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terms of use

FOMO Baking Co. Terms and Conditions of Use

We are pleased to welcome you to FOMO Baking Co. (“FOMO”) and the www.fomobaking.com website (the Website” or the “Site”).  These Terms and Conditions of Use (“Terms of Use”) govern your access to and use of the Website.  FOMO operates a website as well as an online retail store from which website users can view and purchase delicious gluten free, dairy free, egg free, nut free and soy free bakery products baked by FOMO which we will ship to our customers (the “Services”).  In these Terms of Use, the words “you” and “your” refer to each customer, user, Site guest or visitor and “we”, “us” and “our” refer to FOMO, its subsidiaries, successors in interest and assigns, and www.fomobaking.com.  

Please read these terms of use carefully before using this Website and make sure you understand them.  These Terms of Use, including all documents referenced herein, represent the entire understanding and agreement between FOMO and you regarding your use of this Website and supersede any prior statements or representations.  This Website’s Privacy Policy is incorporated into these Term of Use by reference and is made a part hereofYou are not authorized to use the Website if you do not agree to be legally bound by any or all of these Terms and Conditions.

Consent to Terms and Conditions

By using the Website and/or registering for an account, you agree that you have read and understood the Terms of Use, agree that you will comply with same for as long as you use the Website and represent your acknowledgement that you are legally bound by them.  

Use of the Site

Access to, distribution and/or use of the Website is subject to all applicable laws and regulations.  To the extent that access to, distribution and/or use of this Website would be deemed illegal by applicable law, such access, distribution and/or use is prohibited.  Each time you visit any area on the Website and/or register for any functionality of the Site, you are deemed to have confirmed your acceptance to these Terms of Use and the Site’s Privacy Policy.  If you do not agree to abide by these Terms of Use and the Privacy Policy, please do not use the Website.

By having accepted these Terms of Use, and/or placing orders through the Site or otherwise participating in any activities offered on the Site, you affirm, represent and warrant that:  (a) you are 18 years of age or older, and a resident of the United States; (b) all information you submit via the Website shall be truthful and accurate (and you will maintain the accuracy of such information); (c) you will abide by these Terms of Use; and (d) your use of the Website shall not otherwise violate any applicable law, rule or regulation.

Changes to the Terms of Use

From time to time, these Terms of Use may change.  FOMO reserves the right to modify these Terms of Use without prior individual notice.  We will post changes to the Terms of Use on the Site and changes will become effective once posted.   Your continued access to or use of the Site will be deemed as acceptance by you of the then-current Terms of Use.  Please review these Terms of Use often so that you will remain abreast of our current policies.

You can tell when the Terms of Use were last modified by checking the “last updated” date that appears at the top.

Ownership of the Website

FOMO owns, licenses and/or has the right to use this Website and all intellectual property rights to the same (collectively, “Materials”). FOMO hereby grants you permission to use the Website as set forth in these Terms of Use but nothing in these Terms shall be construed to confer upon you any license of or under any of FOMO’S intellectual property rights in the Materials. You acknowledge that you have no ownership rights in the Materials.  You further understand and agree that you will not use any trademarks, trade names, services marks, copyrights or logos of FOMO in any form or manner.

Except as otherwise indicated on this Site, copying, reproducing, uploading, downloading, transmitting or any other use of this Site or of any of the Materials, in whole or part, without the express permission of FOMO, is prohibited.  Any unauthorized access to, use or copying of this Site and/or the Materials may subject you to liability under applicable law, and may result in legal action.

Provision of the Services by FOMO

FOMO seeks to provide the best possible experience for its users.  You acknowledge and agree that the form and nature of the Services which FOMO provides may change from time to time without prior notice to you.  As part of this continuing innovation, you acknowledge and agree that FOMO may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally, at FOMO’s sole discretion.  If you have opened an account, FOMO, may disable your account, with no notice to you if, in FOMO’s sole and subjective discretion, you are in violation of any of the Terms of Use.

Setting Up Your Account  

For ease of making online purchases, you may decide to register with us and set up an account with a username and a password (your “Account”).  All information you provide must be truthful. You are responsible for the security of your access codes and passwords and will be solely liable for any use or unauthorized use of the Website under such access codes or passwords.  You must be at least 18 years old to set up an Account.  When you register, you will be asked to provide your name, a username and an email address. The information you provide to FOMO is subject to our Privacy Policy.  Please see our Privacy Policy for information concerning the collection and use of Personal Information from this Website.

Purchasing From the Site

All payment transactions are processed through and governed by the Terms and Conditions of Use and other policies of Shopify (www.shopify.com).  Please review carefully the terms and conditions of use on the Shopify website.  FOMO is not liable to buyers for any claims, losses, causes of action, or damages arising from or related to conduct or actions governed by the Shopify terms.

Shipping/Cancellation/Returns

FOMO does not permit cancellation of orders or returns of products. All of FOMO’S bakery products are freshly made each day and to a customer’s order. Accordingly, to maintain the integrity of our bakery products, once you place an order and that order is confirmed by email, that order is final and cannot be cancelled.

Shipping Orders

We ship nationwide to any location UPS will deliver.  Orders are shipped out one to two business days after they are placed. Orders are only shipped out Monday through Wednesday. If an order is needed by a specific date, please contact us at info@fomobaking.com with your order number in the subject line. While ground shipping is an option, we suggest 1-2 day shipping options to optimize the best taste and freshness of our products. This means, that most east coast destinations can utilize ground shipping, however, we recommend central and west coast customers opt for 1-2 day shipping. 

Delivery dates are approximate and transit times can change due to high holiday demand and unexpected weather. We use UPS as our third party shipping partner and their estimates are not guarantees. 

In-store Pickup

If "Pick Up" is selected at checkout, your order will be available to be picked two business days following your order placement. For example, if you place an order on Monday, it will be available for pick up on Wednesday Orders placed on Friday will be available for pick up on Tuesday. If a specific date for pick up is needed, and that date is more than two business days please email info@fomobaking.com with your desired pick up date and order number. We will email once to coordinate pick ups.

Resolving Disputes

If you have a dispute with FOMO relating to the Website or the Services, including any products you have purchased, please contact us at info@fomobaking.com and we will attempt to resolve the dispute with you. If we cannot resolve our dispute, then the Terms of Use will govern any legal dispute involving the Website and/or our Services.

Use in the United States

This Website is intended for use within the United States, and we control and operate the Website from the United States.  We make no representation that materials on the Site are appropriate or available for use outside the United States.  If you choose to access this Site from outside the United States, you do so at your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

Links

The Website may contain links to other applications, websites and social media features (collectively, “websites”) that are not controlled and/or maintained by FOMO including but not limited to Instagram and Facebook.  Access to and use of such other websites is at your own risk and subject to any Terms of Use and Privacy Policies which govern such websites.  By providing such links, FOMO shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information, promotions and/or products found on such websites. FOMO is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites or for any damages that may result therefrom.  Copyrights in the materials or information on the linked websites are owned by other organizations.  Moreover, such other websites may have privacy policies or terms of use that differ from those of the Website and/or may provide their users with less security than the Website.  Accordingly, you should review the privacy policies and terms of use on such other sites before using them.

Your Responsibilities

You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a backup of all your data and/or your equipment. You agree that you will not upload any spyware or malicious software to the Website.

You are responsible for maintaining the confidentiality of your password and account information, and you agree that you will restrict access to your device to avoid disclosure of such.  You further agree that you will be responsible for all activity taken under your password and/or account.

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Site and Services.  

User Conduct

In connection with your use of the Website, you may not and you agree that you will not:

  • violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
  • use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained on the Site;
  • use the Site, Material and content on the Site for any commercial or other purposes that are not expressly permitted by these Terms of Use or in a manner that falsely implies FOMO endorsement, partnership or otherwise misleads others as to your affiliation with FOMO;
  • dilute, tarnish or otherwise harm the FOMO brand in any way, including through unauthorized use of the Material, registering and/or using FOMO or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to FOMO domains, trademarks, taglines, promotional campaigns or Website content;
  • copy, store or otherwise access or use any information contained on the Website for purposes not expressly permitted by these Terms of Use;
  • interfere with or damage the Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
  • register for more than one FOMO account or register for a FOMO account on behalf of an individual other than yourself;
  • impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;

Limitation of Liability and Warranty and Use Disclaimer

FOMO endeavors to make sure that all information and data it originates on the Website is accurate.  However, FOMO is not responsible for any damages or loss related to the use of this Website. 

THIS WEBSITE, ALL CONTENT AND MATERIAL CONTAINED ON THIS WEBSITE, ALL SERVICES PROVIDED ON THIS WEBSITE AND ALL LINKS OR OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED "AS IS" AND TO THE FULLEST EXTENT PERMITTED AT LAW WITHOUT GUARANTEES, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITE AND/OR ITS FEATURES AND FUNCTIONS WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED.  THERE ARE NO GUARANTEES, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS REGARDING TITLE, SECURITY, ACCURACY, ACCEPTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITE OR THE MATERIALS AND CONTENT CONTAINED HEREON.  ANY INFORMATION CONTAINED WITHIN OR ON THIS WEBISTE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING.  FOMO RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THIS WEBISTE WITHOUT NOTICE AT ANY TIME AND TO THE FULLEST EXTENT PERMITTED AT LAW, ACCEPTS NO RESPONSIBILITY FOR THE WEBSITE OR SERVICES NOT BEING AVAILABLE AT ALL TIMES.

UNLESS PROHIBITED BY LAW, NEITHER FOMO (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES), NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS WEBSITE, SHALL BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL AND/OR ANY OTHER DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS APPLICATION OR FROM ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE.

TO THE FULLEST EXTENT PERMITTED BY LAW ASSUMES FOMO MAKES NO GUARANTEES, WARRANTIES, REPRESENTATIONS OR CONDITIONS ABOUT THE ACCURACY OR SUITABILITY FOR ANY PURPOSE OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE; AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO, REPRODUCTION, DISTRIBUTION AND/OR USE OF THIS WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO, REPRODUCTION, DISTRIBUTION OR USE OF FOMO’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE WEBSITE AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITE.

FOMO is not responsible for any damages or loss related to your reliance on any outdated version of these Terms of Use, including, but not limited, to any outdated version of our Privacy Policy.

Indemnity

Unless prohibited by law, you agree to indemnify FOMO, and each of its parent, subsidiary and affiliated entities (collectively, “FOMO Affiliates”), furnishing entities, officers, directors, members, employees, representatives, licensees, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) suffered, incurred or brought against any one or more of them by a third party relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms of Use; (ii) your use of the Website; and/or (iii) any violation of these Terms of Use.  You agree that your representations and warranties, and your obligation to indemnify FOMO, shall survive beyond any term for which these Terms of Use are in effect.

Electronic Communications

When you communicate with FOMO electronically, via email or otherwise, you consent to receive electronic communications from FOMO.  You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by FOMO satisfy any legal requirement that such communication be in writing.  FOMO  encourages you to retain your own copies of relevant information; however, upon your written request, FOMO will provide you with a copy of the information you provided to FOMO when creating your Account. Please see our Privacy Policy concerning providing information to FOMO, your consent to receiving information from FOMO, your ability to withdraw such consent, and FOMO’s obligations with respect to maintaining and/or returning any information you have provided to FOMO.  To request a copy of information you provided to FOMO, please contact us at info@fomobaking.com. 

With respect to all communications you make to FOMO directly and/or through the Website, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and FOMOe shall have no obligation to protect your communications from disclosure; (ii) FOMO shall be free to reproduce, use, publish, display, disclose and distribute your communications to others without limitation; and (iii) FOMO shall be free to use any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information, without obligation to you.

Acquisition of Business

In the event that FOMO, or an affiliate of FOMO is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, or in the unlikely event that FOMO goes out of business or enters bankruptcy, each User hereby acknowledges and agrees that the Website, all data collected on the Website (including Personal Information still within our possession, custody or control), and any of our rights and obligations under this Privacy Policy may be included in the assets of, and/or transferred pursuant to, such transaction, and that any acquirer or successor (or a third party through bankruptcy) of FOMO may continue to use the Personal Information as set forth in this Privacy Policy.  If that occurs, a notice will be posted to such effect on the Website and/or notification will be provided by any other media or contact method as may be required by applicable laws and regulations. 

Contact Us

If you have any questions concerning this Website or any of the policies set forth in these Terms of Use, please contact us at info@fomobaking.com.

Copyright Infringement - Notice and Take-Down Policy

FOMO values intellectual property and respects the intellectual property rights of others, and will remove materials on its Website that infringe the copyrights of others.  If you believe that your copyrighted material has been infringed by material contained on this Website, you may notify FOMO in writing as follows:

Address:         

223 Chestnut Street, Unit 1

Ridgewood, NJ 07450

 

Electronic Mail Address: info@fomobaking.com

In your notice, you must include the following:

  1. a physical or electronic signature of the owner of an exclusive right that is being infringed or of a person authorized to act on behalf of such owner;
  2. identification of the copyrighted work(s) that is (are) allegedly being infringed;
  • identification of the materials that are causing the infringement and that are to be removed, along with sufficient information to allow FOMO to locate such materials;
  1. contact information (e., name, address, email address) sufficient to enable FOMO to contact you;
  2. a statement to the effect that you have a good faith belief that the complained of use of the material was not authorized by the owner of the copyright, its agent or the law; and
  3. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly being infringed.

U.S. Export Controls

Software from or related to this Website (the “Software”) may be subject to United States export controls or the export controls of other countries from where you access the Website. No Software may be downloaded from the Website or otherwise exported or re-exported in violation of U.S. or other countries' export laws, as applicable.  Downloading or using the Software is at your sole risk

Disputes and Governing Law

Use of this Website and these Terms of Use shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions. In the event that any portion of these Terms of Use are deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, unless narrowed by construction, such portion of these Terms of Use shall, for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable portion had been more narrowly constructed so as not to be invalid, prohibited or unenforceable (or if such provision cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify such portion of these Terms of Use to the extent necessary to make such portion of these Terms of Use enforceable in such jurisdiction, and such portion shall then be applicable in such modified form in such jurisdiction).  If, notwithstanding the foregoing, any such portion of these Terms of Use would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such portion, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions set forth in these Terms of Use.  No narrowed construction, modification or invalidation of any portion of the Terms of Use shall affect the construction, validity or enforceability of such portion in any other jurisdiction. No waiver by FOMO of any term or condition of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and FOMO’s failure to assert any right or demand compliance with any provision of these Terms of Use shall not be deemed to constitute a waiver of any such right or provision.

Except where prohibited by law, as a condition of you clicking acceptance of these Terms of Use and/or accessing and/or using this Website, you agree that (1) any and all disputes and causes of action arising out of or connected with this Website shall be resolved individually, without resort to any form of class action, and exclusively by final and binding arbitration in New York within one year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association; and (2) judgment upon such arbitration award may be entered in any court having jurisdiction.  Unless prohibited by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration. 

The rules governing arbitration are different than those in court.  Arbitration does not involve a judge or jury and review is limited, but an arbitrator can award the same damages as a court.  Except as may otherwise be provided in AAA’s Consumer Due Process Protocol that allows consumers to file certain claims in small claims court, you understand that by accepting these Terms and Conditions, you are giving up your right to a trial in court, either with or without a jury. 

Unless prohibited by law, under no circumstances will you be permitted to obtain an award for, and by accessing and/or using the Website you waive all rights to claim, punitive, incidental, consequential or any other indirect damages (including multiplied and/or increased damages and/or attorneys' fees and court costs) for, any dispute or cause of action that you may have that relates in whole or part to this Website, and/or the Content and/or the Materials.

By accepting these Terms and Conditions, you have agreed to waive your right to recover any damages relating to your use of the Website. If such waiver is deemed unenforceable, you, nonetheless, and notwithstanding anything to the contrary set forth in these Terms of Use or otherwise, you agree that your recovery with respect to any and all claims, judgments, and awards for which you are entitled shall, unless prohibited by law, be limited to your actual out-of-pocket costs incurred, excluding attorneys’ fees and court costs. 

Notwithstanding anything to the contrary set forth in these Terms of Use, FOMO may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York and/or in any other court chosen by FOMO, in the event that FOMO believes that there is a violation, or a threatened violation, that has jurisdiction of any of FOMO’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.