Terms of use

Last Updated: 08/15/2024

This Terms of Use Agreement (this "Agreement") is a legal agreement between you and Bragg Live Food Products, LLC (hereinafter “Bragg”, “we”, “our”, or “us”) that governs your access or use of any portion of our website and the products, information and services made available to you when you visit our website, website pages, and/or online services (collectively, the “Site”). If you use our Site on behalf of another person or entity, then (a) all references to “you” and “your” throughout this Agreement will include that person or entity, (b) you represent that you are authorized to be bound by the terms of this Agreement on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates this Agreement, that person or entity agrees to be responsible to us. By using or accessing the Site, you agree to be legally bound by this Agreement.

This Agreement includes your acceptance to resolve any disputes related to Bragg, this Agreement, and your use of the Site by following all the terms and conditions of Bragg’s Agreement to Arbitrate as set forth herein. You also agree to comply with each of the other terms or agreements on this Agreement page that apply to you including Bragg’s Privacy Policy. Immediately discontinue use of the Site if you do not agree to all the terms of this Agreement.

BY ACCESSING OR USING ANY PART OF THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THIS AGREEMENT, WHICH YOU EXPRESSLY ACKNOWLEDGE CONTAINS AN ARBITRATION AGREEMENT TO WHICH YOU ARE BOUND, A WAIVER OF CLASS-ACTION RIGHTS TO WHICH YOU ARE BOUND, A JURY WAIVER TO WHICH YOU ARE BIUND, AND LIABILITY LIMITATIONS TO WHICH YOU ARE BOUND. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE SITE AT ALL. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY ACCESS OR USE OF SITE BY YOU IS STRICLTY PROHIBITED IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT.

Updates to this Agreement and the Site

We may revise or otherwise update this Agreement at any time. We encourage you to periodically review this Agreement to see if there have been any changes. Please check the date "Last Updated" at the top of this page. Changes to this Agreement are effective immediately, and your continued use of the Site represents your continued consent to be bound to this Agreement as revised. We may also make improvements or changes to the Site, or changes or improvements to the offerings on our Site, from time to time at our discretion, and we may do this at any time without any notice or liability to you or any other person.

Unauthorized Uses

While using our Site, you must comply with all applicable statutes, orders, regulations, rules, and all other laws. You may not use our Site for any fraudulent or unlawful purpose, and you may not take any action to interfere with our Site. By way of example, without limitation, you may not (and you expressly agree, represent and warrant that you will not) do any of the following:

  • Violate our Intellectual Property rights (defined below) or those of any third party;
  • Sell, resell, rent, license, sublicense or otherwise use any of the content or Intellectual Property on this Site to commercially profit or receive compensation or consideration of any kind;
  • Engage in speech that is threatening, abusive, harassing, defamatory, pornographic, discriminatory, vulgar, profane, libelous, violent, fraudulent, tortious, or otherwise objectionable, including unauthorized or unsolicited advertising;
  • Reproduce, duplicate or copy any portion of this Site;
  • Impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity or express, or imply that we endorse you or any statement you make;
  • Violate or attempt to violate the security of our Site;
  • Disseminate any viruses, worms, spyware, adware or other malicious computer code, file or program that is harmful, invasive or may or is intended to damage, change, hijack or monitor the Site or any of our software, hardware or equipment;
  • Use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, to collect any information from our Site;
  • Assist any persons in violating this Agreement or applicable statutes, orders, regulations, rules, and other laws governing the use of the Site.

Intellectual Property Rights

All content ("Intellectual Property") available through the Site is protected by copyright laws, trademark laws, trade-secret laws, trade-dress laws, trade-name laws, unfair competition laws, and other laws protecting proprietary content. You acknowledge that all copyrights, trademarks, service marks, patents, trade-dress, look and feel, designs, layouts, logos, taglines, scripts, tutorials, artwork, and all other intellectual property or other proprietary rights of any type in and to the Site, and all modifications, derivative works, or copies, of the Site (or any portion thereof) regardless of who made them, shall remain the sole and exclusive property of Bragg. Bragg does offer a revocable, limited, non-exclusive license for certain uses of its Intellectual Property, subject to the following agreement, which is wholly incorporated as part of this Agreement by reference as if fully set forth herein, accessible here.

User-Submitted Information

You are solely responsible for any information you provide us, and you agree, represent and warrant that any and all information you transmit through our Site or to us by any other means is truthful, accurate, not misleading and offered in good faith, and you agree, represent and warrant that you have the right to submit, upload, provide or share such content. You also agree not upload, post or otherwise make available any content protected by copyright, trademark or other proprietary right of any third party (unless you have express written authority), and you shall be solely liable for any damages or any other harm resulting from the same.

By submitting any content to us (“User-Submitted Content”), other than personally identifiable information or bank account information related to payments made in connection with the purchase of our products or services, you grant to Bragg (or warrant that the owner of such content has expressly granted to Bragg) a royalty-free, perpetual, irrevocable and unrestricted right and license (a) to use, reproduce, display, modify, adapt, publish, translate, transmit, distribute or otherwise make available to others such User-Submitted Content (in whole or in part and for any purpose) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed; (b) to exercise all copyright, trademark, publicity, privacy and other proprietary rights with regard to such User-Submitted Content; and (c) to use your name, likeness and/or other information in any and all media and/or communications. You also agree that the Bragg is free to use any ideas, concepts, know-how or techniques that you send to us for any purpose.

User-Accounts

If you have set up an account with Bragg, you agree to accurately maintain and update any information about yourself and your account. You further agree that you are responsible for all activities that occur under your account, and you explicitly acknowledge that you are solely responsible for maintaining the confidentiality of your login credentials and the security of your account. You also agree to notify us of any unauthorized use of your login credentials or any other breach of security that you become aware of by emailing us at info@bragg.com.

Third-Party Content and Links to Third-Party Websites

Any information, statements, opinions or other material provided by third parties and made available on our Site, including without limitation all links to any third-party websites (“Third-Party Content”), are not warranted by Bragg, and Bragg makes no guarantees about the validity, accuracy, truthfulness, completeness, or reliability of any Third-Party Content on our Site or any Third-Party Content contained on third-party websites made available by links on our Site. Under no circumstance will Bragg be liable for any loss or damage caused, directly or indirectly, by your reliance on any such Third-Party Content. If you decide to visit any linked website, you do so at your own risk. Bragg does not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon.

Social Media Pages

We may maintain a presence on social media websites, including without limitation, Facebook, YouTube, LinkedIn, Twitter and other social networking sites (collectively, "Social Media Pages"), to share information about our products and services. All comments, visuals and other materials posted by visitors to our Social Media Pages do not necessarily reflect the opinions or ideas of Bragg, and we reserve the right to remove postings that we determine are inappropriate.

Notice of Copyright Infringement

If you believe that any Content on our Site infringes upon any copyright which you own or control, you may send a written notification, containing the information required under 17 U.S.C. §512(c)(3), to our designated copyright agent at info@bragg.com.

Minors Must Obtain Necessary Consent

If you are under 18 years of age (or the age of legal majority where you live), use of our Site is prohibited unless you have the permission of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of the minor, including any breach of this Agreement. If you are a user that is not located in the US, you represent and warrant that you are: (a) at least the minimum age required to legally enter into a contract in your jurisdiction or (b) have consent from a parent or legal guardian to use this Site. Regardless of jurisdiction, you further represent that you are legally and mentally competent to agree to these terms.

No Warranties, Disclaimers, Indemnity & Limitation of Liability

THE SITE, INCLUDING WITHOUT LIMITATION ALL OF THE SITE’S SERVICES AND PRODUCTS ARE PROVIDED “AS AVAILABLE” AND “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. BRAGG DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OR FOR DAMAGES OF ANY KIND ARISING OUT OF THE INABILITY TO USE THE SITE OR THE SITE’S FEATURES. BRAGG DOES NOT WARRANT THAT ANY PRODUCTS OR SERVICES WILL BE IN STOCK, SAFE, DEFECT-FREE, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED IN SHIPMENT.

BRAGG DOES NOT REPRESENT OR WARRANT THAT THE SITE, ITS SERVICES OR COMMUNICATIONS SENT TO YOU WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. BRAGG MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE OF ANY KIND THAT THE SITE, ITS FEATURES, ITS SERVICES, AND/OR ITS PRODUCTS, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. BRAGG WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT OR SERVICES ON THE SITES, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES.

BRAGG DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITES, AND BRAGG WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. BRAGG WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING.

IN NO EVENT WILL BRAGG, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “BRAGG” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, STRICT LIABILITY, WARRANTY, OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITE, ITS SERVICES AND/OR ITS PRODUCTS, EVEN IF BRAGG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. BRAGG WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR PROFIT, OR LOSS OF GOOD WILL.

TO THE EXTENT PERMITTED BY LAW, BRAGG’S AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT(S) TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT, $100.

You agree to defend, indemnify and hold harmless Bragg, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including reasonable legal fees) incurred by or asserted against any of the Indemnified Parties arising out of, relating to or resulting from: (a) your violation of any provision of any terms in this Agreement; (b) your misuse of any Product purchased by you on the Site or directly from Bragg; (c) any other party’s access and use of the Site with your device, username, IP address or browser (d) our lawful and permitted use of your user content in the context of providing use and access to the Site; (e) your misuse of the Site; (f) your negligence or other misconduct; or (g) the execution of any the terms of use and conditions in this Agreement (collectively “Claims”). You agree to promptly notify Bragg of any Claims, cooperate with Bragg in defending such Claims, and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). We may, in our sole and absolute discretion, control the disposition of any such Claim, with all reasonable fees and costs arising therefrom being your sole responsibility. You may not settle any Claim without our express written consent.

You agree that Bragg will never be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits—and Bragg shall not have any liability or responsibility for any acts, omissions or conduct of any user or other third-party. You agree to indemnify and hold harmless Bragg from and against any and all claims, damages, losses, costs (including without limitation reasonable attorneys' fees) or other expenses that arise directly or indirectly out of your breach of any provision of this Agreement or your activities in connection with the Site. If any portion of these disclaimers or limitation of liability is found to be invalid or unenforceable for any reason, then the aggregate liability of Bragg shall not exceed one hundred dollars ($100).

Consent to Communication

If you provide us with a telephone number, email address, postal address, or other form of contact information, you expressly agree and consent that we, or our authorized service providers, can use that information to contact you. This means you also consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.

Effect of Invalidity

In the event a court having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of this Agreement shall remain effective.

Waivers

No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.

Relationship of the Parties

Nothing in this Agreement shall be construed as representing that one is an agent or employee of the other. Also, nothing in this Agreement creates an affiliation between you and Bragg or an endorsement or sponsorship of you by Bragg of any kind.

Any text, photographs, artwork, ideas, questions, reviews, comments, messages, communications with us or others, suggestions or other content that you submit, post to or disseminate using the Sites or otherwise provide to us are referred to as “User Content”. The following terms apply to User Content:

License to Bragg. By sharing, submitting or uploading any User Content, you grant Bragg a non-exclusive, irrevocable, worldwide license to use your User Content. Subject to the license above, you retain ownership of User Content.

Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights”, that you have to prevent us from exploiting any User Content.

Right to Name and Likeness. You also grant us the right to use and display, for any purpose, the name, photograph and any other biographical information that you submit with any User Content.

Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Site or otherwise. Accordingly, you agree and confirm that: (1) you are at least 18 years of age or older; (2) you have all rights, licenses, consents and releases necessary to grant Bragg the required rights to use and/or disseminate any User Content; and (3) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or Bragg’s use of your uploaded User Content (or any portion thereof) on, through, or by the means of the Sites, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral, intellectual property, publicity, privacy, or any other right, or result in the violation of any applicable law or regulation.

No Obligations Regarding User Content. We will not have any obligation to hold any User Content in confidence or compensate you or anyone else for its use. We have the right to remove, edit or access any User Content for any reason and in our sole discretion.

Termination

Bragg may suspend, limit or terminate all or a portion of your access to the Site at any time with or without notice and with or without cause, including without limitation, if Bragg believes that you have violated or acted inconsistently with the any of the provisions of this Agreement. All limitations of liability and indemnity, as well as any other provisions that by their nature should survive, shall survive any such termination.

Bragg’s SMS/MMS Mobile Message Marketing Program

By signing up, enrolling, or otherwise agreeing to accept and opt-in to receive messages from Bragg via text, you are expressly voluntarily consenting to and agreeing to receive recurring automated promotional and personalized marketing text messages from Bragg or our service providers on our behalf, including via email, telephone calls, text messages, chat and push notifications to any email address or telephone or mobile number provided by you or on your behalf to the Site or to Bragg. You agree that communications may include prerecorded messages or may be generated by automatic telephone dialing systems. Standard text messaging charges applied by your mobile telephone carrier will apply to text messages you send or receive. Communications from the Site, Bragg and its affiliates may include but are not limited to operational communications concerning your account or use of the Site, updates concerning new and existing features at Bragg, marketing or promotional communications related to Bragg or third parties with whom we have a business relationship, and information concerning Bragg and industry developments.

By opting in to receive SMS/MMS mobile messages by providing your phone number to Bragg, you hereby expressly acknowledge, accept and agree that all the terms and conditions of this instant Agreement also expressly apply to all of your activity relating to your agreeing to receive SMS/MMS mobile messages from Bragg, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Agreement to Arbitrate” section below.  By continuing to be enrolled in any Bragg promotional text messaging program, or by providing your cell phone number for transactional, operational, or informational text messages, you agree to any changes and updates to this Agreement.  You expressly acknowledge and agree that Bragg can and may update this Agreement at any time, but that any such changes or updates do not provide you with a new opportunity to opt out of arbitration.

Users That Choose to Opt In

 

Bragg offers a promotional and marketing SMS/MMS Program (“Program”) that allows Users to receive SMS/MMS mobile messages that may be sent using an automatic dialing system, by or on behalf of Bragg, at the cell phone number you provide us. By affirmatively opting into the Program, such as through online or application-based enrollment forms or by voluntarily providing your cell phone number to Bragg, you consent to receive marketing, promotional, transactional, operational, or informational text messages at that phone number, including but not limited to order confirmations; shipping and delivery notifications; special offerings and deals, and general advertising of Bragg’s products. Bragg makes no guarantee that it has the ability to deliver messages to all mobile carriers and message and data rates from your carrier may apply. Opting in to this Program is not a condition of purchasing any goods offered by Bragg.

 

Users That Choose to Opt Out

 

To stop participating in the Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. After texting STOP, END, CANCEL, UNSUBSCRIBE, or QUIT, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a short period while Bragg processes your request. If you need further assistance, text HELP to the number sending the message or email us at bragg-cs@bragg.com.  By affirmatively opting in to our Program and being subject to these SMS Terms & Condition, you agree that the foregoing options are reasonable methods of opting out, and you agree that you were provided with reasonable and sufficient notice and instructions on how to opt out of the Program, and you agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

 

Eligibility, Change in Phone Number, and Duty to Notify and Indemnify

 

By opting into Bragg’s promotional text Program and being subject to these SMS Terms & Conditions or by otherwise providing your cell phone number to Bragg, you warrant that you are the age of majority in your jurisdiction. You further warrant that you are the current subscriber or authorized user of the phone number you have provided.

If you change, sell, transfer, forfeit, or deactivate the phone number you provided to Bragg, you agree to notify Bragg immediately and complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions and failure to do so constitutes a material breach of this provision and of the Agreement.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Our Disclaimer of Warranty: You acknowledge and agree that we will have no liability associated with or arising from your failure to provide accurate enrollment information, including, without limitation, your failure to receive offers and important information and updates about the Program. If we have reasonable grounds to suspect that the information you provided is untrue, inaccurate, or incomplete, we may suspend or terminate your enrollment in the Program. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program.

Governing Law, Jurisdiction, Venue, and Claims Subject to Arbitration

YOU AND BRAGG MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION (“AGREEMENT TO ARBITRATE”). This will prohibit you and Bragg from bringing any class, collective, consolidated, or representative proceeding against each other, and will also prohibit you and Bragg from participating in or recovering relief under any current or future such actions brought by someone else. Arbitration is more informal than a lawsuit in court: there is no judge or jury in arbitration; discovery in arbitration may be more limited than discovery in litigation; and court review of an arbitration award is limited.

You and Bragg mutually agree that any dispute, claim, or controversy between you and Bragg, its affiliates or their respective officers, directors, employees or representatives (collectively “Bragg” for purposes of this Section), whether based on past, present or future events, arising out of or relating in any way to: (a) this Agreement, (b) any of the terms of use and/or terms and conditions contained in this Agreement and prior versions thereof, (c) the Site, (d) any of the Site’s features, technologies, website pages, services, links, online content, offerings, goods, and products currently or previously available on or through the Site, (e) your relationship with Bragg, (f) your information provided to Bragg, (g) the threatened or actual suspension, deactivation, or termination of your use and access to the Site, (h) payments made by you or payments made or allegedly owed to you, (i) any promotions, credits, or other offers; and/or any other federal, state, and local statutory and common law claims (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section. All disputes concerning the arbitrability of a Covered Matter (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) will be decided exclusively by the arbitrator, and not any federal, state, or local court or agency, except as expressly provided herein.

You and Bragg acknowledge and agree that all Covered Matters and all claims and disputes arising out of or relating to this Agreement or arising out of or relating to your use of the Site shall be resolved exclusively through arbitration in accordance with the terms, conditions, and procedures set forth in the instant Agreement to Arbitrate, unless a valid opt out notice was submitted or the claim is being pursued in small claims court instead of through arbitration. Among other things, the Agreement to Arbitrate states that you and Bragg both agree that all claims may only be conducted on an individual basis (and not in a class, consolidated, or representative action) and that prior to bringing any dispute or claim, the person making the dispute or claim must first send the other party, by certified mail, a completed valid Notice of Dispute. You and Bragg acknowledge and agree that, except for disputes that exclusively relate to the infringement of Intellectual Property rights (“IP Claims”), claims and disputes that are not resolved during the Informal Resolution Period as defined below, including claims that are unrelated to IP Claims but are jointly filed with IP Claims, will only be resolved by a neutral arbitrator through final and binding arbitration instead of in a court.

You and Bragg acknowledge and agree that any dispute concerning this Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. federal law, without regard to any conflict of laws rules or principles that would cause the application of the law of another jurisdiction. If, for any reason, a claim proceeds in court rather than in arbitration, you and Bragg agree that the exclusive jurisdiction and venue for any legal proceeding, claim or dispute is (1) the Central District of California United States District Court, (2) the Superior Court of Ventura County, California, or (3) the Small Claims Court of Ventura County, California. You and Bragg both agree that all claims and disputes can be litigated only in the federal or state courts in Ventura County, California, USA, and you and Bragg each agree to personal jurisdiction in those courts. This Agreement shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions.

If we don't act to enforce a breach of this Agreement, that does not mean that Bragg has waived its right to enforce this Agreement. You may not assign or transfer this Agreement to anyone without our consent. However, you agree that Bragg may assign this Agreement to its affiliates or a party that buys it without your consent. You agree that there are no third-party beneficiaries to this Agreement.

You and Bragg acknowledge and agree that the arbitration of any claim will be administered by ADR Services, Inc. and shall be subject to ADR Services’ most current version of its Arbitration Rules. If ADR Services is not available to arbitrate, the parties will mutually select an alternative arbitral forum and set forth this agreement in writing signed by both parties, and absent a mutual selection, a court may select the arbitral forum under FAA Section 5. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute.

It is your and Bragg’s intent that California law governing arbitration agreements shall apply, and if California law cannot apply, then Delaware law governing arbitration agreements shall apply. If neither California or Delaware law can be applied, the arbitrator shall select the state with the governing law in accordance with ADR Services’ Arbitration Rules.

You and Bragg agree that any claim or dispute at law or equity that has arisen or may arise between you and us will be resolved in accordance with the Agreement to Arbitrate provisions set forth herein. Please read this information carefully. Among other things it:

    • mandates the submission of a Notice of Dispute and participating in informal dispute resolution between you and Bragg before a demand for arbitration can be made,
    • affects your and our rights and will impact how claims between you and us are resolved, including your and our agreement to waive the right to trial by jury,
    • includes a Prohibition of Class and Representative Actions and Non-Individualized Relief pursuant to which you agree to waive your right to participate in a class action lawsuit against us, and
    • requires you to follow the Opt-Out Procedure to opt-out of the Agreement to Arbitrate by mailing us a written notice that must be postmarked no later than 30 days after the earliest date you accessed and accepted this user agreement for the first time.

If a dispute arises between you and Bragg, our goal is to learn about it and address your concerns. If we are unable to do so to your satisfaction, we aim to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and Bragg must be reported to customer service online through the Bragg Help Center at any time, or by calling (800) 446 1990 from Mon-Fri 5:00 AM to 10:00 PM PT and Sat-Sun 6:00 AM to 8:00 PM PT.

You and Bragg each agree that any and all disputes or claims that have arisen or may arise between you and Bragg, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation, or any other legal theory, that arises from or relates to your use of the Site, your access of any features, services, links and any content on the Site, including from any third-parties, your relationship or interactions with Bragg as an individual consumer or potential consumer of Bragg’s goods, the arbitrability, validity, enforceability, or scope of these Terms of Use or any portion of them (“claim” or “claims”), shall be resolved exclusively through final and binding arbitration or in small claims court. You or Bragg may assert claims in small claims court instead of in arbitration if the claims qualify and so long as the matter remains in small claims court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted.

Notices of Dispute

Before bringing any dispute or claim, the person making the claim must first send the other party, by certified mail, a completed Notice of Dispute. Any Notice of Dispute to Bragg should be mailed to the following address entitled Bragg Live Food Products, Attn.: Legal Notice of Dispute: 1209 Orange St, Wilmington, DE, 19801.
 
To be valid, the Notice of Dispute must contain all of the following information: (1) the original signature of the person making the claim (electronic or digital signatures are not acceptable), (2) the complete and accurate name, mailing address, email address, and phone number of the person making the claim, (3) a detailed description of the nature and basis of the claim(s) that are being asserted, including a detailed statement of the specific relief sought by the person making the claim(s), and (4) all documents and information available to and in the possession of the person making the claim(s) that supports the basis of the claim(s) and the relief sought. The Notice of Dispute requirements are essential in order to give the parties a meaningful chance to resolve disputes informally.
 
After a valid Notice of Dispute is received by you or Bragg, you and Bragg agree to make a good-faith effort to negotiate the resolution of the claim(s) identified in the Notice of Dispute for at least 60 days or for a longer period as mutually agreed to in writing by you and Bragg (the “Informal Resolution Period”). We both agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. The parties therefore agree that, during the Informal Resolution Period, before either party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally the claim(s) identified in the Notice of Dispute. If you and Bragg are unable to resolve the claims described in the Notice of Dispute within the Informal Resolution Period, you or Bragg may commence an arbitration proceeding or suit in small claims court. You or Bragg cannot file any claim in arbitration before the end of the Informal Resolution Period. If you or Bragg file a claim in arbitration without first mailing a valid Notice of Dispute and then also participating in the Informal Resolution Period, you and Bragg agree that the non-complying party’s claim shall be dismissed and the non-complying party shall be liable to the other party for any damages, costs, and fees, including arbitration fees, attorney fees, and expert fees. Engaging in the informal dispute resolution process is a requirement that must be fulfilled before commencing arbitration, and the arbitrator shall dismiss any arbitration that is filed before each of us fully and completely comply with these informal dispute resolution procedures. If an arbitration is dismissed because a party failed to comply with these informal dispute resolution procedures, the parties agree that the party that failed to comply with the informal dispute resolution procedures shall be responsible for paying any arbitration filing fees and costs incurred by the other party.

Prohibition of Class and Representative Actions and Non-Individualized Relief

You and Bragg agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Bragg mutually and expressly agree in writing otherwise, the arbitrator(s) may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator(s) may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Bragg customers.

Arbitration Procedures

Any arbitration will be administered by ADR Services, Inc. and shall be subject to ADR Services’ most current version of its Arbitration Rules at adrsservices.com. If ADR Services is not available to arbitrate, the parties will mutually select an alternative arbitral forum, and absent a mutual selection, a court may select the arbitral forum under FAA Section 5. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute.

The arbitrator will be either an individual retired judge or attorney licensed to practice law in the state of California and will be selected by the parties from ADR Services’ roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within sixtty (60) days of delivery of the Demand for Arbitration, then ADR Services will appoint the arbitrator in accordance with its rules. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law.

Any arbitration hearings shall be held in Ventura County or Los Angeles County, California, or via phone or video conference, unless both of the parties expressly agrees, in writing, to use a different location. If the value of the relief sought is $25,000 or less, the arbitration will be conducted based solely on written submissions, unless any party requests an in-person, telephonic, or video conference hearing or the arbitrator decides that a hearing is necessary. In cases where an in-person hearing is held, you and/or Bragg may attend by telephone or video conference, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. No court or arbitrator shall be bound by rulings in prior arbitrations involving different Bragg customers, but a court or arbitrator will be bound by rulings in prior arbitrations involving the same Bragg customer to the extent required by applicable law. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in California state or federal court and the arbitration shall automatically be stayed pending the outcome of that proceeding.

Costs of Arbitration

In the event the arbitrator determines that either the substance of your or Bragg’s claim or the relief sought was frivolous or brought for an improper purpose, then you or Bragg may seek to recover from you or Bragg any fees it paid, including attorneys’ fees, to the extent permitted by the ADR Services’ rules and applicable law.

The arbitrator’s award shall be final and binding. Judgment on the award rendered by the arbitrator may be entered or confirmed in any California state or federal court or in the state or federal court in the U.S. county where you reside. TO THE EXTENT PERMITTED BY LAW, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S); RELIEF AWARDED CANNOT AFFECT OTHER USERS.

If the arbitration award includes any injunction or a monetary award that exceeds $35,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of June 2003 at https://www.jamsadr.com/appeal/.

The fees that shall apply to arbitrations administered by ADR Services are set forth on ADR Services’ website, available as of November 5, 2021 at https://www.adrservices.com/rate-fee-schedule/. Unless otherwise prohibited by law or the rules governing the arbitration, all disputes relating to or arising out of the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator or administrator, and the arbitration shall be stayed pending the resolution of such disputes by a court. Both parties agree not to oppose or interfere with any negotiations or agreements between the other party and the arbitration administrator, or individual arbitrator, relating to a party’s portion of the fees. The arbitrator, however, may disallow any private agreement between an administrator, on the one hand, and the negotiating party, on the other hand, if the arbitrator believes that the private agreement undermines his or her neutrality as arbitrator.

Any finding that a claim, counterclaim, or defense was filed for purposes of harassment or otherwise violates the standards set forth in Federal Rule of Civil Procedure 11(b) shall entitle the other party to seek their attorneys’ fees, costs, and expenses. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred by such party after the offer was made.

In the event that this Agreement to Arbitrate is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator, you and Bragg agree that any claim or dispute that has arisen or may arise between you and Bragg must be resolved exclusively by a state or federal court located in Ventura or Los Angeles County, California. You and Bragg agree to submit to the exclusive personal jurisdiction of the courts located within Ventura or Los Angeles County, California for the purpose of litigating all such claims or disputes.

Severability

With the exception of any of the provisions in the Prohibition of Class and Representative Actions and Non-Individualized Relief section above, if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in the Prohibition of Class and Representative Actions and Non-Individualized Relief section above is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) may be severed from arbitration and the other parts of this Agreement to Arbitrate shall still apply. All other disputes subject to arbitration under the terms of the Agreement to Arbitrate shall be arbitrated under its terms.

Opt-Out Procedure

You can choose to opt out of the Agreement to Arbitrate by sending us by certified mail a written opt-out notice. The opt-out notice must be postmarked no later than 30 days after the date you accept this user agreement for the first time. For the sake of clarity, the date you accept this user agreement is the earliest date you visited, accessed, viewed, or used our Site. You must mail the opt-out notice to Bragg Live Food Products, Attn.: Opt-Out Notice of Agreement to Arbitrate: [insert address of the company’s registered Agent]. For any opt-out request to be valid, it must include your name, address, phone number, the email address(es) used by you to interact with the Site or interact with Bragg in any way, and you must sign the opt-out notice for it to be effective (electronic or digital signatures are not acceptable). This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of this Agreement to Arbitrate, all other parts of the user agreement will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

General

You expressly acknowledge and agree that Bragg can and may update this Agreement at any time, but that any such changes or updates do not provide you with a new opportunity to opt out of arbitration. The foregoing Agreement and its terms are between you and Bragg and no other person has any right to enforce this Agreement or any of its terms on your behalf. Your rights are not transferable. Each paragraph is intended to operate separately. If any court or relevant authority determines that any terms herein are invalid or unenforceable, those terms will be enforced to the maximum extent permissible and the remaining terms will remain in full force and effect. If we delay or chose not to enforce any terms, that will not mean that we have waived our rights or that you do not have to comply with these terms. These terms may be amended by us from time to time. Your use or access of the Site after any changes go into effect shall constitute your acceptance of those changes. If you do not agree to any updates or changes that we make, you must immediately stop your use of or access to the Site.