Terms of Use

Terms of Use

Last Modified: November 2023


PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING OR PLACING AN ORDER TO PURCHASE PRODUCTS THROUGH THIS WEBSITE.

 

These Terms of Use are entered into by and between you and McKee Foods Corporation and its subsidiaries and affiliates (“McKee Foods,” “we,” or “us”). These Terms of Use and the Privacy Policy (https://www.mckeefoods.com/privacy-policy) contain important information about your use of this website, including any content, functionality and services offered on or through this website (the “Site”) and the sale of products via the Site, including snack products, apparel and other merchandise (“Products”). By using the Site, including by placing an order to purchase Products through the Site, you signify your acceptance of these Terms of Use and the Privacy Policy, which is incorporated herein by reference (together the “Terms of Use”) and describes collection, use and disclosure of your information in connection with the Site. If you do not agree to all of the Terms of Use, please do not use this Site.


IMPORTANT: THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN A JURY OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND. THE ARBITRATION AGREEMENT IS SET FORTH IN THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW. BY AGREEING TO THESE TERMS OF USE YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THESE TERMS OF USE AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

 

McKee Foods may revise these Terms of Use at any time without prior individual notice. Your continued use of this Site, including placing any orders to purchase Products through the Site, after such revised Terms of Use are posted will mean that you accept those changes. Each time you use the Site and prior to placing any orders for Products through the Site, you should check this page for updates to these Terms of Use. You can determine when these Terms of Use were last updated by referring to the “Last Modified” legend at the top of these Terms of Use.


The information presented on or through the Site is made available solely for general information purposes. McKee Foods does not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. You agree that you will comply with all applicable laws and regulations in connection with your use of the Site.


No part of the Site is intended for use by persons under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER.


Use Restrictions

All content on this Site, such as text, graphics, images, photographs, illustrations, music, sounds, videos, trademarks, trade names, service marks, logos, data, software, scripts, tags, information, and other materials (“Contents”) are the intellectual property of McKee Foods, its affiliates or their licensors. Such Contents are protected by United States and foreign intellectual property laws and treaties. Title to the Contents remains with McKee Foods or their applicable owners.


Any use of the Contents not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. Except as stated herein, none of the Contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted, transmitted, modified, translated, compiled, or used to prepare derivative works in any form or by any means without the prior written permission of McKee Foods or its licensors. McKee Foods authorizes you to view and download a single copy of the Contents solely for your own lawful, personal, non-commercial use if you do not modify or alter the Content in any way and you retain all copyright and proprietary rights notices in the Contents. The Site may include additional terms and conditions applicable to the Contents and any such terms and conditions are incorporated into these Terms of Use by reference. The use of the Contents on any other site or in a networked computer environment for any purpose is prohibited. All rights not expressly granted herein are reserved to McKee Foods and its affiliates and their licensors.


You may not:

  • Copy, reproduce, distribute, publish, download, display, perform, post, or transmit any Content in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as set forth in these Terms of Use;
  • “mirror” any Contents contained in this Site or any other server, without McKee Foods’ written permission;
  • frame or link to the Site, except as set forth in these Terms of Use;
  • conduct fraudulent activities on the Site;
  • use data mining, robots, or other data gathering devices on or through the Site;
  • post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity on the Site;
  • disclose personal information about another person or harass, abuse, or post objectionable material on the Site;
  • use the Site for any purpose that is unlawful or prohibited by these Terms of Use;
  • attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, user accounts, or the technology and equipment supporting the Site;
  • use the Site in any manner that could damage, disable, overburden, or impair the Site, or interfere with any other party’s use and enjoyment of the Site;
  • attempt to gain unauthorized access to the Site through hacking, password mining or any other means.


McKee Foods reserves the right, in its sole discretion, to terminate access to the Site, or any portion thereof, at any time, for any reason or for no reason at all, without notice.


User Submissions

The information you submit when you visit this Site is governed by the Privacy Policy. To the extent there is an inconsistency between the Terms of Use and the Privacy Policy, the Privacy Policy shall govern.


Except as provided under Submission of Ideas (below), McKee Foods does not claim ownership of any information or material a user provides to McKee Foods or posts, uploads, input, submits, or transmits to this Site (“Submission”).


You agree that you will not make any Submission that is, in whole or in part: libelous; scandalous; inflammatory; discriminatory; defamatory; false; threatening; vulgar; obscene; pornographic; profane; abusive; harassing; invasive of another’s privacy; hateful or bashing; discriminatory with respect to gender, race, color, sexual orientation, national origin, religious views, or disability; in violation of local, state, national, or international law; or that infringes on, or violates, any right of any party, including any intellectual property right or right of publicity. Additionally, you agree that you will not: (a) make any Submission that is an advertisement or solicitation of business; (b) post a chain letter or pyramid scheme; (c) impersonate another person; (d) distribute viruses or other harmful computer code; (e) harvest or otherwise collect information about others, including email addresses, without their consent; (f) transmit the same Submission more than once or engage in “spamming”; or (g) engage in any other conduct that restricts or inhibits any other person from using or enjoying the Site, or which, in the judgment of McKee Foods, exposes McKee Foods or any of its affiliates, licensors, partners, or customers to any liability or detriment of any type.


By making a Submission, you agree that such Submission is nonconfidential, nonproprietary, and may be disseminated or used by McKee Foods for any purpose. You also hereby grant all other users of the Site an unrestricted, perpetual, royalty-free, fully paid up license to access and view your Submission as permitted by the functionality of the Site. If you make a Submission, you automatically grant—or warrant that the owner of such content has expressly granted—McKee Foods and its affiliates a royalty-free, perpetual, irrevocable, worldwide nonexclusive, transferable, sublicensable license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, publicly perform, and publicly display the Submission and to use, display, and publish your name, photograph, likeness, voice, performance, biographical information and/or statements, in each case in any media, or any form, format, or forum now known or hereafter developed. You also waive all moral rights in and to the Submission in favor of McKee Foods. You represent and warrant that: (a) you own or otherwise control all the rights to the Submission and use of the Submission by McKee Foods will not require McKee Foods to obtain any license from or make any payments or provide other compensation to any third party; (b) the Submission’s content is true, complete, and accurate; and (c) use of the Submission will not cause injury to any person or entity. You agree that you will indemnify McKee Foods for all claims resulting from the Submission or McKee Foods’ use thereof. Notwithstanding the foregoing, McKee Foods is not required to use any Submission.


You are solely responsible for your Submission, the consequences of making a Submission, and your reliance on any Submission from any other user. McKee Foods is not responsible for any content in Submissions or the consequences of any Submission. McKee Foods is not responsible for pre-screening, monitoring or editing Submissions. However, McKee Foods reserves the right to remove Submissions at any time. For example, if notified by a user of a Submission allegedly in violation of these Terms of Use, McKee Foods may investigate the allegation and determine in its sole discretion whether to remove such Submission and take other action deemed appropriate, including terminating a user’s access to any or all parts of the Site, or cancelling his/her account. McKee Foods also reserves the right to monitor, edit, disclose, or delete any Submission, regardless of whether such Submission violates these Terms of Use. McKee Foods will have no liability or responsibility to users for performance or nonperformance of such activities.


Submission of Ideas

McKee Foods’ policy is to not accept or review unsolicited ideas or suggestions from persons outside the company. Notwithstanding such policy, any ideas, suggestions, know-how, or concepts that are offered or communicated to McKee Foods through this Site or otherwise (“Ideas”) shall be the property of McKee Foods and may be treated by McKee Foods as nonconfidential information. If you submit any Ideas to McKee Foods, then you hereby assign to McKee Foods all right, title and interest in and to such Ideas and McKee Foods shall have the unrestricted right (but no obligation) to use and disclose such Ideas for any purpose without compensation or obligation to you or any party.


User Account.

The Site may include functionality that permits you to create an account by providing an email address and password. Your account is personal to you, and you should not share your account information with, or allow access to your account by, any third party. You are solely responsible for: (i) maintaining the security and confidentiality of your account and your account username and password; (ii) using reasonable efforts to prevent unauthorized access to or use of your account; and (iii) keeping the email address associated with your account current. You are solely responsible and liable for all activities that occur under your account, including, without limitation, purchases of Products through the Site.


If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify McKee Foods by emailing us at privacy@mckee.com. You will be solely responsible for the losses incurred by McKee Foods and others due to any unauthorized use of your account. We reserve the right to disable any user account at any time, for any reason. You agree that we shall not be liable to you or any third party for any termination of your account or access to the Site. You represent and warrant that the information you provide to McKee Foods upon creating an account on the Site, and at all other times, will be true, accurate, current, and complete.


Electronic Communication

By registering for an account or otherwise providing us your email address and/or phone number, you consent to receive communications from us electronically by email and/or phone (including SMS, MMS, or other text message notifications (“Text Messages”) and notifications made using an automatic telephone dialing system), respectively. You agree that all notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.


You may be presented with the option to receive Text Messages from us and on our behalf. By consenting to receive Text Messages sent directly to your mobile phone, the following terms apply:


Message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence, according to your individual rate plan provided by your wireless carrier. Please consult your wireless carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will McKee Foods or its affiliates or their service providers be responsible for any Text Messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit text alerts, you may not receive the Text Messages from us. You can opt-out of receiving any further Text Messages from us by replying “STOP” to any Text Message you receive from us.


We will not be liable for any delays in the receipt of any Text Messages, as delivery is subject to effective transmission from your network operator. Text Message services are provided on an “as is” and “as available” basis. Data obtained from you in connection with Text Message services may include your cell phone number, your wireless carrier’s name, and the date, time, and content of your messages. We may use this information to contact you and to provide the services you request from us. You also agree to notify us if your telephone number changes. Your receipt of Text Messages is subject to termination in the event that your mobile telephone service terminates or lapses. For more information on how we use telephone numbers, please view our Privacy Policy.


Promotions and Discount Codes

All offers or promotions, including sweepstakes, contests, raffles, or giveaways, advertised on this Site (collectively “Promotions”) are void where prohibited, and are subject to the posting of any official rules to such Promotions. If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will apply.


McKee Foods may make available discount or special offer codes (collectively, “Discount Codes”). Discount Codes are redeemable toward purchases of Products on the Site, while supplies last, and subject to certain exclusions or any other restrictions as may be determined and communicated by McKee Foods in its sole discretion. Discount Codes cannot be applied to previously placed orders. Only valid Discount Codes posted on the Site or otherwise provided, promoted or authorized by McKee Foods will be honored at checkout. Codes supplied or promoted by third parties that are not authorized by McKee Foods will not be considered valid. Your actual or attempted use of any Discount Codes in a manner which violates these Terms of Use or any other restrictions with respect to such Discount Codes as may be communicated by McKee Foods may result in cancellation of orders, suspension or revocation of Site access, suspension or termination of your user account, and/or any other corrective action we deem necessary. Discount Codes are non-transferable, valid for one-time use only, and may not be combined with other offers. Except as otherwise provided, Discount Codes cannot be used toward shipping, packaging, or applicable fees or taxes. Discount Codes must be entered in the appropriate “discount code” field at checkout. McKee Foods is not responsible for lost, stolen or corrupted Discount Codes or any unauthorized use of Discount Codes. Discount Codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits are allowed. The dollar value of any Discount Code will not be refunded or credited back if any or all of the merchandise purchased in connection with such Discount Code is returned. Expiry dates may apply to each Discount Code. Discount Codes are void if copied, transferred, sold, exchanged or expired, or otherwise where prohibited. Requests not complying with all Discount Code requirements will not be honored. McKee Foods reserves the right to modify or cancel the availability of Discount Codes at any time.


Purchase of Products

Some portions of the Site may make available Products for purchase. Any purchase of Products from the Site is subject to the sales and shipping terms set forth in these Terms of Use and otherwise posted on the Site. Note that purchases may be processed and fulfilled by third-party vendors.


Products available on the Site are not intended for resale. All orders of Products must be for personal, non-commercial use only.

 

McKee Foods reserves the right, in our sole discretion, to take steps to verify your identity to process your order. Further, McKee Foods reserves the right, in our sole discretion, to refuse to accept, choose not to process, or to cancel any order you place with us for any reason, including when we have reason to suspect a violation of these Terms of Use. We also reserve the right, in our sole discretion, to limit quantities of Products purchased per account, per payment card, or per order. This may occur, for example, when the Product you wish to purchase is out of stock or has been mispriced, or in other circumstances we deem appropriate in our sole discretion. In the event McKee Foods makes a change to or cancel an order, we will attempt to notify you by contacting the email address provided at the time the order was placed or associated with your user account.

 

The Site describes and provides pricing for Products available for purchase, and may provide information regarding the availability of Products. The Product prices displayed do not include taxes or shipping costs. Any applicable taxes and shipping costs will be displayed on the checkout page before you place an order. Product price and availability information is subject to change without notice. McKee Foods cannot guarantee that a Product listed as in stock when you place an order will actually be in stock when we attempt to process the order. If McKee Foods determines that a Product you ordered is no longer available, the item will be cancelled from your order and McKee Foods will attempt to notify you by contacting the email address provided at the time the order was placed or associated with your user account.


McKee Foods attempts to provide accurate descriptions of Products on the Site, however, McKee Foods does not warrant or guarantee that the descriptions of Products are accurate, complete, reliable, current or error-free. If a Product offered on the Site is not as described, your sole remedy is to return the Product, as specified in the applicable Return or Refunds policy on the Site.

Without limiting the foregoing, McKee Foods reserves the right, in our sole discretion, to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, or omissions; and (iii) make changes to prices, Contents, Promotions, Discount Codes, or other offers, Product descriptions or specifications, or other information on the Site or with respect to Products without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped, or received), except as prohibited by applicable law.


Payments

McKee Foods uses third parties to process payments and our third-party payment processors (“Payment Processors”) accept payments through various payment cards and methods as detailed on the applicable checkout screen. By placing orders to purchase Products on the Site, you agree to comply with the relevant terms and conditions of our Payment Processors.


You must provide current, complete, and accurate payment information in order to complete a purchase on the Site. By providing payment information, you consent to the processing of such information as described in our Privacy Policy. YOU HEREBY REPRESENT AND WARRANT THAT (I) THE CREDIT CARD, DEBIT CARD OR BANK OR OTHER PAYMENT ACCOUNT INFORMATION SUPPLIED TO MCKEE FOODS IS TRUE, CORRECT AND COMPLETE, (II) AMOUNTS DUE FROM YOU WILL BE HONORED BY YOUR BANK OR CREDIT CARD COMPANY, AND (III) YOU SHALL PAY FOR ALL YOUR PURCHASES ON THE SITE AT THE PRICES IN EFFECT ON THE SITE AT THE TIME INCURRED (SUBJECT TO MCKEE FOODS’ RIGHT TO CORRECT INACCURATE INFORMATION ON THE SITE).


All prices on the Site are stated in U.S. dollars, and any monetary transactions related to the Site and Products will take place in U.S. dollars. You are solely responsible for any fees or charges you may incur with respect to currency conversion, if applicable.


Store Credit

We may issue store credits on case-by-case basis in our sole discretion. If issued, store credits will not expire and may be used toward the purchase of any Products sold on the Site. Store credits are not redeemable for cash. Refunds for orders paid for with store credit will be applied as store credit back to the same account from which the purchase was made. If you are granted a refund for an order paid for with multiple methods of payment, any refund is first applied to the payment method (card or account) up to the original amount charged, and the remainder will be applied as store credit to your user account.


Shipping

The shipping for all Products purchased through the Site shall be governed by the applicable Shipping Policy on the Site. From time to time, the Site may display certain shipping-related promotions or offers, such as free shipping and/or returns. Please note that such promotions and offers are subject to the terms and conditions set forth in the “Promotions” and/or “Discount Codes” sections of these Terms of Use, in addition to any other terms and conditions that are provided when such promotions and/or offers are available on the Site. In all instances, any shipping promotions and offers are valid only within the continental United States.


Dealings with Advertisers and Other Third Parties

Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Site, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that McKee Foods shall not be liable for any loss or damage of any kind incurred as a result of any such dealings.


Links and External Materials

The Site or users of the Site may provide links to other websites or resources. You acknowledge and agree that McKee Foods does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). These sites are subject to different terms of use and privacy policies, which you are responsible for reviewing. You further acknowledge and agree that McKee shall not be liable for any damage or loss caused by or resulting from use of or reliance on any External Materials.


Linking to the Site

You may post links to the Site and/or Products on social media pages provided you do so in a way that, as determined in our sole discretion, does not violate these Terms of Use, is fair and legal, and does not or is not likely to adversely affect our reputation. You must not, however, post links to the Site in such a way as to suggest any form of association, approval, or endorsement on our part without our consent. We reserve the right to withdraw permission for you to post links to the Site at any time and in our sole discretion.

 

Spokespersons

From time to time, we may engage spokespeople, influencers, bloggers, brand ambassadors or other individuals or entities who have been compensated or incentivized to speak or post about our brands (“Spokespersons”), including on social media channels and platforms. Although such Spokespersons may be compensated or incentivized by McKee Foods, we neither endorse nor are responsible for any opinion, advice, information, or statements made by any third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who provide them and may not reflect the opinions of McKee Foods. Spokespersons are required to clearly and conspicuously disclose any material connections to McKee Foods in all communications concerning McKee Foods or the Products, and, except to the extent prohibited by applicable law, we disclaim any liability with respect to any Spokesperson’s failure to do so.


Modifications to the Site

McKee Foods reserves the right at any time to modify or discontinue, temporarily or permanently, the Site (or any portion thereof) with or without notice. You agree that McKee Foods shall not be liable to you or any third party for any modification, suspension or discontinuance of the Site (or any portion thereof).


Indemnification

You agree to indemnify and hold McKee Foods, its agents, affiliates, parent and subsidiary companies, partners, licensors, contractors, unaffiliated third parties, and all of its and their respective officers, directors, owners and employees (collectively, “Releasees”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of your: (a) access to or use of the Site; (b) violation of the Terms of Use or any law or regulation; or (c) infringement or violation of any rights of another party (including intellectual property rights or rights of publicity).


DISCLAIMER OF WARRANTIES

The use of the Site or the Contents is at your own risk. The Contents in this Site could include technical inaccuracies or typographical errors. McKee Foods may make changes or improvements at any time.

THE SITE AND THE CONTENTS AND PRODUCTS AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MCKEE FOODS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.


MCKEE FOODS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MCKEE FOODS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE CONTENTS IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. MCKEE FOODS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE PRODUCTS LISTED ON THE SITE, THAT THE SITE OR PRODUCTS WILL MEET YOUR REQUIREMENTS, OR THE QUALITY OF ANY PRODUCTS AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS. YOU (AND NOT MCKEE FOODS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.


IF YOU ARE DISSATISFIED WITH ANY PRODUCT PURCHASED THROUGH THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO RETURN OR EXCHANGE THE PRODUCT SUBJECT TO AND IN ACCORDANCE WITH THE APPLICABLE SHIPPING AND RETURNS POLICY.


LIMITATION OF LIABILITY

YOU AGREE TO RELEASE THE RELEASEES FROM ANY AND ALL LIABILITY, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES FOR LOSS OF ANTICIPATED PROFITS OR REVENUE OR OTHER ECONOMIC LOSS THAT RESULTS OR ARISES FROM ANY USE OR INABILITY TO USE THE SITE, ITS CONTENTS OR ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE, OR THAT RESULTS OR ARISES FROM ANY ACT OR OMISSION BY THE RELEASEES IN FULFILLMENT OF OR IN BREACH OF THESE TERMS OF USE OR THE PRIVACY POLICY. IN NO EVENT SHALL THE RELEASEES’ TOTAL LIABILITY TO YOU FOR ALL DISPUTES ARISING FROM OR RELATING TO THE TERMS OF USE OR YOUR ACCESS TO OR USE OF THE SITE OR CONTENTS EXCEED THE GREATER OF US$50 OR THE AMOUNT (IF ANY) PAID DIRECTLY BY YOU TO MCKEE FOODS FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF YOUR CLAIM.


APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES SET FORTH HEREIN, SO, TO THE EXTENT PROVIDED BY APPLICABLE LAW, THE LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES SET FORTH HEREIN MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN.

 

EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN YOU AND MCKEE FOODS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MCKEE FOODS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


Governing Law

The Terms of Use shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Terms of Use.


BINDING ARBITRATION AND CLASS ACTION WAIVER

SUBJECT TO THE TERMS AND CONDITIONS UNDER THE SUBSECTION “PROCESS” BELOW, ANY DISPUTE ARISING IN CONNECTION WITH THESE TERMS OF USE OR ANY TRANSACTION CONTEMPLATED HEREIN SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT; PROVIDED, HOWEVER, THAT YOU HAVE THE RIGHT TO ASSERT CLAIMS IN SMALL CLAIMS COURT IN EITHER HAMILTON COUNTY, TENNESSEE OR IN YOUR COUNTY OF RESIDENCE, IF ALL REQUIREMENTS OF THE SMALL CLAIMS COURT, INCLUDING ANY LIMITATIONS ON JURISDICTION AND THE AMOUNT AT ISSUE IN THE CLAIM ARE SATISFIED. YOU AND MCKEE FOODS EMPOWER THE ARBITRATOR WITH THE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTE RELATING TO THE INTERPRETATION, APPLICABILITY OR ENFORCEABILITY OF THESE TERMS OF USE OR FORMATION OF THIS CONTRACT, INCLUDING THE ARBITRABILITY OF ANY DISPUTE AND ANY CLAIM THAT ALL OR ANY PART OF THESE TERMS OF USE ARE UNENFORCEABLE, VOID OR VOIDABLE OR RELATING TO THE SCOPE OF THESE TERMS OF USE. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.


“Dispute” as used in these Terms of Use, means any dispute, cause of action, controversy or claim arising out of, or relating in any way to, or in connection with, these Terms of Use, the subject matter of these Terms of Use, or your access to or use of the Site or purchase of any products or services through the Site, including, but not limited to contract, personal injury, tort, warranty, statute or regulation, or other equitable basis.


Any disagreement about whether a Dispute qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such disagreement, no arbitration shall proceed unless and until a decision is issued by the small claims court that the Dispute should proceed in arbitration.


No Class Arbitrations, Class Actions or Representative Actions.

YOU AND MCKEE FOODS EACH AGREE THAT ANY DISPUTE SHALL BE CONDUCTED AND RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, MASS OR REPRESENTATIVE ACTION, EXCEPT AS PROVIDED IN THE SECTION BELOW TITLED “BATCH ARBITRATION.” YOU AND MCKEE FOODS EACH AGREE THAT A DISPUTE CANNOT BE BROUGHT AS A CLASS, COLLECTIVE, CONSOLIDATED, MASS OR REPRESENTATIVE ACTION WHETHER INSIDE OR OUTISDE OF ARBITRATION, ON BEHALF OF ANY OTHER PERSON OR PERSONS. YOU AND MCKEE FOODS ALSO EXPRESSLY WAIVE THE RIGHT TO SEEK, RECOVER OR OBTAIN ANY NON-INDIVIDUAL RELIEF; PROVIDED, HOWEVER, THAT THIS WAIVER DOES NOT PREVENT YOU OR MCKEE FOODS FROM PARTICIPATING IN A CLASSWIDE, COLLECTIVE, MASS OR REPRESENTATIVE SETTLEMENT OF ANY DISPUTE.


Notwithstanding anything to the contrary herein, you and McKee Foods may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect intellectual property rights, whether in aid of, pending or independently of the resolution of any Dispute pursuant to the arbitration procedures set forth above.


Federal Arbitration Act

You and McKee Foods agree that these Terms of Use affect interstate commerce and that the enforceability of this Section “Binding Arbitration and Class Action Waiver” shall be governed by, construed, and enforced, both substantially and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) to the maximum extent permitted by applicable law.


Confidentiality

The arbitrator, McKee Foods, and you shall maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.


Process

For any Dispute that you have against McKee Foods, you agree to first contact McKee Foods and attempt in good faith to resolve the Dispute informally by delivering a written notice (“Notice”) to McKee Foods by certified mail at 10260 McKee Road, Collegedale, TN 37315, Attn: Vice President and General Counsel. The Notice must (a) include your name, address of residence, email address and/or telephone number associated with your account in the Site; (b) set out the nature of the Dispute; and (c) set out the specific relief requested. As part of this process, you and McKee Foods agree to meet via telephone or videoconference. If you and McKee Foods cannot reach an agreement to resolve the Dispute within sixty (60) days after such Notice is received by McKee Foods, unless an extension is mutually agreed upon by the parties, then either party has the right, as appropriate in accordance with the terms herein, to commence an arbitration proceeding or file a claim with the appropriate small claims court. Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing arbitration or action in small claims court, and the arbitrator or court shall dismiss any demand or action filed before completion of this process. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.


You and McKee Foods agree that any Dispute must be commenced or filed within one (1) year after such Dispute arose; otherwise, the Dispute is permanently barred.


In the event that you and McKee Foods cannot resolve a Dispute and you do not or are not able to pursue your claim through small claims court, including a determination by the small claims court that the Dispute must proceed in arbitration, you or McKee Foods shall promptly submit the Dispute to binding arbitration at the office of the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes (the “AAA Rules”). The AAA Rules are available at http://www.adr.org/. By entering into these Terms of Use, you either (1) acknowledge that you have read and understand the AAA Rules or (2) waive reading the AAA Rules and waive any claim that the AAA Rules are unfair in any way. You and McKee Foods agree that these Terms of Use govern the arbitration, and that the applicable AAA Rules shall be subject to changes in procedures that AAA may make from time to time.


The arbitration shall be conducted in the English language by a single independent and neutral arbitrator selected pursuant to the AAA Rules. In the event AAA declines or is unable to administer the arbitration, you and McKee Foods agree to use an arbitration forum or arbitrator that you and McKee Foods mutually agree upon. If, after making a reasonable effort, you and McKee Foods are not able to agree upon an arbitration forum or arbitrator, AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in Hamilton County, Tennessee or the county within the United States in which you reside. Judgment on the arbitral award may be entered in any court of competent jurisdiction.


Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. In some instances, the costs of arbitration can exceed the costs of litigation. Each party will have the right to use legal counsel in connection with arbitration at its own expense. You must pay AAA’s initial filing fee, but McKee Foods will reimburse you for the amount of this fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in state or federal court in your county of residence or in Hamilton County, Tennessee. If the arbitrator determines that the Dispute you are pursuing in arbitration, or the relief you are seeking in arbitration, was frivolous or brought for an improper purpose, then (a) McKee foods will not reimburse your initial filing fee and payment of fees will be governed by the AAA Rules; and (b) the arbitrator may award the reasonable legal fees and costs incurred by the other party.


As limited by the FAA, these Terms of Use, and the applicable AAA Rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided, however, that this power does not include the power to conduct a class, consolidated, collective or mass arbitration or a representative action, which is prohibited by these Terms of Use (except with respect to a Batch Arbitration, as provided in the Section immediately below). Except pursuant to the Batch Arbitration process described in the Section immediately below, the arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative, collective, consolidated, mass or class proceeding, or any proceeding on behalf of or involving more than one person or persons.

 

 

Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and McKee Foods agree that in the event that there are one hundred (100) or more individual Disputes of a substantially similar nature filed against McKee Foods by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (i) administer the arbitration demands in batches of 100 Disputes per batch (plus, to the extent there are less than 100 Disputes left over after the batching described above, a final batch consisting of the remaining requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

 

All parties agree that Disputes are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by McKee Foods.

 

You and McKee Foods agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for each batch of Disputes, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, representative, consolidated, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

 

Right to Opt-Out

You may opt out of this agreement to arbitrate. If you do so, neither you nor McKee Foods can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision, and must include your name and residence address, the email address you use in connection with the Site (if applicable), and a clear statement that you want to opt out of this arbitration agreement. Any requests to opt out must be sent to: 10260 McKee Road, Collegedale, TN 37315, Attn: Vice President and General Counsel.


Severability (Limitations on Certain Disputes) and Survival. If a court or arbitrator decides that any of this section’s limitations cannot be enforced as to a particular claim for relief or request for a remedy, then that claim or request for a remedy (and only that claim or request) must be severed from the arbitration and may be brought in court. In the event that the prohibition on class arbitration or other limitation is deemed invalid or unenforceable, then the remaining portions of this Section titled “Binding Arbitration and Class Action Waiver” will remain in force. This Section titled “Binding Arbitration and Class Action Waiver” shall survive termination of the Terms of Use and after you stop using the Site or Products.


PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe any Submission accessible on or from the Site infringes your copyright, you may request removal of those materials (or access thereto) from this Site by contacting McKee Foods (address identified below) and providing the following information:


  • Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
  • Identification of the Submission that you believe to be infringing and its location. Please describe the Submission and provide us with its URL or any other pertinent information that will allow us to locate the Submission.
  • Your name, address, telephone number, and (if available) email address.
  • A statement that you have a good faith belief that the complained-of use is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or authorized representative.
  • A signature or the electronic equivalent from the copyright holder or authorized representative.


Our address for copyright issues relating to this Site is as follows:

McKee Foods
10260 McKee Road
Collegedale, TN 37315
Attn: Vice President and General Counsel

Phone: 423/238-7111, Ext. 22257
Email: copyright@mckee.com


In an effort to protect the rights of copyright owners, McKee Foods maintains a policy for the termination, in appropriate circumstances, of users of this Site who are repeat infringers.


General

Except as expressly provided in a particular notice or disclaimer posted by or on behalf of McKee Foods on this Site, these Terms of Use, incorporating the Privacy Policy, constitute the entire agreement between you and McKee Foods with respect to the access to and use of the Site and Contents. The Terms of Use supersedes all prior or contemporaneous oral or written negotiations and agreements between you and McKee Foods with respect to such subject matter. The failure of McKee Foods to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the Terms of Use. You may not assign, delegate or transfer these Terms of Use or your rights or obligations hereunder in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate these Terms of Use and our rights and obligations without consent.


The Site is controlled and operated by McKee Foods from the United States, and is not intended to subject McKee Foods to the laws or jurisdiction of any state, country or territory other than that of the United States. McKee Foods makes no claims that the Contents are appropriate or available for use or may be downloaded outside of the United States of America. Access to the Contents by certain persons in certain countries may not be legal. If you access the Site or place orders for Products through the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.


Any provision that, by its terms, is intended to survive the expiration or termination of the Terms of Use shall survive such expiration or termination for any reason whatsoever including, but not limited to, Binding Arbitration and Class Action Waiver, Disclaimer of Warranties, Limitation of Liability, Indemnification, General, Use Restrictions, User Submissions, Submission of Ideas, Governing Law, Dealings with Advertisers and Other Third Parties, Links and External Materials and Modifications to the Site.

 

Notice to California Residents

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to privacy@mckee.com. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

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