REFUND, RELEASE, SETTLEMENT AND NON-DISCLOSURE AGREEMENT
REFUND, RELEASE, SETTLEMENT AND NON-DISCLOSURE AGREEMENT
This Release, Settlement and Non-Disclosure Agreement (the "Agreement") is entered into today by You, (the "Releasing Party") and Hive Endeavors, LLC and any and all entities affiliated with or owned by Hive Endeavors, LLC (referred to as the "Parties Released" or “Cloudy”).
Please read this Agreement carefully to ensure that you understand each provision. This Agreement contains mandatory individual arbitration and class action/jury trial waiver provisions that require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
This Agreement is entered into by and among the parties in complete settlement of Releasing Party's claims and/or potential lawsuit respecting, resulting from, or arising out of any and all payments, conversations, access, purchase, or use of any products or services or sites or information offered by Cloudy (the "Confidential Matters"), in consideration of a refund or store credit or gift card or replacement in the amount of the Purchased Product Return subtotal (Calculated As: Purchased Product Subtotal - Taxes - Discounts - Shipping - Any other required return fees), by the Parties Released to the Releasing Party, receipt of which is acknowledged by the Releasing Party, the parties agree as follows:
- Release and Settlement Agreement: Releasing Party, for themselves, their assigns, dependents, heirs, children, executors, administrators and successors, hereby releases and forever discharges any and all claims related to the Confidential Matters they may have against the Parties Released, and/or any of their present, past and future parent companies, subsidiaries, divisions, affiliates, predecessors, successors, directors, officers, attorneys, agents, representatives, vendors, suppliers, servants, insurers, employees, distributors, sales representatives, and stockholders, and all persons, for any claim, demand, action, or cause of action, suits, proceedings, judgments, liens, or third-party lawsuits at law or in equity, in contract and/or tort for any costs and expenses (including, but not limited to, attorneys fees), losses, injuries, damages, punitive damages, and charges of any nature whatsoever, whether to person or property, whether direct, consequential, or incidental, whether known or unknown, suspected or unsuspected, fixed or contingent, whether filed or prosecuted that Releasing Party now has, claims to have had, or at any time heretofore may have, including, but not limited to, all physical, mental, emotional, or psychiatric injuries or impairments, and actions for wrongful death, and any claim for loss of consortium, society, care services, comfort and/or companionship, whether developed or undeveloped, resulting or to result, known or unknown, past, present, or future, respecting, resulting from, or arising out of any and all payments, conversations, access, purchase, or use of any products or services or sites or information offered by Cloudy related to the Confidential Matters provided by the parties released.
- No Admission of Liability: The Releasing Party agrees and acknowledges that payment by the Parties Released of the consideration specified in this Agreement is a full and complete compromise for the disputed issues between the Releasing Party and the Parties Released respecting, resulting from or arising out of any and all payments, conversations, access, purchase, or use of any products or services or sites or information offered by Cloudy related to the Confidential Matters. The Releasing Party further agrees that neither the payment of sums, nor statements made in connection with the negotiations for this Agreement by the Parties Released shall be construed as admissions of liability.
To the contrary, the Parties Released deny any such liability and it is understood that the payment of sums is the compromise of a disputed claim made in the spirit of compromise and to avoid the costs of litigation.
- Good Faith: It is agreed by and between the Releasing Party and the Parties Released that the sums specifically set forth in the first paragraph of this document are being paid in good faith to the Releasing Party by the Released Parties in consideration of the execution of this Agreement. This Agreement shall inure to the benefit of the Parties Released and shall bind the Releasing Party, their assigns, dependents, heirs and legal representatives.
- Non-Disclosure Agreement: The Parties therefore agree for themselves, their agents, attorneys, successors, heirs, administrators, representatives and assigns, and all related or affiliated persons, that they shall not directly or indirectly disclose, divulge, communicate, display, publish, or reveal any Confidential Matters defined herein through any medium, either orally or in writing, including, but not limited to, electronic mail, television or radio, computer networks or Internet bulletin boards, blogs, social media or other internet platforms, or any other form of communication to any third party whatsoever including but not limited to statements regarding Parties Released information related to the Confidential Matters defined herein. It is understood that the Releasing Party and their attorney may disclose the terms of this settlement, if necessary, to financial and tax advisors contacted by the Releasing Party and their attorneys without such contact constituting a violation of this Confidentiality Agreement. In the event that any such disclosure is necessary, any such financial or tax advisor shall be informed of the confidential nature of this Agreement, and shall be directed by the Releasing Party to maintain any information provided in strict confidence. NOTHING IN THIS AGREEMENT SHALL RESTRICT RIGHTS THAT YOU MAY HAVE UNDER THE CONSUMER REVIEW FAIRNESS ACT, WHICH INCLUDES THE RIGHT TO MAKE COVERED COMMUNICATIONS. "COVERED COMMUNICATIONS" MEANS A WRITTEN, ORAL, OR PICTORIAL REVIEW, PERFORMANCE ASSESSMENT OF, OR OTHER SIMILAR ANALYSIS OF, INCLUDING BY ELECTRONIC MEANS, THE GOODS, SERVICES, OR CONDUCT OF A PERSON BY AN INDIVIDUAL WHO IS PARTY TO A FORM CONTRACT WITH RESPECT TO WHICH SUCH PERSON IS ALSO A PARTY.
- Representation by the Releasing Party: The Releasing Party states that they have carefully read this Agreement in its entirety, they have had the opportunity to consult with counsel, and knows and understands the contents of this Agreement. The Releasing Party represents that they are not relying on the advice of the Parties Released or anyone associated with the Parties Released concerning the legal or tax consequences of this Agreement, nor is this Agreement contingent upon any favorable tax determination.
- Payment of Expenses, Liens and Other Expenses: It is understood and agreed that portions of the sums paid pursuant to this Agreement may be used by the Releasing Party to satisfy medical expenses, liens, or other expenses for which the Releasing Party may be legally liable. The Releasing Party agrees to defend, indemnify and hold harmless the Parties Released for injuries, damages, or expenses allegedly incurred, or to be incurred at any future time, by or on behalf of the Releasing Party respecting, resulting from, or arising out of payments, conversations, access, purchase, or use of any products or services or sites or information offered by Cloudy, and to indemnify the Parties Released for all costs and expenses related to defending such claims and liens, including attorney fees (such attorneys to be chosen by the Parties Released), whether or not the claims or liens or actions brought to enforce them are meritorious.
- Entire Agreement: This Agreement contains the entire Agreement between the Releasing Party and the Parties Released, pertaining to the matters set forth and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. The parties agree that this Agreement reflects the joint drafting efforts of all parties, each of whom had the right to be assisted by counsel. The parties agree that any alleged ambiguities in this Agreement shall not be construed against any party, and that this Agreement may not be amended except by a writing signed by all of the parties hereto. This Agreement constitutes the entire Agreement among the parties superseding any and all prior agreements and understandings. In particular, but without limitation, the parties intend that this Agreement supersedes and terminates all other negotiations and agreements that might be asserted by the parties.
- Governing Law: The Agreement shall be construed and interpreted in accordance with the law of the State of California, United States. Any claim under or relating to these Terms, Website, Products, and/or Services must be brought within one (1) year after the cause of action arises, or such claim or cause of action is permanently barred.
- No Class Actions: To the extent allowed by law, you waive your right to pursue any claim or dispute on a class wide basis or to join your claim or dispute with any other person or entity or assert a claim in a representative capacity on bahlaf of any other party in any lawsuit, arbitration, or other proceeding.
- Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS, EXCEPT FOR CLAIMS CONCERNING THE UNAUTHORIZED RESALE, EXPORT, ALTERATION, AND/OR TAMPERING OF YOUR CLOUDY PRODUCTS, THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM IN GOOD FAITH. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT. For any dispute with Cloudy, you agree to first contact us via email and attempt to resolve the dispute with us informally.
This provision is intended to encompass all disputes or claims arising out of Your relationship with Cloudy, arising out of or relating to the purchase and/or use of any products or services by You from Cloudy, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Notwithstanding, nothing contained in this arbitration provision shall preclude Cloudy from bringing claims concerning the unauthorized resale, export, alteration, and/or tampering of any product purchased by You, in state or federal court. All claims will be resolved by binding arbitration where permitted by law. The arbitration of any dispute or claim shall be conducted by one neutral arbitrator in accordance with the rules and regulations of American Arbitration Association (“AAA”). Any claim under or relating to this Agreement, Confidential Matters, Website, Products, and/or Services must be brought within one (1) year after the cause of action arises, or such claim or cause of action is permanently barred.
You and Cloudy agree that the purchase of a product from Cloudy evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. Unless Cloudy and You otherwise agree in writing, the location of any arbitration shall be Los Angeles, California. Except where prohibited by law, Cloudy and You agree that no arbitrator has the authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages. Any notice to be provided under this provision by You must be sent, by mail, to 3575 Long Beach Blvd, Long Beach, CA 90807
- Severability: In the event that any provision of this Agreement is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.
- Refund Transfer Fees: The Releasing Party acknowledges they will be soley responsible for any all fees associated with the transfer of the refund amount from the Released Parties to the Releasing Party. This includes, but is not limited to, credit card service fees, wire transfer fees, and merchant fees.
- Release and Waiver of Claims; Assumption of Risk: TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, YOU HEREBY AGREE TO THE FOLLOWING: (i) to waive any and all claims that you have or may have in the future against Hive Endeavors, LLC, or any of its distributors, resulting from use of the Website and Hive Endeavors, LLC Products and services; and (ii) to release Hive Endeavors, LLC or any of its distributors from any and all liability from any loss, damage, injury or expense that you or any users of this Website and any Hive Endeavors, LLC or services may suffer as a result of the use of any of the foregoing, due to any cause whatsoever, including negligence or breach of contract on the part of Hive Endeavors, LLC, in the design or manufacture of the Website or of any Hive Endeavors, LLC Products or services.
In the event of your death or incapacity, these Terms shall be effective and binding upon your heirs, next of kin, executors, administrators, assigns and representatives.
You hereby expressly waive any and all rights and benefits conferred upon you by the provisions of Section 1542 of the Civil Code of California (or any applicable analogous law), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known to him or her must have materially affected his or her settlement with the debtor.”
You and Hive Endeavors, LLC understand and agree that claims or facts in addition to or different from those which are now known or believed by each of them to exist may hereafter be discovered, but it is your intention to release all claims you have or may have against Hive Endeavors, LLC and any and all of its successors, subsidiaries, parents, affiliates, investors, branches or related entities, or those entities' officers, directors, employees, stockholders, partners, members, consultants, agents, attorneys, employee benefit plans or assigns, whether those claims are known or unknown, suspected or unsuspected.
- No Duress. I agree and acknowledge that I am under no pressure or duress to sign this Agreement and that I have been given a reasonable opportunity to review it before signing. I further agree and acknowledge that I am free to have my own legal counsel review this Agreement if I so desire.
- Release of All Claims: The Releasing Party agrees that this Agreement shall apply to all known or unknown damages and consequences flowing there from respecting, resulting from, or arising out of any and all payments, conversations, access, purchase, or use of any products or services or sites or information offered by Cloudy, that this Agreement expresses a full and complete settlement of the liability claimed and denied, regardless of the adequacy of the above considerations; and that the acceptance of this Agreement shall not operate as an admission of liability, facts, or damages on the part of anyone.
I HAVE COMPLETELY READ THIS FINAL AGREEMENT AND FULLY UNDERSTAND AND VOLUNTARILY ACCEPT IT FOR THE PURPOSE OF FINAL RESOLUTION AND SETTLEMENT OF ANY AND ALL CLAIMS, DISPUTED OR OTHERWISE, FOR THE EXPRESS PURPOSE OF PRECLUDING FOREVER ANY OTHER CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE INCIDENTS, INJURIES, OR DAMAGES ABOVE MENTIONED.
I RECOGNIZE THAT THE FUTURE COURSE OF PRESENT INJURY OR OTHER DAMAGES CANNOT BE PREDICTED WITH CERTAINTY AND (1) ASSUME THE RISK THAT THE CLAIMED INJURIES OR DAMAGES MAY WORSEN IN THE FUTURE AND THAT NEW INJURIES OR DAMAGES MAY DEVELOP AND (2) ACKNOWLEDGE THAT INFORMATION REGARDING CLAIMS MADE IS SUFFICIENT TO ENTER INTO THIS FINAL AGREEMENT AND EXPRESSLY WAIVE ANY CLAIM THAT THIS RELEASE IS NOT FAIRLY AND KNOWINGLY MADE.