85°C reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.
3. Accessing the Site and Account Security
We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users.
If you choose, or are provided with, a user name, password or any other piece of information as part of our or LevelUp’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password or other security information. You agree to notify us and LevelUp immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You acknowledge that neither 85°C nor LevelUp is responsible for third party access to your account that results from theft or misappropriation of your account.
4. Products and Pricing
All products, goods, services, features and their pricing and availability and any other information on the Site may be subject to change at any time without notice at our sole discretion. In addition, the inclusion of any products or services on the Site does not imply or warrant that these products, services, or features will be available at any time. We make no representations as to the accuracy, correctness or completeness of any information on the Site.
We reserve the right, but are not obligated, to limit sales of our products or services to any person, geographic region or jurisdiction. We also reserve the right to discontinue any product, services or features at any time and may require verification of information prior to the acceptance and/or delivery of any products or services.
Any offer for any product or services made on the Site is void where prohibited.
5. Links to Other Sites; Third Party Services
The Site may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of 85°C and 85°C is not responsible for the contents of any Linked Site, including without limitation any link contained on a Linked Site, or any changes or updates to a Linked Site. 85°C is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by 85°C of the site or any association with its operators.
Certain services made available via the Site are delivered by third parties, including but not limited to the 85°C Sweets Rewards Program and the 85°C App. By using any product, service or functionality originating from the Site, you hereby acknowledge and consent that 85°C may share such information and data with any third party with whom 85°C has a contractual relationship to provide the requested product, service or functionality on behalf of 85°C users and customers.
6. Linking to the Site and Social Media Features
You may link to the Site’s homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our expressed written consent.
The Site may provide certain social media features that enable you to:
• Link from your own or certain third-party websites to certain content on the Site.
• Send e-mails or other communications with certain content, or links to certain content, on the Site.
• Cause limited portions of content on the Site to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
• Establish a link from any website that is not owned by you.
• Cause the Site or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other website.
• Link to any part of the Site other than the homepage.
• Otherwise take any action with respect to the materials on the Site that is inconsistent with any other provision of these Terms.
We may disable all or any social media features and any links at any time without notice in our discretion.
7. Your Use of the Site; Intellectual Property
You are granted a non-exclusive, non-transferable, revocable license to access and use the Site strictly in accordance with these Terms. As a condition of your use of the Site, you warrant to 85°C that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
All content on the Site, such as texts, graphics, logos, images, as well as compilation thereof, and any software used on the Site, is the property of 85°C or its licensors and protected by copyright, trademark and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright, trademark and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reserve engineer, participate in the transfer or sale, create derivative works, or in any way exploit the content, in whole or in part, found on the Site. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the expressed written permission of 85°C and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of 85°C or our licensors except as expressly authorized by these Terms.
8. Use of Communication Services
The Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Services specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or any other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Services; harvest or otherwise collect information about others, including email addresses, without their consent; violate any applicable laws or regulations.
85°C has no obligation to monitor the Communication Services. However, 85°C reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. 85°C reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
85°C reserves the right at all times to disclose any information necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in 85°C’s sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. 85°C does not control or endorse the content, messages or information found in any Communication Service and, therefore, 85°C specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.
9. Materials provided to 85°C or posted on the Site
85°C does not claim ownership of the materials you provide to 85°C (including feedback and suggestions via email or otherwise) or post, upload, input or submit to or through the Site or our associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting 85°C, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their businesses including, without limitation the right to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. 85°C is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in 85°C’s sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
10. Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
• Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notices is:
85°C Copyright Agent
Brea, California 92821
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA
11. International Users
The Site is controlled, operated and administered by 85°C from our offices within the United States. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws. You agree that you will not use 85°C content accessed throughout the Site in any country or in any manner prohibited by any applicable laws, restrictions or regulations. 85°C makes no claims that the Site or any of its content is accessible or appropriate outside the United States.
You agree to indemnify, defend and hold harmless 85°C, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Site or services provided therein, any user postings made by you, your violation of Terms or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. 85°C reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which even you will fully cooperate with 85°C in asserting any available defenses.
13. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER 85°C NOR ANY PERSON ASSOCIATED WITH 85°C MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER 85°C NOR ANYONE ASSOCIATED WITH 85°C REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
85°C HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Limitation of Liability
IN NO EVENT WILL 85°C, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
15. Governing Law and Jurisdiction
All matters relating to the Site and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, these Terms or the Site shall be instituted exclusively in the federal courts of the United States or the courts of the State of California located in Orange County, California. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
16. Waiver and Severability
No waiver of by 85°C of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of 85°C to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
17. Feedback and Information
Any feedback you provide at this site shall be deemed to be non-confidential. 85°C shall be free to use such information on an unrestricted basis.
18. Contact Us
85°C welcomes your questions or comments regarding these Terms:
85°C Bakery Cafe
Brea, CA 92821
Attention: Customer Service
Last Revised: 02/14/2016