Conditions of Use
Last updated: July 27, 2015
Welcome to Boomcups.com. Boom Cups Holding LLC and/or its affiliates ("Boom Cups") provide website features and other products and services to you when you visit or shop at Boomcups.com, use Boom Cups products or services, use Boom Cups applications for mobile, or use software provided by Boom Cups in connection with any of the foregoing (collectively, " Boom Cups Services"). Boom Cups provides the Boom Cups Services subject to the following conditions.
By using Boom Cups Services, you agree to these conditions. Please read them carefully.
We offer a wide range of Boom Cups Services, and sometimes additional terms may apply. When you use an Boom Cups Service (for example, Your Profile, Gift Cards, Your Media Library, will be subject to the guidelines, terms and agreements applicable to that Boom Cups Service ("Service Terms"). If these Conditions of Use are inconsistent with the Service Terms, those Service Terms will control.
Please review our Privacy Notice, which also governs your use of Boom Cups Services, to understand our practices.
When you use any Boom Cups Service, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you in a variety of ways, such as by e-mail, text, in-app push notices, or by posting notices and messages on this site or through the other Boom Cups Services, such as our Message Center. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
All content included in or made available through any Boom Cups Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the property of Boom Cups or its content suppliers and protected by United States and international copyright laws. The compilation of all content included in or made available through any Boom Cups Service is the exclusive property of Boom Cups and protected by U.S. and international copyright laws.
In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Boom Cups Service are trademarks or trade dress of Boom Cups in the U.S. and other countries. Boom Cups 's trademarks and trade dress may not be used in connection with any product or service that is not Boom Cups's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Boom Cups. All other trademarks not owned by Boom Cups that appear in any Boom Cups Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Boom Cups.
One or more patents owned by Boom Cups apply to the Boom Cups Services and to the features and services accessible via the Boom Cups Services. Portions of the Boom Cups Services operate under license of one or more patents.
LICENSE AND ACCESS
Subject to your compliance with these Conditions of Use and your payment of any applicable fees, Boom Cups or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Boom Cups Services. This license does not include any resale or commercial use of any Boom Cups Service, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any Boom Cups Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Conditions of Use or any Service Terms are reserved and retained by Boom Cups or its licensors, suppliers, publishers, rightsholders, or other content providers. No Boom Cups Service, nor any part of any Boom Cups Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Boom Cups. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Boom Cups without express written consent. You may not use any meta tags or any other "hidden text" utilizing Boom Cups's name or trademarks without the express written consent of Boom Cups. You may not misuse the Boom Cups Services. You may use the Boom Cups Services only as permitted by law. The licenses granted by Boom Cups terminate if you do not comply with these Conditions of Use or any Service Terms.
If you use any Boom Cups Service, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Boom Cups does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Boom Cups Services only with involvement of a parent or guardian. Alcohol listings on Boom Cups are intended for adults. You must be at least 21 years of age to purchase alcohol, or use any site functionality related to alcohol. Boom Cups reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
Visitors may post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Boom Cups reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
If you do post content or submit material, and unless we indicate otherwise, you grant Boom Cups a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Boom Cups and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Boom Cups for all claims resulting from content you supply. Boom Cups has the right but not the obligation to monitor and edit or remove any activity or content. Boom Cups takes no responsibility and assumes no liability for any content posted by you or any third party.
Boom Cups respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement.
RISK OF LOSS
All items purchased from Boom Cups are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
RETURNS, REFUNDS AND TITLE
Boom Cups does not take title to returned items until the item arrives at our fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, Boom Cups does not take title to the refunded item. For more information about our returns and refunds, please see our Returns Center
Boom Cups attempts to be as accurate as possible. However, Boom Cups does not warrant that product descriptions or other content of any Boom Cups Service is accurate, complete, reliable, current, or error-free. If a product offered by Boom Cups itself is not as described, your sole remedy is to return it in unused condition.
Except where noted otherwise, the List Price or Suggested Price displayed for products on any Boom Cups Service represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. The List Price or Suggested Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. For certain items that are offered as a set, the List Price or Suggested Price may represent "open-stock" prices, which means the aggregate of the manufacturer's estimated or suggested retail price for each of the items included in the set. Where an item is offered for sale by one of our merchants, the List Price or Suggested Price may be provided by the merchant.
With respect to items sold by Boom Cups, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by Boom Cups is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.
We generally do not charge your credit card until after your order has entered the shipping process or, for digital products, until we make the digital product available to you.
Boom Cups SOFTWARE TERMS
In addition to these Conditions of Use, the terms found here apply to any software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with Boom Cups Services (the " Boom Cups Software").
Parties other than Boom Cups operate stores, provide services, or sell product lines through the Boom Cups Services. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Boom Cups does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE BOOM CUPS SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BOOM CUPS SERVICES ARE PROVIDED BY BOOM CUPS ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BOOM CUPS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE BOOM CUPS SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BOOM CUPS SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE BOOM CUPS SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, BOOM CUPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BOOM CUPS DOES NOT WARRANT THAT THE BOOM CUPS SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BOOM CUPS SERVICES, BOOM CUPS' SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM BOOM CUPS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BOOM CUPS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY BOOM CUPS SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY BOOM CUPS SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Any dispute or claim relating in any way to your use of any Boom Cups Service, or to any products or services sold or distributed by Boom Cups or through BoomCups.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent BLYER & KURLAND PC, 390 North Broadway Suite 200 Jericho, NY 11753. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules 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. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Boom Cups will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. 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 location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
By using any Boom Cups Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Boom Cups.
SITE POLICIES, MODIFICATION, AND SEVERABILITY
Please review our other policies, such as our pricing policy, posted on this site. These policies also govern your use of Boom Cups Services. We reserve the right to make changes to our site, policies, Service Terms, and these Conditions of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
Boom Cups Holding llc.
390 north Broadway suite 200
Jericho, NY 11753
How to Serve a Subpoena
If you have a subpoena to serve on Boom Cups, please note that Boom Cups does not accept service via e-mail or fax and will not respond to the subpoena. All subpoenas must be properly served on BoomCups.com, preferably by mailing the subpoena to BLYER & KURLAND PC., Boom Cups' national registered agent. Please find below the New York address for BLYER & KURLAND PC. office in New York:
BOOM CUPS HOLDING LLC.
BLYER & KURLAND PC.
390 north Broadway suite 200
Jericho, NY 11753
Attn: Legal Department - Subpoena
Please note also that providing detailed and accurate information at the outset will facilitate efficient processing of your request. That information will include, for example, e-mail and/or credit card number used to make purchases for retail purchase information; the name, e-mail, and physical address of a seller for seller information; Kindle serial number for Kindle information (please note we do not have GPS location information); and IP address and complete time stamp.
Additional Boom Cups Software Terms
1. Use of the Boom Cups Software. You may use Boom Cups Software solely for purposes of enabling you to use and enjoy the Boom Cups Services as provided by Boom Cups, and as permitted by the Conditions of Use, these Software Terms and any Service Terms. You may not incorporate any portion of the Boom Cups Software into your own programs or compile any portion of it in combination with your own programs, transfer it for use with another service, or sell, rent, lease, lend, loan, distribute or sub-license the Boom Cups Software or otherwise assign any rights to the Boom Cups Software in whole or in part. You may not use the Boom Cups Software for any illegal purpose. We may cease providing any Boom Cups Software and we may terminate your right to use any Boom Cups Software at any time. Your rights to use the Boom Cups Software will automatically terminate without notice from us if you fail to comply with any of these Software Terms, the Conditions of Use or any other Service Terms. Additional third party terms contained within or distributed with certain Boom Cups Software that are specifically identified in related documentation may apply to that Boom Cups Software (or software incorporated with the Boom Cups Software) and will govern the use of such software in the event of a conflict with these Conditions of Use. All software used in any Boom Cups Service is the property of Boom Cups or its software suppliers and protected by United States and international copyright laws.
3. No Reverse Engineering. You may not, and you will not encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Boom Cups Software, whether in whole or in part, or create any derivative works from or of the Boom Cups Software.
4. Updates. In order to keep the Boom Cups Software up-to-date, we may offer automatic or manual updates at any time and without notice to you.
5. Export Regulations; Government End Users. You must comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities that may apply to the Boom Cups Software. If you are a U.S. Government end user, we are licensing the Boom Cups Software to you as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Boom Cups Software are the same as the rights we grant to all others under these Conditions of Use.