Terms of service

Welcome to our website, mobile application, and related interactive features, products, services, applications or downloads (collectively, the “Services”), which are owned by Simmer Coffee Company, LLC DBA Simmer Coffee House and its respective subsidiaries and affiliated companies (collectively "Simmer Coffee," “Simmer Coffee House,” “we,” “our,” or “us”). These Terms of Service (“Terms”) apply to and govern our Services that link to it, regardless of how you access or use them, including through mobile devices.

PLEASE REVIEW THESE TERMS CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS, INCLUDING LIMITATIONS IN THE GOVERNING LAW SECTION THAT ELIMINATES YOUR ABILITY TO PURSUE DISPUTES AS PART OF A CLASS OR GROUP, LIMITS YOUR RECOVERY OF CERTAIN EXPENSES, WAIVES ANY RIGHT TO RECEIVE PUNITIVE AND SPECIAL AND OTHER DAMAGES, AND LIMITS THE TIME PERIOD WHEN CLAIMS MAY BE MADE. BY USING THE SERVICES, YOU ARE ACCEPTING THESE TERMS AND THE TERMS OF OUR PRIVACY POLICY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICES FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS OR THE TERMS OF OUR PRIVACY POLICY, DO NOT USE ANY OF OUR SERVICES.

Additional terms and conditions may apply to the purchase of products, such as shipping and return policies. By using these Services, you agree to such terms and conditions.

If you have entered into a separate enterprise agreement with us for specific services, then the terms of that agreement will control to the extent that the enterprise agreement conflicts with these Terms.

PRIVACY. Simmer Coffee cares about the privacy of your information. Please read our Privacy Policy, which outlines how our Services will collect information about you, how information will be shared and secured, and certain rights you have with respect to your information. Our Privacy Policy is incorporated into and is a part of these Terms.

USERS UNDER 13 YEARS OLD. The Services are not targeted toward, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms.

ACCOUNT CREATION

You understand that you may need to create an account to have access to parts of the Services. In consideration of your use of the Services, you will: (a) provide true, accurate, current and complete information about yourself as prompted by the Services' registration process and (b) maintain and promptly update your information to keep it true, accurate, current and complete. If Simmer Coffee suspects that such information is untrue, inaccurate, not current or incomplete, Simmer Coffee has the right to suspend or terminate your account and refuse any and all use of the Services.

You are entirely responsible for the security and confidentiality of your password and account and for restricting access to your computer, smartphone, tablet, or other device used to access the Services. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services. Please note that anyone able to provide your username and password or has access to our mobile application on your device will be able to access your account, so you should take reasonable steps to protect this information.

USER OBLIGATIONS

You agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Services. Without limiting the generality of the foregoing, you agree that you shall not use nor disclose to any other party in a manner not permitted by these Terms any personally identifiable information which you receive or which is made available from Simmer Coffee in connection with these Terms or on the Services. In addition, you also acknowledge and agree that use of the Internet and access to or transmissions or communications with the Website is solely at your own risk.

You are prohibited from sending or posting any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane messages or materials on the Services. You may not post material on the Services, or otherwise use the Services in any manner, that could: (i) humiliate, threaten, or injure other people or their property rights, including, but not limited to, intellectual property rights; (ii) violate the privacy or publicity rights of other individuals or entities; (iii) be considered criminal conduct or give rise to civil liability; or (iv) otherwise violate any law or these Terms. You further understand and agree that posting unsolicited advertisements on the Services is expressly prohibited by these Terms. As set forth in our Privacy Policy, we may fully cooperate with any law enforcement authorities, court order, or subpoena requesting or directing us to disclose the identity of anyone posting such materials.

You agree that you will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Services; or (iii) bypass any measures we may use to prevent or restrict access to any portion of the Services or our computer systems. Any unauthorized use of our computer systems is a violation of these Terms. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to prevent or cure the violation, including without limitation, the immediate removal of your content from the Services and termination of your access to the Services.

COPYRIGHT, TRADEMARK, AND OWNERSHIP

All of the content displayed on the Services, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations ("Content"), is owned by Simmer Coffee, its licensors, agents or its Content providers. All elements of the Services, including, without limitation, the Services’ general design, Simmer Coffee trademarks, service marks, trade names (including the Simmer Coffee name, logos, and the Services’ design), and other Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services may only be used for the intended purpose for which they are being made available. Except as may be otherwise indicated on the Services, you are authorized to view, play, print and download documents, audio and video found on our Services for personal, informational, and non-commercial purposes only. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Content or Simmer Coffee trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without Simmer Coffee prior written consent. The use of Simmer Coffee trademarks on any other website is not allowed without our prior express written permission. 

Simmer Coffee prohibits the use of Simmer Coffee trademarks as a “hot” link on or to any other website unless establishment of such a link is approved in advance. The Services, their Content and all related rights shall remain the exclusive property of Simmer Coffee or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Services.

FEEDBACK AND SUBMISSIONS

Simmer Coffee welcomes your feedback and suggestions about Simmer Coffee products or services or the Services. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to Simmer Coffee, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Simmer Coffee and enable Simmer Coffee to use such Feedback. Simmer Coffee will not be liable for any use or disclosure of any Feedback.

You expressly grant Simmer Coffee a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. This policy is intended to avoid the possibility of future misunderstandings if projects or ideas developed by Simmer Coffee seem similar to ideas contained in your Feedback.

Simmer Coffee does not encourage and strongly discourages any Feedback or other submissions that result from any activity that: (i) may create a risk of harm, loss, injury, emotional distress, death, disability, disfigurement, or illness to you, to any other person, or to any animal; (ii) may create a risk of any loss or damage to any person or property; or (iii) may constitute a crime or create civil liability. You agree that you have not and will not engage in any of the foregoing activities in connection with producing your submission. Without limiting the foregoing, you agree that in conjunction with your submission, you will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, and will not otherwise engage in any activity that may result in injury, death, property damage, or liability of any kind. Simmer Coffee may reject or remove any submissions that Simmer Coffee believes, in its sole discretion, include any inappropriate or prohibited material.

SPECIAL OFFERS AND PROMOTIONS

On occasion, Simmer Coffee may issue promotion codes or other special offers. These codes and special offers are non-transferable and may only be used by the intended recipient; these codes have no cash value and are not redeemable for cash. We may reduce the redemption value if the total value of the promotional code exceeds the price of the item. You may not combine multiple promotional codes in one transaction. Simmer Coffee is not responsible for any financial loss arising out of our refusal, cancelation, or withdrawal of a promotion or any failure or inability of a customer to use a promotional code for any reason. Discounts and sales prices may not be applied to previous orders. We may shorten the duration of any special offer or promotion.

LINKS. Simmer Coffee may provide links, in its sole discretion, to other websites solely as a convenience to you. These websites are maintained by third parties over which Simmer Coffee exercises no control. Any activities you engage in involving third-party websites are subject to privacy policies, terms and conditions, and other rules issued by the operator of those websites. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located on or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from our Services, you do so entirely at your own risk.

Running or displaying these Services, or any information or material displayed on these Services, in frames or through similar means on another website without our prior written permission is prohibited.

ONLINE SALES – PRODUCTS AND SERVICES

Simmer Coffee provides online ordering services to users who are 18 years of age or older. Unless specifically agreed to by Simmer Coffee, you may only purchase products and services for personal, non-commercial use, and Simmer Coffee may refuse any order that it has cause to believe is for onward sale other than through distribution channels approved by Simmer Coffee. Simmer Coffee makes no representation or guarantees that products or services available on the Services are appropriate or available for use in locations outside the United States. If you choose to access this Services from locations outside of the territory, you do so at your own risk. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Service.

By submitting a completed order for Simmer Coffee products and services (the "Goods") you offer to purchase the Goods you select and submit to Simmer Coffee through the online order form. In addition, Simmer Coffee offers an online subscription service (the "Subscription") for certain Goods, including coffee beans (the "Subscription Products"). By submitting a completed order form for a Subscription for the Subscription Products, you offer to purchase the Subscription you select and submit to Simmer Coffee through the online order form. Simmer Coffee may accept your order by sending you an electronic order confirmation that your order has been accepted. Simmer Coffee may reject your order in its sole discretion.

For all charges for any Goods sold on the Services, Simmer Coffee will bill your credit card or alternative payment method offered by Simmer Coffee or our designated service providers. You understand that we may hold and store your payment information to facilitate payment and future charges. You agree to provide valid and updated payment information and you represent to us that you are the authorized user of the card or payment account. Simmer Coffee may add or remove available payment methods at any time in its sole discretion. In the event legal action is necessary to collect on balances due, you agree to reimburse Simmer Coffee for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access and cellular data services needed for use of these Services and any and all fees charged to you by your financial institution related to the charges. Payment obligations are non-cancelable and fees paid are non-refundable. If you cancel your Subscription in the middle of the month, we will not issue a refund for any portion of the amount charged for that month. Simmer Coffee may suspend or terminate your account, in addition to other rights and remedies, if fees are past due. You shall provide Simmer Coffee with written notice of any disputed charges within ten (10) business days of the date of the charge. Notice of the dispute must provide in reasonable detail a statement of the basis for disputing the charge.

SUBSCRIPTION DETAILS

The Subscription is for the delivery of Simmer Coffee Subscription Products at scheduled intervals and quantities of your choosing. The quantity of Subscription Products in each delivery will be based on the initial quantity you select on the order form.

All Subscriptions will automatically renew for the same period and quantity as your initial Subscription, unless you cancel or modify your Subscription as set forth in these Terms. You may cancel your Subscription at any time prior to the estimated shipment date for the next renewal period in order to avoid automatic Subscription renewal and the next billing cycle. If you do not cancel your Subscription as set forth in these Terms, we will bill the applicable Subscription fee for the renewal Subscription, plus any applicable taxes and fees.

It is very important to understand that you will not receive a notice from Simmer Coffee that your Subscription is going to automatically renew, and if you wish to avoid charges for a renewal Subscription, you must cancel your Subscription as set forth in these Terms. You can cancel or modify your Subscription by e-mailing Simmer Coffee at info@simmercofee.com or logging into your Simmer Coffee account and following the instructions.

PRODUCTS AND SPECIFICATIONS

Details of the Goods available for purchase are set out on the Services. All prices are displayed and charged in US dollars. All applicable sales and other taxes are in addition to the sale price. Discounts and sales prices may not be applied to previous orders. We reserve the right to shorten the duration of any special order or sales promotion. All features, content, specifications, products and prices of Goods described or depicted on these Services are subject to change at any time without notice.

Simmer Coffee attempts to describe its Goods as accurately as possible. However, Simmer Coffee does not warrant that descriptions of the Goods are accurate, complete, current, or error-free. All features, content, specifications, Goods, and prices described on the Services are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and provided for convenience purposes only. Packaging may vary from that shown. We make reasonable efforts to accurately display the attributes of our Goods, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your device will accurately display such colors.

The inclusion of any Goods on the Services at a particular time does not imply or warrant that these Goods be available at any time, and we reserve the right, without prior notice, to limit the order quantity on any Goods and/or refuse service to any customer. Occasionally, the manufacture or distribution of certain Goods may be delayed for a number of reasons. In such an event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the Goods ordered will be used only in a lawful manner and in accordance with these terms.

DELIVERY

When an order is placed, it will be shipped to an address designated by you as long as that shipping address is compliant with the shipping restrictions contained on the Services. A delivery fee may apply to Goods delivered to you by Simmer Coffee and by placing an order, you agree to pay such fee. All purchases from the Services are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the Services pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. If delivery is available, Simmer Coffee will estimate the time of delivery; however, Simmer Coffee does not guarantee any particular delivery date and disclaims any liability for delays.

RETURNS

All sales are final. However, if an unworn/unwashed item is defective, you may return it within 30 days of purchase for a refund. Returns will not be accepted after 30 days from purchase.

Refund Policy Exceptions

To protect all our customers and make sure that we handle every return or exchange with reasonable fairness, we cannot accept a return or exchange (even within thirty days of purchase) in certain situations, including:

  • Products damaged by misuse, abuse, improper care or negligence, or accidents (including pet damage)

  • Products showing excessive wear and tear

  • Products lost or damaged due to fire, flood, or natural disaster

  • Products with a missing label or label that has been defaced

  • Products returned for personal reasons unrelated to product performance or satisfaction

  • Products that have been soiled or contaminated

  • On rare occasions, past habitual abuse of our Return Policy

  • Products purchased from third party sellers

  • Items marked “Final Sale” cannot be returned, refunded or exchanged.

For online orders, please submit a return or exchange request on our website. 

You will be required to enter the email you used when placing your order for access to our Returns & Exchanges Portal. Please note, emails from us may be placed in your spam email folder.

You may be required to send the product back to us in order to complete the refund or exchange at the address below. Original shipping charges will not be refunded. 

For in-shop purchases, please bring the defective item and receipt to the location where it was originally purchased.

SIMMER CIRCLE REWARDS PROGRAM

The Simmer Circle Rewards Program (“Program”) is offered at the sole discretion of Simmer Coffee, is subject to these Terms and the terms of our Privacy Policy, and may be modified or canceled in our sole discretion at any time, with or without notice, even though such changes may affect the value of points or rewards already accumulated. The Program is accessible through the Simmer Coffee mobile application (“Simmer Coffee App”). If you do not agree to these Terms, do not use or access the Program or Simmer Coffee App. 

By participating in the Program you have the opportunity to collect points and Simmer Coffee benefits and other offers (“Rewards”) that may be redeemed at participating Simmer Coffee houses. Simmer Coffee is not responsible for any temporary inability to access or redeem points or Rewards. Points and Rewards have no cash value, cannot be redeemed for cash or any other form of credit, and have no value until presented for redemption in accordance with these Terms. You have no ownership interest in accrued points or Rewards, and accrued points and Rewards do not constitute your property. Points, Rewards, and Program accounts may not be purchased, sold, transferred, bequeathed, inherited, or assigned, except as permitted through any feature of the Simmer Coffee App; any unauthorized transfers shall be deemed a violation of these Terms. You may have only one (1) Program account that is personal to you. If we determine, in our sole discretion, that you have more than one account we may suspend or terminate any of your accounts, and you will immediately forfeit all points and Rewards. You may not use another’s account without permission. Use of the word “earn” in these Terms, in the Simmer Coffee App, or in our promotional materials in relation to the Program, points, or Rewards shall mean “collect” and shall not mean that points or Rewards have any value until they are presented for redemption in accordance with these Terms. Taxing authorities may determine that points or Rewards received through participation may be subject to tax liability. In that case, any tax liability, including disclosure obligations, connected with the receipt and/or use of the points or Rewards is your responsibility.

ONLINE ORDERING – ORDER AHEAD

Simmer Coffee may make available to you the ability to order online via the Simmer Coffee App and/or website from our participating Simmer Coffee locations. Minimum order amounts may apply. Any applicable delivery fees, taxes and other amounts due in connection with your order will be identified when you place your order. There may be limits on the dollar values and number of orders that may be placed online. You are responsible for payment of your order by means of a payment option made available online at the time of ordering. We use third party providers and may accept various third party services to process payments. The Simmer Coffee location identified when you place your order is responsible for fulfilling your order and for any questions or other communications regarding your order. Discounts, coupons and other offers may not be able to be combined with online ordering. Every participating location may not have all menu items online. You may be able to customize your online order. You may be able to, and in some circumstances you may be required to, use your Simmer Coffee account (or sign up for Simmer Coffee) in connection with certain online ordering, in which case the Simmer Coffee Program terms will also apply. 

Fraudulent Activity. We reserve the right to suspend or terminate any Program account, remove points, remove or reduce your balance, and block or ban any user if we determine, in our sole and absolute discretion, that the Program account was created, or that any of the points or monetary balance of the Program account were obtained, produced, or acquired, through any fraudulent or illegal activity, whether yours or any third party, including but not limited to any activity that violates these Terms or any applicable local, state, or federal law or regulation. Suspended or terminated accounts may be reactivated by us if we determine, in our sole and absolute discretion, that the circumstances merit reactivation based on criteria that we choose. Points or monetary balances removed by us due to suspected fraudulent or illegal activity, or via Simmer Coffee gift card purchased through a third-party, will not be reimbursed by us even if the account owner was not aware of the fraudulent or illegal activity. We have no liability to you for any third-party fraud or unlawful activity associated with your Simmer Coffee or Program account.

Termination. We reserve the right to terminate your Program account and/or participation in the Program, revoke points and Rewards without notice if we determine, in our sole discretion, that you have violated these Terms (including our Privacy Policy); misused the Program; engaged in physical, verbal, or written abuse or harassment of Simmer Coffee personnel; been refused service at any of our locations; or that your use of theSimmer Coffee App or your Program account is unauthorized, deceptive, fraudulent, or otherwise unlawful. We further reserve the right to terminate your Program account if for any reason we decide to discontinue or cancel the Simmer Coffee Program.

TEXT MESSAGING

Simmer Coffee is offering a Short Code Messaging Program (the “Program”), which you agree to use and participate in subject to this section’s terms. By opting into or participating in the Program, you accept and agree to the Terms, including, without limitation, this section. Any term identified in this section is limited to the Program and is not intended to modify the other Terms and any privacy policy that governs the relationship between you and Simmer Coffee.

Without limiting the scope of the Program, users that opt into the Program understand and consent to receive from Simmer Coffee recurring text messages (“SMS” and “MMS”) concerning Simmer Coffee products and offers from an automated system at the phone number you provided (“Text Messages”). While you consent to receive Text Messages sent using an automated system, nothing in this section shall be interpreted to suggest or imply that any or all of Simmer Coffee Text Messages are sent using an “automatic telephone dialing system,” or “autodialer, as that term is defined by the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), or its implementing regulations or any similar term as defined under a state-law equivalent to the TCPA.

Message and data rates may apply. Depending on your text plan, you may be charged by your carrier. You further understand that you are not required to opt into the Program (directly or indirectly) as a condition of purchasing any property, goods, or services from Simmer Coffee. Additional Text Messages may be sent periodically based on your interaction with Simmer Coffee.

If you wish to opt out of the Program or no longer agree to the terms in this section, you agree to reply “STOP,” “QUIT,” “END,” CANCEL,” or “UNSUBSCRIBE” to any Text Message from Simmer Coffee or by contacting feedback@dutchbros.com. If you opt out, you will receive one (1) final Text Message from Simmer Coffee confirming your decision to opt out. After this, you will no longer receive Text Messages from Simmer Coffee. If you want to join again, just sign up as you did the first time and we will start sending Text Messages to you again. You understand and agree that any other method of opting out not defined herein, 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.

If at any time you intend to stop using the phone number used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will opt out of the Program prior to ending your use of the phone number. You understand and agree that your agreement to do so is a material part of this section’s terms. You further agree that, if you discontinue the use of your phone number without notifying Simmer Coffee of such change via the above-defined process, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Simmer Coffee, or any party that assists in the delivery of the Text Messages Simmer Coffee sends, as a result of claims brought by the individual(s) who is later assigned that phone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of Simmer Coffee Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD SIMMER COFFEE, SIMMER COFFEE AGENTS, AND ANY THIRD-PARTY SERVICE PROVIDER WE USE TO SEND MESSAGES HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING, BUT NOT LIMITED TO, 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 SIMMER COFFEE ATTEMPTING TO CONTACT YOU AT THE PHONE NUMBER YOU PROVIDED.

Participating Carriers include AT&T, Verizon Wireless, Sprint, Virgin, T-Mobile, US Cellular, Cricket (Leap), MetroPCS, C Spire, Carolina West Wireless (CWW), CellCom, and Bandwidth. Text Messages sent via SMS and MMS may not be delivered to you if your phone is not in the range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within coverage, factors beyond the control of Verizon and T-Mobile/MetroPCS may interfere with messages delivery for which the carrier is not responsible.

GIFT CARDS

By purchasing or using a Simmer Coffee Gift Card (“Simmer Card”) you are agreeing to these Terms and any terms and conditions on the back of each card or associated terms set by the card provider. Simmer Cards can only be used to make purchases at participating Simmer Coffee outlets and through certain features of our Services, including, but not limited to, the Simmer Coffee App. No expiration date, service fee, dormancy fee, maintenance fee, or any other type of fee apply for use of the Simmer Card. Simmer Card value may not be redeemed for cash, check or credit, unless required by law. Simmer Coffee is not responsible for any temporary inability to access funds on your Simmer Card. Simmer Cards may not be resold by any unauthorized party. Unauthorized resale or attempted resale is grounds for cancellation. Simmer Cards obtained through unauthorized channels will be considered void, and no refunds or reimbursements will be offered. Simmer Cards may not be purchased with Simmer Coffee App stored value.

Refunds and Replacements. All sales of Simmer Cards are final. Simmer Coffee is not responsible if your Simmer Card is lost or stolen.

Simmer Card Balance. Visit the website to check the balance on your Card.

REPRESENTATIONS AND WARRANTIES

You affirm, represent and warrant the following: (i) you are over the age of 18 and have the right and authority to enter into this agreement, and are fully able and competent to satisfy the terms, conditions and obligations herein or, if between the ages of 13 and 18 you have parent or legal guardian who agrees to be bound by these terms; (ii) you have obtained all consents, and possess all copyright, patent, trademark, trade secret and any other proprietary rights, or the necessary licenses thereto, for any content you’ve provided to the Services; (iii) if necessary you have the written consent of each and every identifiable natural person to use such persons name or likeness in the manner contemplated by the Services and these Terms, and each such person has released you from any liability that may arise in relation to such use; (iv) you have read, understood, agree with, and will abide by the terms and conditions of this agreement; (v) Simmer Coffee use of any information you have submitted as contemplated by the Terms will not infringe any rights of any third party, including but not limited to any intellectual property rights, privacy rights and rights of publicity (vi) you have not and will not engage in any of the prohibited activities or behaviors listed in the User Obligations section in the production of, your appearance in, or contribution(s) to your submissions to us or the Services; and (vii) your submissions to us or the Services do not contain: (a) material falsehoods or misrepresentations that could harm Simmer Coffee or any third party; (b) content that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing or encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; (c) advertisements or solicitations of business; or (d) impersonations of third parties, other than those which are readily apparent.

DISPUTE RESOLUTION

DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

Please read the following Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) carefully. It affects your rights.

Please read this Provision carefully. It provides that, except as specified in this Provision, all Disputes (as defined below) between you and Simmer Coffee shall be resolved by binding arbitration. Arbitration is a form of private dispute resolution and replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).

For purposes of this Provision, “Simmer Coffee” means its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Simmer Coffee regarding, arising out of or relating to any aspect of your relationship with Simmer Coffee, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Simmer Coffee licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

YOU AND SIMMER COFFEE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution
You agree that whenever you have a Dispute with Simmer Coffee you will first send a written notice to Simmer Coffee (“Demand”). You agree that the requirements of this Pre-Arbitration Claim Resolution section will apply even to disagreements that may have arisen before you accepted these Terms. You must send the Demand to the following address (the “Notice Address”): Simmer Coffee, Attn: Legal Department, 726 Slash Pine Drive, Cary, NC 27519. The Demand must seek to resolve only your individual Dispute and must be personally signed by you (and not your counsel). Within twenty (20) business days of receipt of a Demand, the recipient may request an individualized video or telephone conference which both parties will personally attend (with counsel, if represented). You agree that you will not take any legal action, including filing a lawsuit or demanding arbitration, until after the period to request a conference expires or, if a conference is requested, 20 business days after the individualized conference. Compliance with this informal dispute resolution procedure section is mandatory and a condition precedent to initiating arbitration. This procedure is essential to providing each of us a meaningful opportunity to resolve disputes informally. Any applicable limitations periods and filing fee deadlines will be tolled while the parties engage in the process set forth above. A court of competent jurisdiction may enjoin the filing or prosecution of an arbitration if these requirements have not been met.

Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Simmer Coffee may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Simmer Coffee, Attn: Legal Department, 1726 Slash Pine Drive, Cary, NC 27519. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Simmer Coffee through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Simmer Coffee. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures
If this Provision applies and if the disagreement stated in the Demand is not resolved to your satisfaction within ten (10) business days after the conference described above (or within ten (10) business days after the time when such a conference may be requested if no conference has been requested), and you intend on taking legal action, you agree that you will file a demand for arbitration with the American Arbitration Association (the “Arbitrator”). The arbitration will be conducted before a single arbitrator with the AAA under its rules, including the AAA’s Consumer Arbitration Rules available at www.adr.org or 1-800-778-7879. This Provision governs in the event it conflicts with the applicable arbitration rules.

Because the Platform and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or Simmer Coffee may initiate arbitration in either Orange County, North Carolina or the federal judicial district that includes your billing address. However, if Simmer Coffee initiates the arbitration in Orange County, you shall have the right to have the arbitration transferred to the AAA office within the judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – Simmer Coffee will pay all arbitration filing fees and hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Simmer Coffee as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver
UNLESS BOTH YOU AND SIMMER COFFEE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION, ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION UNLESS THE MASS ARBITRATION PROVISIONS SET FORTH BELOW ARE TRIGGERED. NEITHER YOU NOR SIMMER COFFEE MAY ACT AS A PRIVATE ATTORNEY GENERAL OR CLASS REPRESENTATIVE, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY DISPUTE OR CLAIM. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

No Judge or Jury in Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms you and Simmer Coffee are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Simmer Coffee might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

Mass Arbitration
If, at any time, 25 or more claimants (including you) submit Demands or seek to file demands for arbitration raising similar claims against Simmer Coffee, and such circumstances meet the definition and criteria of Mass Filings (“Mass Filing”) set forth in National Arbitration & Mediation’s (“NAM”) Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules,” available at https://www.namadr.com/resources/rules-fees-forms/), you and Simmer Coffee agree that AAA shall not serve as Arbitrator and that instead NAM shall administer any Mass Filing claims and the NAM Mass Filing Rules in effect at the time such claim is filed shall apply as modified below. You agree that throughout this process, the parties' counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. You acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of your dispute might be delayed.

Stage One: Counsel for the claimants and counsel for Simmer Coffee shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Simmer Coffee will pay the mediator’s fee.

Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Simmer Coffee shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Simmer Coffee will pay the mediator’s fee.

Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Simmer Coffee shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.

If your Claim is not resolved as part of the staged process identified above, either:

Option One: You and we may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms of Use. You may opt out of arbitration by sending us your individual, personally signed notice of your intention to opt out by certified mail addressed to the Notice Address. Such an opt-out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. We may opt your claim out of arbitration by sending an individual, personally signed notice of our intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree to adjust these deadlines.

OR

Option Two: If neither you nor we elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims will be filed and proceed in individual arbitrations. Any remaining claims will not be filed or be deemed filed in arbitration, nor will any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator, as such term is used in the NAM Rules) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims. A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim will proceed in a court of competent jurisdiction consistent with these Terms of Use. You and we agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and we acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases. If any part of this Mass Arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the NAM rules, then the balance of this Mass Arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein unless the lack of such provision would lead this Mass Arbitration provision to fail of its essential purpose.

Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.

Continuation
This Provision shall survive the termination of your service with Simmer Coffee or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if Simmer Coffee makes any change to this Provision (other than a change to Dutch Bros.’ notice address), you may reject any such change and require Simmer Coffee to adhere to the present language in this Provision as of the day you entered into these Terms if a dispute between us arises.

DISCLAIMERS

YOUR USE OF THESE SERVICES IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON, THROUGH, OR IN CONNECTION WITH THE SERVICES OR OTHERWISE PROVIDED BY US ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FREEDOM FROM COMPUTER VIRUS, OR WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND OUR PRODUCTS AND SERVICES. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY INFORMATION, PRODUCTS, OR SERVICES WE PROVIDE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS OR RELIABILITY OF THE SERVICES OR ANY INFORMATION, PRODUCTS, OR SERVICES WE PROVIDE. THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES PROVIDED ON OR THROUGH THE SERVICES MAY BE OUT OF DATE, AND NEITHER SIMMER COFFEE NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, PRODUCTS, OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THESE SERVICES ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURES, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES LISTED OR PURCHASED ON OR THROUGH THIS SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY'S WEBSITE, MOBILE APPLICATION, PRODUCTS AND SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

LIMITATION OF LIABILITY. SIMMER COFFEE DOES NOT ASSUME ANY RESPONSIBILITY FOR, AND WILL NOT BE LIABLE FOR, ANY DAMAGE TO OR ANY VIRUS THAT MAY INFECT YOUR COMPUTER, EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THESE SERVICES, OR YOUR DOWNLOADING OF OR ACCESSING ANY MATERIALS FROM THE SERVICES. IN NO EVENT WILL SIMMER COFFEE, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THESE SERVICES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, ANY WEBSITES LINKED TO IN THE SERVICES, OR THE MATERIALS, INFORMATION, PRODUCTS OR SERVICES CONTAINED ON OR PROVIDED IN CONNECTION WITH THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT SIMMER COFFEE SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY CONTENT, PRODUCTS, OR SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES OR THE CONTENT, PRODUCTS, OR SERVICES. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO SEEK A RETURN AND REFUND FOR SUCH PRODUCTS OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE SERVICES. IN NO EVENT SHALL Simmer Coffee TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) TWENTY-FIVE DOLLARS (US $25.00) OR (B) THE VALUE OF YOUR PURCHASE ON THE SERVICES OR SUBSCRIPTION FOR THE LAST SIX (6) MONTHS.

FORCE MAJEURE. Simmer Coffee is not responsible for damages, delays, or failures in performance resulting from acts or occurrences beyond its reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

INDEMNITY. You agree to defend, indemnify, and hold harmless Simmer Coffee and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys' fees and litigation expenses) relating to or arising from any breach by you of these Terms.

GOVERNING LAW. Any claim arising out of or relating to the use of, these Services and the materials contained herein is governed by the laws of the State of North Carolina, without regard to its choice of law provisions. You consent to the exclusive jurisdiction of the state and federal courts located in Orange County, North Carolina. Any and all disputes directly or indirectly arising out of or related to the Terms or the Services will be resolved individually, without resort to any form of class actions. Any and all claims, judgments and awards will be limited to actual out-of-pocket costs incurred, and in no event shall you be entitled to recovery of attorney’s fees. Under no circumstances will any claimant be permitted to obtain any award for, and you hereby waive all rights to claim punitive, special, incidental or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than for actual out-of-pocket expenses. Any cause of action or claim you may have directly or indirectly arising out of or related to the Terms or the Services must be commenced within one (1) year after the claim or cause of action arises.

A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent as other business documents originally generated and maintained in printed form. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services.

TERM AND TERMINATION. These Terms and your right to use the Services will take effect at the moment you install, access, or use the Services. Moreover, any use of the Services other than as specifically authorized herein, without the prior written consent of Simmer Coffee, is strictly prohibited. Simmer Coffee reserves the right, without notice and its sole discretion, to terminate your right to use the Services and to block or prevent your future access to, and use of, the Services. The provisions concerning Simmer Coffee proprietary rights, feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of the Terms for any reason. Simmer Coffee retains has the right to change or discontinue the Services or any feature of the Services at any time.

SEVERABILITY. If any provision (or part thereof) contained in these Terms is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language.

MISCELLANEOUS. No joint venture, partnership, employment, or agency relationship exists between you and Simmer Coffee as result of these Terms or your utilization of the Services. Headings herein are for convenience only. These Terms, along with our Privacy Policy, represents the entire agreement between you and Simmer Coffee with respect to use of the Services, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and Simmer Coffee with respect to the Services.

APPLE DISCLAIMER. The following applies to any part of the Services you acquire from an electronic store branded, owned, or controlled by Apple or any affiliate of Apple (“App Store-Sourced Software”):

You acknowledge and agree that these Terms are solely between you and Simmer Coffee, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Simmer Coffee as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Simmer Coffee as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and Simmer Coffee acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.

CONTACT US. Please feel free to contact us with any comments, questions or suggestions you might have regarding the information described in the Services. All rights not granted herein are expressly reserved to Simmer Coffee.