary or special relationship with you under this Agreement or by granting you access to or use of the Program. The relationship of you and Chillbox is that of an independent contractor.
18. Governing Law
THE PROGRAM IS VOID WHERE PROHIBITED BY LAW. YOU AGREE THAT THIS AGREEMENT, THE PROGRAM AND ALL DISPUTES (AS DEFINED BELOW) WILL BE GOVERNED BY AND CONSTRUED UNDER THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW, AND WHERE FEDERAL LAW DOES NOT APPLY, THEN LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
19. Dispute Resolution by Binding Individual Arbitration
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. EXCEPT AS OTHERWISE NOTED BELOW, ANY DISPUTE INVOLVING YOU AND CHILLBOX OR ANY OF CHILLBOX’S AGENTS SHALL BE RESOLVED SOLELY AND EXCLUSIVELY THROUGH INDIVIDUAL ARBITRATION AND CONTAINS A JURY AND CLASS ACTION WAIVER.
This arbitration provision shall be interpreted broadly.
“Dispute” shall be interpreted broadly and include any claim or controversy arising out of or relating in any way to this Agreement, its negotiation, execution, acceptance, performance, termination, or breach, or your relationship with Chillbox and its subsidiaries, affiliates, agents, contractors, vendors, designees and their successors and assigns, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Disputes also include: (a) the Program, the Payment Program, Points, Available Points, Rewards, Club Offers, or your registration or joining the Program or your termination or cancellation from the Program; (b) use of App or any websites in connection with the Program; (c) any products or services offered, sold, or distributed by Chillbox in connection with the Program including, but not limited to, the advertising of or the sales practices for such products and services; and (d) claims that are the subject of a putative class action in which no class has been certified. Dispute shall also include all disputes that arose in connection with your enrollment in the Program and after the cancellation or termination of the Program or your membership in the Program, including, but not limited to, any claims that are the subject of a purported class action litigation.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE DISPUTES. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY, LESS OR LIMITED DISCOVERY, AND LIMITED APPELLATE REVIEW. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD.
Either party may initiate an arbitration proceeding by sending a demand to the American Arbitration Association (“AAA”) that describes the basis for the claim. You may serve a copy of a demand on our registered agent as designated and provided under applicable law. The arbitration will be governed by the AAA’s Consumer Arbitration Rules or Commercial Arbitration Rules (collectively, the “AAA Rules”), as appropriate, and as modified by this Agreement, and will be administered by the AAA. The AAA Rules and the form for filing an arbitration claim are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, however we will reimburse those fees (but not any attorney’s fees) for claims totaling less than Ten Thousand Dollars ($10,000) unless the arbitrator determines your claims are frivolous. If the arbitrator finds that either the substance of your claim or the relief sought in your demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Chillbox for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. You may choose to have the arbitration conducted by telephone, based on written
submissions, or in person in the county where you live or at another mutually agreed upon location.
YOU AND CHILLBOX AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THIS MEANS THAT YOU MAY NOT PURPORT TO ACT ON BEHALF OF A CLASS OR ANY OTHER PERSON. 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. The arbitrator may not award relief for or against anyone who is not a party to the arbitration proceeding. Further, unless both you and Chillbox agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If a court determines that public injunctive relief may not be waived and all appeals from that decision have been exhausted, then the parties agree that any claim for public injunctive relief shall be stayed pending arbitration of the remaining claims. If this specific paragraph is found to be unenforceable, then the entirety of this dispute resolution provision (except for the jury trial waiver) shall be null and void.
NOTWITHSTANDING ANY OF THE FOREGOING, ANY DISPUTE THAT FALLS WITHIN THE JURISDICTIONAL SCOPE AND AMOUNT OF AN APPROPRIATE SMALL CLAIMS COURT SHALL BE BROUGHT IN SMALL CLAIMS COURT ON AN INDIVIDUAL BASIS EXCLUSIVELY IN A COURT LOCATED IN JACKSONVILLE, DUVAL COUNTY, FLORIDA, AND EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURT. IN ADDITION, EITHER PARTY MAY ELECT TO BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION, WHEREVER LOCATED, TO SEEK TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE PROGRAM FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CHILLBOX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY CHILLBOX OR YOU, AND ARE ALSO WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of, or your participation in, the Program. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending arbitration proceeding.
20. Other Agreements
Your participation in the Program requires you to download and use the App and Chillbox’s website(s) and on-line services, which are subject to one or more separate and independent agreements between you and Chillbox that are governed by their own terms and conditions, and nothing in this Agreement shall amend, modify or supersede any of those agreements.
21. Privacy Notice
In connection with your participation and use of the Program, You will provide to Chillbox, and Chillbox will collect information about you. Please review Chillbox’s Privacy Notice for information about Chillbox’s commitment to protecting your privacy and its collection and use of information.
22. Additional Terms
Chillbox’s waiver of a breach of this Agreement or Chillbox’s failure to exercise any right under this Agreement shall only be effective if in writing. It is your responsibility to provide Chillbox with the appropriate contact information if a waiver or request is desired. In no event shall any waiver constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Any modification of any term or condition of this Agreement shall be effective only if in writing and signed by authorized representatives of all parties. No other act, usage or custom shall be deemed to modify this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances. The parties acknowledge and agree that headings, titles and captions for particular paragraphs, sections and subsections of this Agreement have been inserted solely for reference purposes and should not be used to interpret or construe the terms of this Agreement. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.