Terms of Use & Purchase of Products

Welcome to AB Whisperer Inc.’s “Terms of Use & Purchase of Products” (hereinafter “Terms”). These Terms are important and affect your legal rights, so please read them carefully.

By accessing or using the website, mobile application (if available) and/or blogs (individually and collectively, “Services”) provided by or on behalf of Ab Whisperer Inc. or its subsidiaries or other affiliates (hereinafter, individually and collectively, “ABW”, “we”, “us”, or “our”) that link to these Terms, you agree to be bound by these Terms, including our Privacy Policy. Suppose you do not agree to these Terms. In that case, you may not access or use any of the Services, nor may you order, purchase, receive or use the meals, desserts, snacks, merchandise or other products available from us (hereinafter, individually and collectively, “Products”). These Terms are in addition to the terms or conditions of any other agreement you may have with us regarding the use of Services and order, purchase, receipt and use of Products.

If you are using Services on behalf of another (person or entity), you represent and warrant that you are authorized to accept these Terms on such other’s behalf and that you and such other are responsible to us if you violate these Terms.

We reserve the right to change or modify these Terms at any time, in our sole and exclusive discretion. If we change these Terms, we will provide notice of such changes by updating the “Last Updated” date at the beginning of these Terms or by email to you, as we elect. The “Last Updated” date or the date of the email, whichever is earlier, is the effective date of the Terms set forth in this document, as they have been amended. By continuing to access or use Services, or order, purchase, receive or use Products, after such notice, you confirm your acceptance of the Terms then applicable, including all other terms and conditions of any other agreement you may have with us regarding the use of Services and order, purchase, receipt and use of Products. We encourage you to review the Terms frequently to ensure that you understand all terms and conditions that apply each time you access or use any of Services or order, purchase, receive or use Products. If you do not agree to the Terms, as revised, and such other terms and conditions of any written agreement between you and us, you may not access or use Services nor may you order, purchase, receive or use Products.

IMPORTANT NOTICE REGARDING ARBITRATION. WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTIONS) TO RESOLVE ANY DISPUTE BETWEEN YOU AND ABW THROUGH BINDING ARBITRATION RATHER THAN IN COURT; ACCORDINGLY, TO THE EXTENT PERMITTED BY LAW OR OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, YOU AGREE TO WAIVE AND HEREBY EXPRESSLY WAIVE YOUR RIGHT TO BRING ANY ACTION AGAINST US, ALONE OR WITH OTHERS, IN ANY MUNICIPAL, COUNTY, STATE OR FEDERAL COURT. PLEASE REVIEW CAREFULLY SECTION 14 “DISPUTE RESOLUTION”, BELOW, FOR DETAILS.

  1. Privacy Policy

Please refer to our Privacy Policy for additional information about how we collect, use and disclose information about you.

  1. Eligibility

Services are not targeted toward or intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the use of Services, or engaged in any activity that could result in suspension or removal from the use of Services, (d) do not have more than one Account (as defined below) with us, and (e) have full power and authority to enter into the agreements resulting from the use of Services and/or order, purchase, receipt and/or use of Products.

From time to time we test new features, functionalities or user interfaces that we are considering incorporating into Services, and from time to time we introduce new or different Products. We reserve the right to include or exclude you from these tests and/or introductions without notice.

  1. Registration, Account and Communication Preferences

To use our Services, and to order and purchase Products, you will need to register with ABW for an account, which account will include your name and current address, billing address, address for delivery of Products (if applicable), and other information we may request (an “Account”).  By creating an Account, you agree to (a) provide accurate, current and complete  information pertaining thereto, (b) maintain and promptly update, as necessary, your Account information, (c) maintain the security of your Account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use Services on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account.

By creating an Account, you also consent to receive electronic communications from or on behalf of ABW (e.g., via email, text messages, or by posting notices to the Services). These communications may include notices about your Account or Products order status (e.g., payment authorizations, password change matters, delivery updates and/or other transactional information), and these notices are part of your contractual relationship with us. You agree that any notices or other communications that we send to you electronically will satisfy any legal communication requirements including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via Services or email including, but not limited to, newsletters, Specials (as defined below), surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional communications at any time by following the unsubscribe instructions provided therein.

If you provide your mobile phone number, you are electing to receive text messages from us at such phone number, including automated text messages. Receiving text messages is optional and is not a condition for ordering and purchase. You can opt out of receiving any further text messages from us at any time by replying “STOP” to any text message you receive from us. If you elect to receive text messages, it is your responsibility to keep your Account information regarding your mobile phone number updated. Standard message and data rates applied by your mobile phone carrier may apply and are for your account (Please contact your mobile phone carrier for details.). You agree we are not liable for any delays in the receipt of or failure to deliver any such text messages, and text messages are provided on an “AS IS” basis. Be aware that data obtained from you in connection with your response to any text message may include your cell phone number, your provider’s name, and the date, time and content of your text messages (Any questions regarding privacy as to such information, please review our Privacy Policy.).

  1. Terms of Sale

4.1. Purchase of Products

We offer for purchase only the Products recited on the “Weekly Menu” window of our Services and then only for the period of time set forth therein, subject to the Terms and all other terms and conditions recited in the Weekly Menu window regarding order date and time restrictions, minimum Products purchase requirements, payment terms, and delivery terms (including areas in which we offer home delivery, delivery dates, delivery costs, and approximate delivery times).  We do not offer customized Products except, and then only, to the extent expressly set forth in the Weekly Menu window.

4.2. Pick-up and Delivery

Products ordered may be picked up by you at our facility located at 376 Hollywood Ave, Suite 107, Fairfield, NJ 07004 (“Facility”) and you will not incur a delivery charge for an order of Products picked up the Facility. You may pick up a Products order at our Facility on Sunday between 11:00am and 12:00pm, and/or on Wednesday between 12:00pm and 1:00pm or 5:30pm and 6:30pm. Because we are a small business with limited resources, there are no exceptions regarding pick up days and times.

Alternatively, Products ordered may be picked up by you at our partner gyms on the days and during the windows of time set forth in the FAQ section of this website. Pick up days and times are dictated by each partner gym, subject also to changes which may result from delays in Product order deliveries beyond our control (such as, for example, a snowstorm or delivery date change caused by an unforeseen event affecting Product preparation).

You are solely responsible for timely pick up of your orders. Orders not picked up by the immediately following scheduled pick up/delivery date will be disposed of and no credit or refund for the Products the subject of such order is available.

In certain areas of northern New Jersey, we offer delivery to your home for orders of Products which include at least five (5) meals selected from the current week’s Menu.  Please see the FAQ page of this website for locations that are eligible for home delivery. If you select home delivery (assuming eligibility therefore), you will incur a charge for delivery of Products to your home: THIS CHARGE IS IN ADDITION TO OUR PRICES FOR PRODUCTS. The current charge for delivery to your home is recited in the “Checkout” window and is added to each such order for home delivery at checkout.

We cook meals two days each week: Tuesday and Saturday. Products ordered for preparation on Tuesday of a given week are delivered, or available for pickup (see above for pickup times), on Wednesday of that week. Products ordered for preparation on Saturday of a given week are delivered, or available for pickup, the following day (Sunday). Deadlines for submitting orders of Products for a given preparation date are disclosed in the “Weekly Menu” window of this website and elsewhere.

4.3. Cancellation

YOU MAY MODIFY OR CANCEL AN ORDER FOR PRODUCTS CURRENTLY AVAILABLE TO YOU FOR PURCHASE AT ANY TIME PRIOR TO THE DEADLINE DATE AND TIME FOR ORDERING. PURCHASER MUST EMAIL ABW AT INFOABWHISPERER@GMAIL.COM PRIOR TO THE WINDOW CLOSING DATE/TIME WITH ANY REQUEST TO CHANGE/CANCEL AN ORDER AND ABW WILL, IN ITS SOLE AND EXCLUSIVE DISCRETION, DECIDE WHETHER AND, IF SO, THE EXTENT TO WHICH IT CAN ACCOMMODATE ANY SUCH REQUEST. ANY PURCHASE ORDER THAT HAS BEEN PROCESSED – THAT IS, AN ORDER WHICH IS NOT CANCELLED BEFORE THE DEADLINE DATE AND TIME APPLICABLE TO THAT ORDER – CANNOT BE CANCELLED AND YOU WILL NOT RECEIVE A REFUND OR CREDIT FOR THE PRODUCTS OF THAT ORDER NOR FOR OTHER APPLICABLE FEES (SUCH AS, FOR EXAMPLE, DELIVERY FEES).

4.4. Specials

ABW may offer you gift cards or special promotions (with associated codes) from time to time (individually and collectively, “Specials”). Accessing Specials in connection with an order of Products constitutes your express acceptance of not only these Terms but also all additional terms or conditions, including those associated with such Specials and, in the event of any conflict between these Terms and the terms and conditions recited in connection with such Specials, the terms and conditions of such Specials prevail, so please read them carefully.

Specials can be used only to order Products the subject of the Special and expire on the date associated therewith. Specials are particular to you and cannot be sold, transferred to another, or redeemed for cash. Unused value or portions of any Specials are not creditable to your account, nor may be used with any subsequent Specials of like or different kind, unless otherwise explicitly stated with the Specials.

Specials may not be combined with other like or different Specials unless otherwise explicitly stated. If we have reason to believe that any Specials are obtained, used or applied to an Account fraudulently, unlawfully or otherwise in violation of these Terms and/or the terms of the Specials, whether by you or another, we reserve the right to void the Specials, close your Account, and bill you for the value of such Specials.

If Specials are in the form of a gift card issued by us, the gift card is valid for 365 days or until the date on which the value recited on the card has been used by you (whichever date is sooner). If Specials are in the form of a discount code, the code is valid only for the period specified with the code or for the order(s) identified with the code. We do not apply activation fees, service charges, or dormancy fees with respect to gift cards.

4.5. Payment and Billing Information

Currently, we accept payment through Google Pay®, Apple Pay®, PayPal®, gift card issued by us, VISA® and MASTERCARD® bank issued debit cards, or any VISA®, MASTERCARD®, AMERICAN EXPRESS® or DISCOVER® gift or credit card.  As to all forms of acceptable payment used to order and purchase Products, 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 due in connection with your order of Products (including applicable taxes, service and convenience charges, and delivery fees). In connection with any order to purchase Products, we may ask you to supply additional information relevant to such payment method including, for example, the expiration date of the credit/debit/gift card, a security code associated with your payment method, and the postal address associated with the card. If the payment method cannot be verified by us at the time of an order, is invalid or is otherwise not acceptable, your order for Products will not be processed unless we, in our sole and exclusive discretion, elect otherwise. You must resolve with us any payment method problems before we proceed with your order and in every event before the deadline date and time pertaining to the order for Products the subject of the payment in question.

Payments are processed using a third party vendor employing, per the vendor, encryption technology in an effort to safeguard critical payment information.

With prior arrangement acceptable to us in our sole and exclusive discretion, we may agree to accept cash payment in connection with an order for Products picked up at our Facility. Further, in such event, payment of the exact amount due is required on pickup (we do not make change).

All payments from you to us are non-refundable and non-transferable except as expressly provided in these Terms.

4.6. Products Pricing and Availability

All prices of Products are shown in U.S. dollars as are all applicable taxes, service charges and fees. We reserve the right to adjust Products prices, service charges and fees as we may determine in our sole and exclusive discretion, at any time; provided, however, that if we change any of the foregoing, we will provide at least three (3) days advance notice thereof and such changes shall not affect any completed order of Products not yet delivered to you.

Because we are a small company, our ability to prepare Products is limited to orders totally twelve hundred (1200) meals, cumulatively, per Weekly Menu. Consequently, we may reach the limits of our ability to prepare Products. Unfortunately, regardless of the deadline for ordering Products from a given Weekly Menu offering, we cannot accept orders for Products once the cumulative maximum is reached. Therefore, we encourage you to place orders for Products as early as possible within the available date/time ordering window for a given Weekly Menu to ensure that we can meet your needs for that week.  Further, Products are always subject to availability of the provisions needed to prepare Products, and we reserve the right to impose quantity limits on any order for Products, to reject all or part of an order for Products, to discontinue offering certain of Products and to substitute Products (or ingredients thereof) without prior notice if we, in our sole and exclusive opinion, determine that we are unable to secure the provisions needed to prepare any of Products.

We strive to provide you with high quality Products.  Given the perishable nature of our Products or market conditions beyond our control, we may make ingredient substitutions from time to time. If you are not satisfied with a substitution made for any Products delivered to you, please contact us by visiting the Contact Us page at abwhisperer.com or via email at infoabwhisperer@gmail.com.

4.7. Taxes

We collect applicable sales tax on Products for which we determine we have a duty to collect. If an item is subject to tax, you agree that the amount of tax shown at checkout is accurate and it may be adjusted without notice to comply with current tax obligations imposed upon us regarding the sale of Products to you. Several factors may cause this, such as variances between our processing programs and current tax rates.  Adjustments, if any, occurring post order and applicable thereto will be billed to you as soon as possible after the variance is identified.

4.8. Inspection of Delivered Products

After preparation, consumable Products are refrigerated or packed with ice and/or frozen gel packs, until delivery. Unless you elect otherwise, consumable Products the subject of home delivery are packed in insulated, sealable, reusable bags dedicated to each customer. The current charge to you for insulated bags is $2.86/bag. This charge will be added to your first order for Products with us and then again if as necessary when a bag requires replacement due to, for example, the bag reaching the end of its useful life. Products delivered in such bags are also provided with at least one reusable, frozen gel pack, at no additional charge.  All consumable Products are maintained on ice beds while in transit to your home, and consumable Products delivered to customers who do not wish to avail themselves of an insulated bag are also covered with ice beds while in transit. Notwithstanding our efforts, you are responsible for promptly inspecting all Products you receive from us for any damage or other issues upon delivery and promptly refrigerating delivered, consumable Products. You are solely responsible for determining the freshness of the consumable Products you receive. You should always inspect your delivery to confirm that the consumable Products of your order are in a cool, refrigerated condition when delivered. To maintain the quality and integrity of consumable Products, we also include a last date of consumption on the label of each of our consumable Products. If you have reason to believe that any of our consumable Products of your delivered order is not suitable for consumption before the stated last date of consumption, please contact us at abwhisperer.com within 8 hours of delivery and do not consume the Product. We strongly encourage you immediately refrigerate all Products upon delivery and follow the U.S. Department of Agriculture’s instructions on refrigeration and food safety. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, elderly persons, and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups.

The courier will leave the package containing the Products of your order at your front door, except as otherwise noted hereinafter. Delivery notes regarding preferred location at your home/office (i.e. side door versus front door, or front desk in the case of multi-story buildings) must be submitted by email to infoabwhisperer@gmail.com by the order deadline as noted on the Weekly Menu. We provide a text notice to you upon delivery and, if previously agreed between you and us, we will ring your doorbell upon delivery. Unless otherwise agreed in advance, we will text you upon delivery to the phone number provided in your Account.  We will try to work with you regarding specific delivery instructions when setting up your Account, such as requesting that your delivery be left at the front desk or with a doorman or neighbor. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself including PROPER HANDLING OF THE CONSUMABLE PRODUCTS.

We make every reasonable effort to deliver your order for Products on the date and within a time window provided by us. In the case of inclement weather or other events beyond our control that interfere with our ability to timely deliver your order, we will attempt to deliver your order as soon as reasonably possible. In some cases, delivery of your order may occur prior to or later than the scheduled delivery date or time. If delivery of your Products is not feasible within a reasonable time after the delivery date time for that order, we will cancel your order and issue you a credit for the purchase price of that order which can be used for subsequent Products orders.

4.9. No Resale

Unless otherwise expressly agreed between you and us, you are not permitted to resell or otherwise use the Products for commercial purposes.

4.10. Returns, Replacements, Refunds, and Credits

If you are dissatisfied with any Products of your order for any reason not previously addressed, please contact us at abwhisperer.com within three (3) days of the date you received the Products. Depending on the circumstances, we may, in our sole discretion, replace the Products at our expense or provide you a partial or full credit for the Products that can be applied to future Products purchases.

Credits only remain usable for as long as you maintain a valid Account and you have not previously used the value thereof to offset the cost of an order for Products. If you cancel your Account and your Account has a credit balance due to you after all orders for Products placed prior to the time of cancellation have been delivered, we will refund to you the credit balance within sixty (60) days after the date of cancellation. All decisions regarding your Credit balance will be determined in our sole and exclusive discretion and are final.

  1. License to Access and Use Our Services and Content

Unless otherwise agreed in writing by us, the Services and all content and other materials contained therein, including, without limitation, our logo and all designs, text, graphics, pictures, information, data, software,  Feedback (as defined in Section 9), User Content (as defined in Section 11), other files and the selection and arrangement thereof (all of the foregoing, individually and collectively, “Content”) are the proprietary property of Ab Whisperer Inc. or our licensors, as applicable, and are protected by U.S. patent, trademark and copyright laws.

You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services and Content, and to download and install our App (if available), on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices (and to run the App solely for the purposes of ordering and purchasing Products from us). This right is subject to the Terms and does not include any right to (a) distribute, publicly perform or publicly display any Content, (b) copy, modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (c) use any data mining, robots or similar data gathering or extraction methods, or (d) download (other than the page caching) any portion of the Services or Content. Any use of the Services or Content other than as specifically authorized herein is strictly prohibited, and we will terminate your Account and the rights granted herein upon discovering such unauthorized use. Notwithstanding the preceding sentence, we retain the right to terminate your Account and revoke these rights at any time for any or no reason whatsoever.

Reference by us to any products, goods, services, processes or other information of another by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by such other.

We make no claim or representation regarding the quality, content, nature or reliability of third-party websites accessible, if any, by hyperlink from Services or of websites linking to Services. Such sites are not under our control: we provide links, if any, to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Services, you should be aware that our Privacy Policy no longer applies. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from Services.

  1. User Conduct

You agree that you will not violate any law, contract, intellectual property or other third party right, or commit any tort, and that you are solely responsible for your conduct while accessing or using Services. You agree that you will abide by all Terms and will not:

  • engage in any harassing, threatening, intimidating, predatory or stalking conduct through or in connection with the use of Services or your engagement with us;
  • use or attempt to use another’s Account without authorization from such other;
  • use Services in any manner that could interfere with, disrupt, negatively affect or inhibit another from fully enjoying Services or that could damage, disable, overburden or impair the functioning of Services or any aspect thereof in any manner;
  • reverse engineer any aspect of Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, aspect or code of Services;
  • attempt to circumvent any content-filtering techniques we employ or attempt to access any aspect of Services that you are not authorized to access;
  • develop any applications that interact with Content or Services without our prior written consent;
  • use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access Services, extract data or otherwise interfere with or modify the rendering of Services functionality; or
  • use Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
  1. User Content

Services may include interactive features that allow users to post or share content including, but not limited to, reviews, photos, videos or text (individually and collectively, “User Content”). You agree that you are solely responsible for your User Content and for your use of any interactive features of Services.

You further agree not to create, post, or share User Content referencing, explicitly or by implication or otherwise, directly or indirectly, any content in or pertaining to Services that:

  • is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive or fraudulent;
  • would constitute, encourage or provide instructions for a criminal offense, violate the legal rights of us and/or another or otherwise create liability in us, or violate any local, state or federal law;
  • infringes any patent, trademark, trade secret, copyright or other intellectual property right of us and/or another;
  • contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • impersonates or misrepresents any affiliation with ABW or any of its officers or employees;
  • contains any promotions, political campaigning, advertising or solicitations;
  • contains any private or personal information of a third party without such third party’s explicit consent, which consent is delivered to us prior to any posting on Services;
  • references drug or alcohol use;
  • contains any computer viruses, corrupted data or other harmful, disruptive or destructive files or content;
  • is, in our opinion, objectionable or that restricts or inhibits any other person from using or enjoying Services or ordering Products; or,
  • may expose ABW or others to any harm or liability of any type.

Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to have you remove or edit the same or to delete such objectionable content, all at your sole cost and expense.

  1. Rights in User Content

We do not claim any ownership interest in User Content which you own. However, by uploading, posting or submitting User Content to Services or on third party social media platforms (e.g., a Facebook® or Instagram® page or X® feed), you hereby grant ABW a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display such User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial purposes.

By uploading, posting or submitting User Content to Services or on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to such User Content or you otherwise have all necessary rights to post such User Content, and (c) the User Content is in full compliance with Section 7.

  1. Feedback

You can submit questions, suggestions, ideas, or offer other comments to us about ABW, Services or Products (individually and collectively, “Feedback”). Feedback is nonconfidential and, once submitted, becomes the sole property of ABW. As such, ABW has the unrestricted right to use and disseminate Feedback for any purpose, commercial or otherwise, without acknowledgment and without compensation to you.

  1. Indemnification

To the fullest extent under applicable law, you agree to indemnify, defend and hold harmless ABW, and our respective past, present and future employees, officers, directors, contractors, consultants, suppliers, vendors, service providers, subsidiaries, affiliates, agents, representatives, successors and assigns (individually and collectively, the “ABW Parties”), from and against all claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise  including, but not limited to, damages to property or personal injury (including death), that are caused by, arise out of or occur in connection with (a) any use or misuse of Services, Content or Products by you or any third party you authorize to access or use the same, (b) any Feedback you provide, (c) your violation of these Terms and/or any other terms or conditions of any agreement between you and us , and (d) your violation of the rights of another (all of the foregoing, individually and collectively, “Claims”). You agree to promptly notify ABW of any Claims, cooperate with ABW Parties in defending Claims, and timely pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement, and costs of pursuing indemnification and insurance).

  1. Disclaimers

You are solely responsible for, and assume all risks related to, the proper and safe handling, storage, post-delivery preparation and/or cooking, use and consumption of products you receive from us. You are also solely responsible for knowing about any food allergies you may have and reading and understanding Products content before handling, preparing, cooking, using and/or consuming the same. FURTHER, YOU UNDERSTAND AND ACKNOWLEDGE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS AND WE NEITHER REPRESENT NOR GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. FURTHER, WHEN WE STATE THAT A MEAL CONTAINS NO GLUTEN, IT MEANS ONLY THAT WE DO NOT INTENTIONALLY ADD A GLUTEN CONTAINING INGREDIENT; HOWEVER, THERE IS NO GUARANTEE THAT SUCH MEAL IS GLUTEN FREE.  

ALTHOUGH WE ATTEMPT TO ACCURATELY PRESENT INFORMATION DISCLOSED ON SERVICES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AND ACCURATELY DEPICT PRODUCTS, WE DO NOT GUARANTEE THE ACCURACY OF SUCH PRESENTATIONS OR DEPICTIONS. IN THE EVENT OF AN ERROR IN OUR INFORMATION, PRICING, ORDER COST CALCULATIONS, PRODUCT DESCRIPTIONS OR DEPICTIONS, ORDER CONFIRMATION, PROCESSING OR DELIVERING AN ORDER, OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR. IN CASE OF AN ERROR IN PRICE, ORDER COST, OR QUANTITY OF PRODUCTS ORDERED, WE WILL REVISE YOUR ORDER ACCORDINGLY OR CANCEL YOUR ORDER AND ISSUE YOU A REFUND OR CREDIT THEREFORE. You agree that Products you receive in your order may vary from Products depicted on Services or other media due to a number of factors including, without limitation, preparation process, ingredient supply issues, the variability of ingredients from different suppliers, particular cooking or other preparation techniques, and variability of cooking equipment and preparation appliances.

EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THESE TERMS OR EXPLICITLY STATED IN CONNECTION WITH A PRODUCT, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  FURTHER, ABW DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO SERVICES AND/OR CONTENT, AND ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM.

  1. Limitation of Liability; Release

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ABW PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF INCOME OR LOSS OF USE OR DATA) ARISING OUT OF OR IN ANY WAY RELATED TO A) THE ACCESS TO OR USE OF SERVICES (INCLUDING, BUT NOT LIMITED TO, FEEDBACK AND USER CONTENT), B) THE ORDER, PURCHASE, RECEIPT OR USE OF ANY PRODUCTS, C) THE TERMS (INCLUDING, BUT NOT LIMITED TO, DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY ABW PARTY), OR D) EVENTS BEYOND THE ABW PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION (WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ABW PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ABW PARTIES (INDIVIDUALLY AND JOINTLY) ARISING OUT OF, RESULTING FROM OR OCCURING IN CONNECTION WITH THE ORDER, PURCHASE, RECEIPT OR USE OF PRODUCTS PURCHASED FROM ABW EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OF THE ORDERS THE SUBJECT OF THE LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE ABW PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY ABW PARTIES FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THE TERMS.

THE LIMITATIONS SET FORTH IN THIS SECTION 12 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

  1. Modifications to the Services and Products

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, Services (or any aspect thereof) or the provision of any of Products at any time for any or no reason whatsoever.

  1. Dispute Resolution

PLEASE READ THIS SECTION 14 WITH PARTICULAR CARE AND ATTENTION. THIS SECTION 14 IMPOSES LIMITATIONS REGARDING THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US AND SETS FORTH LIMITS REGARDING OUR POTENTIAL LIABILITY TO YOU.

14.1 Binding Arbitration

Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Sections 6 or 7, or Disputes in which injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you agree to waive your rights to have any and all Disputes arising out of, resulting from or occurring  in connection with Services, Products and Content resolved in a court, and you agree to waive your rights to a jury trial. Instead, YOU AGREE TO ARBITRATE SUCH DISPUTES THROUGH BINDING ARBITRATION EMPLOYING THE SERVICES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”) UNDER THE RULES OF JAMS THEN IN EFFECT.

14.2. No Class Arbitrations, Class Actions or Representative Actions

You agree that arbitration is personal to you and us and, as such, no arbitrable matter shall be instituted or conducted as a class arbitration, class action or any other type of representative proceeding. If this specific provision is found to be unenforceable, then the entirety of all terms and conditions applicable under this Section 14 shall be null and void.

14.3. Notice; Informal Dispute Resolution

You and we agree that each party will notify the other party in writing of any Dispute within thirty (30) days of the date it arises. Notice to you from us shall be by certified mail delivered to the mailing address last included in your Account.  Notice to us shall be delivered by certified mail to AB Whisperer Inc., 376 Hollywood Ave, Suite 107, Fairfield, New Jersey 07004. Your notice to us must include (a) your name, postal address, telephone number, the email address you most recently used for your Account and, if then different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent as provided herein and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. You and we agree to attempt to amicably resolve the Dispute by entering into discussions in good faith in an effort to resolve the same  If, however, you and we cannot resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or we may, in accordance with this Section 14, commence an arbitration proceeding or, only as specifically provided for in Section 14.2, file a claim in court.

14.4 Time Limit to Assert Certain Claims

EXCEPT FOR DISPUTES ARISING OUT OF, RESULTING FROM OR OCCURING IN CONNECTION WITH A VIOLATION OF SECTIONS 6 OR 7 OR DISPUTES IN WHICH EITHER PARTY IS SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND WE AGREE THAT ARBITRATION MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE DATE OF NOTICE; OTHERWISE THE CLAIM(S) THE SUBJECT OF THE NOTICE ARE PERMANENTLY BARRED (WHICH MEANS THAT YOU OR WE NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM THE SUBJECT OF THE NOTICE).

14.5 Place of Arbitration

You and we agree that (a) any arbitration hearings will take place in Fairfield, New Jersey, unless we both agree to a different location, (b) arbitration will be conducted confidentially by a single arbitrator, and (c) the county, state or federal courts of the State of New Jersey have exclusive jurisdiction over the enforcement of any arbitration award.

14.6 Authority of Arbitrator

These Terms and the applicable JAMS rules shall govern the arbitration. The arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding  of  claims asserted in the notice of a Dispute, including the determination of whether the Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or consolidate more than one individual’s claims, or preside over any proceeding involving more than one individual. The determinations by the arbitrator are final and binding on the parties.

14.7 Rules of JAMS and waiver

The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to claim that the rules of JAMS are unfair or should not apply for any reason.

14.8 Arbitration Costs

Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules then in effect. Neither you nor we have the right to recover the administration and arbitrator fees unless the arbitrator finds that the claims asserted by the party instituting the arbitration are frivolous, in which event the other party shall be entitled to recover its fees.

  1. Governing Law and Venue

These Terms, your access to and use of Services and your order, purchase, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of New Jersey, without regard to conflict of law rules directing the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration shall be resolved in the municipal, county, state or federal courts located in the State of New Jersey most closely located to Fairfield, New Jersey.

  1. Severability

With the exception of any of the provisions in Section 14 affected by the invalidity or unenforceability of Subsection 14.2, all other terms and conditions of these Terms and any other written agreement between you and us shall apply.

  1. Survival

The following sections will survive the termination of these Terms and termination of your Account: all defined terms regardless of the Section in which defined, and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), and 9 through 19.

  1. Miscellaneous

These Terms constitute the entire agreement between you and ABW relating to your access to and use of Services and your order, purchase, receipt and use of Products (except as they may be amended in writing between you and us). These Terms may not be transferred or assigned by you without our prior written consent. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of you and us and are not intended to, nor do they, confer third party beneficiary rights upon another.

  1. Additional Information for Apple App Store

With respect to any App (if available) that you acquire from the Apple App Store and Android App Store, you understand that Apple or Android has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to a warranty (if any) offered by Apple or Android, you agree to notify Apple or Android; otherwise, please contact us via our Contact Us page at abwhisperer.com or via email at infoabwhisperer@gmail.com.