Terms of Use

Last Updated August 28, 2018

These Terms of Use (“Terms”) apply to your access to and use of the websites and other services (collectively, the “Sites”) provided by Sugar Mountain Online, LLC ("Sugar Mountain") and to the ordering, receipt and use of products and other items made available for purchase through the Sites (collectively, “Products”).

PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 13, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 13.

BY ACCESSING OR USING THE SITES OR ORDERING, RECEIVING OR USING PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS REFERENCED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITES OR ORDER, RECEIVE OR USE ANY PRODUCTS.

These Terms do not alter in any way the terms or conditions of any other agreement you may have with us with respect to any products, services or otherwise.

Sugar Mountain may change or modify these Terms from time to time. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing a notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. Your continued use of the Sites after we provide such notice will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply when you access or use the Sites or order, receive or use any Products. If you do not agree to any revised Terms, you may not access or use the Sites or order, receive or use any Products.

1. Privacy

Please refer to our Privacy Policy [insert link] for information about how we collect, use and disclose information about you.

2. Eligibility

You must be at least 18 years of age to use the Sites. If you use the Sites on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent and warrant that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. By using the Sites, you represent and warrant that you (i) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, and (ii) have full power and authority to enter into these Terms and that, in so doing, you will not violate any other agreement to which you are a party.

3. User Accounts and Account Security

You may need to register for an account to access or use certain areas or features of the Sites. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

4. Terms of Sale

4.1 Pricing and Availability

All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. All of the Products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue offering certain Products without prior notice, even if you have already placed your order. All prices are subject to change without notice.

In the event that a Product you are interested in purchasing is not listed or cannot be added to your “Cart” on the Sites, it is not currently available for ordering. Please check back at a later time as our Product inventory is subject to change.

4.2 Payment and Billing Information

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order.

4.3 Shipping and Handling

You agree to pay any shipping and handling charges shown at the time you make a purchase through the Sites. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping of Products is handled by a third-party courier. Any shipping times shown on the Sites are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of any Product for export.

4.4 Deliveries

You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. Our perishable Products are packaged to be frozen or at cool temperatures upon delivery. We recommend that you plan for your delivery of any perishable Products so that you can ensure immediate and proper storage of such Products prior to consumption. If you are unable to receive delivery of your Products in person, the courier may leave your delivery at your door or in another delivery area at your delivery address.

To maintain the quality and integrity of the perishable Products you receive, we recommend that you read and follow all safe handling instructions for such Products that are included with or are found on the packaging label for such Products.

4.5 Returns and Exchanges

All purchases of perishable Products through the Sites are final, and we do not accept any returns or exchanges of any such Products.

If for any reason you are not satisfied with a non-perishable Product that you purchase through the Sites, please contact us at [email protected] and comply with the terms of our Return Policy [insert hyperlink] within the first thirty (30) days after your purchase. We will work with you to resolve your concerns and may, in our discretion, provide a refund or exchange. This is not a warranty or a guarantee, however, and we reserve the right to decline to provide any remedy.

Additional information and instructions regarding how to seek a return or an exchange of a non-perishable Product that you purchase through the Sites can be found in our Return Policy [insert hyperlink]. Please note that, if you do not comply with any of the terms of our Return Policy [insert hyperlink], we reserve the right to refuse your return or exchange, or to impose different or additional conditions.

If you have any concerns regarding a Product sold by Sugar Mountain or believe that any Product sold by Sugar Mountain has a condition or defect that may make it unsafe, please report your safety concern immediately by emailing us at [email protected].

5. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using the Sites. You will not:

  • engage in any harassing, threatening, intimidating, predatory or stalking conduct;

  • use or attempt to use another user’s account without authorization from that user and Sugar Mountain;

  • impersonate, submit or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;

  • sell, resell or commercially use the Sites;

  • copy, reproduce, distribute, publicly perform or publicly display all or portions of the Sites, except as expressly permitted by us or our licensors;

  • modify the Sites, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Sites;

  • use the Sites other than for their intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;

  • reverse engineer any aspect of the Sites or do anything that might discover source code or that might bypass or circumvent measures employed to prevent or limit access to any part of the Sites;

  • use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Sites;

  • develop or use any applications that interact with the Sites without our prior written consent;

  • send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

  • bypass or ignore instructions contained in our robots.txt file; or

  • use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

Enforcement of this Section 5 is solely at Sugar Mountain’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Sites will not contain any content that is prohibited by such rules.

6. Ownership; Limited License

The Sites, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Sugar Mountain or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Sites are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Sites for your own personal, noncommercial use. Any use of the Sites other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted to you in this section and violate our intellectual property rights.

7. Trademarks

“Mishima Reserve,” “The Butcher’s Table,” “The Marrow,” the logos of Mishima Reserve, The Butcher’s Table, The Marrow and other Sugar Mountain affiliates, and all other Product and service names, logos and slogans of Mishima Reserve, The Butcher’s Table, The Marrow and other Sugar Mountain affiliates, and the look and feel of the Sites, are trademarks of Sugar Mountain or its affiliated companies and may not be copied, imitated or used, in whole or in part, without our prior written permission in each instance. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites are the property of their respective owners. Reference to any Products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Sugar Mountain.

8. Feedback

You may voluntarily post, submit or otherwise communicate to us questions, comments, suggestions, ideas, original or creative materials, or other information about Sugar Mountain or its affiliated companies, the Products or the Sites (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Sugar Mountain’s sole discretion. You understand that Sugar Mountain may treat Feedback as nonconfidential.

9. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Sites (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the applicable third party. Sugar Mountain does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content. Your access to and use of Third-Party Content is at your own risk.

10. Disclaimers; Indemnification

Your use of the Sites is at your sole risk, and you are solely responsible for, and assume all risks related to, the proper and safe handling, preparation, storage, cooking, use and consumption of the Products you purchase from Sugar Mountain.

We attempt to display the Products and other content on the Sites as accurately as possible. However, we do not guarantee the accuracy of any such content. In the event of an error on the Sites, in an order confirmation, in processing an order, in delivering a Product or otherwise, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the order and refund any amounts charged. You acknowledge that the Products you receive may vary from the Products and other content displayed on the Sites due to various factors. In addition, the Sites may contain information about Products that are not available in every location, and the display of Products on the Sites does not imply or guarantee that it is or will be available in your location or at the time of your order.

Except as otherwise provided in a writing by us, all Products, the Sites, and content on the Sites are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Sugar Mountain does not represent or warrant that the Sites are accurate, complete, reliable, current or error-free. While Sugar Mountain attempts to make your use of the Sites safe, we cannot and do not represent or warrant that the Sites or our servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Sites.

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Sugar Mountain, its parent and affiliated companies, and each of their respective officers, directors, agents, partners and employees (individually and collectively, the “Sugar Mountain Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising from or related to (a) your access to or use of the Sites; (b) your Feedback; (c) your violation of these Terms; or (d) your conduct in connection with the Sites and the Products purchased through the Sites. You agree that the Sugar Mountain Parties will have control of the defense or settlement, at Sugar Mountain’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Sugar Mountain or the other Sugar Mountain Parties.

11. Limitation of Liability

To the fullest extent permitted by applicable law, Sugar Mountain and the other Sugar Mountain Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Sugar Mountain or the other Sugar Mountain Parties have been advised of the possibility of such damages.

The total liability of Sugar Mountain and the other Sugar Mountain Parties for any claim arising out of or relating to these Terms, the Sites or any order, receipt or use of Products purchased through the Sites, regardless of the form of the action, is limited to the amount of the Products you purchased through the Sites in the twelve (12) months preceding the applicable claim.

The limitations set forth in this section will not limit or exclude liability for personal injury, death or property damage directly caused by the order, receipt or use of Products purchased through the Sites or for the gross negligence, fraud or intentional, willful, malicious or reckless misconduct of Sugar Mountain or the other Sugar Mountain Parties.

12. Transfer and Processing Data

In order for us to provide the Sites and the Products, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

13. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Sugar Mountain and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and Sugar Mountain agree that any dispute arising out of or related to these Terms, the Sites or a Product is personal to you and Sugar Mountain and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes in which you or Sugar Mountain seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Sugar Mountain seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Sugar Mountain waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, the Sites or a Product resolved in court. Instead, for any dispute that you have against Sugar Mountain or relating in any way to the Sites or a Product, you agree to first contact Sugar Mountain and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Sugar Mountain by email at [email protected] with “Claim Resolution” in the subject line. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Sugar Mountain cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in King County, Washington or may be conducted telephonically or via video conference for disputes alleging damages less than S10,000, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and Sugar Mountain agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

The arbitrator, Sugar Mountain, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and Sugar Mountain agree that for any arbitration you initiate, you will pay the filing fee and Sugar Mountain will pay the remaining JAMS fees and costs. For any arbitration initiated by Sugar Mountain, Sugar Mountain will pay all JAMS fees and costs. You and Sugar Mountain agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms, the Sites or a Product must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Sugar Mountain will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by sending a written opt-out notice to Sugar Mountain by email at [email protected] with “Arbitration Opt-out” in the subject line. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.

If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.

14. Governing Law and Venue

Any dispute arising out of or related to these Terms, the Sites or a Product will be governed by and construed and enforced in accordance with the laws of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington.

15. Modifying and Terminating the Sites

We reserve the right to modify the Sites or to suspend or stop providing all or portions of the Sites at any time. You also have the right to stop using the Sites at any time. We are not responsible for any loss or harm related to your inability to access or use the Sites.

16. Interpretation

In these terms, the terms “including” and “include” will mean “including but not limited to” and references to a “Section” will mean a section of these Terms, unless otherwise expressly stated. All section titles in these Terms are for convenience only and have no legal or contractual effect.

17. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

18. Miscellaneous

The failure of Sugar Mountain to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.