Terms and Conditions
This Website is hosted in the United States and intended for use by residents of the United States of America only. Therefore, all terms are governed exclusively by the laws the State of California, United States of America. If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information you explicitly authorize such transfer.
2. Account Registration.
To purchase products through our Website, you will be required to register for an account. Each individual may only have one account. To register an account, you agree to (a) provide truthful, accurate, current and complete information, (b) maintain and update, as necessary, your account information, (c) maintain the security of your account credentials including your user name and password, (d) be responsible for the acts or omissions of any third party who has authority to access or use your account, and (e) immediately notify us if you discover or suspect that the security of your account has been breached. If you have any questions regarding the security of your account or need to update the information in your account and have difficulty doing so, please contact us as soon as possible at firstname.lastname@example.org. If you provide information that is untrue, inaccurate, incomplete or you fail to keep your information current, we may suspend or terminate your account and refuse any and all current or future access to our Website, your account or orders.
3. Terms of Sale.
General Terms of Sale. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices at any time in our sole discretion and without notice. However, if we change the amounts or other charges associated with your coffee subscription services we will provide you advance notice of the change via email. We do not provide advance notice regarding applicable taxes. You may cancel your coffee subscription at any time in accordance with this Agreement for any reason or no reason including the price change. All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order; to reject all or part of an Order; to discontinue offering certain coffees or products without prior notice; or to substitute a similar coffee in place of a coffee that is not available.
Single Product Purchase. Multiple Products may be purchased on a single order. The payment box will provide you with the product description, cost of product, applicable tax and shipment charges. This is a one-time charge to your payment source unless or until you order additional products.
Subscription Purchases. We offer coffee on a variety of subscription plans (each, a “Coffee Subscription”). Not all roasted coffee is eligible for subscription. In a subscription service, we will automatically send you your coffee at regular intervals as requested by you during the order process. Subscription purchases can be customized and you may change your orders online whenever you like including postponement or cancellation. Each subscription order receive is made at a discounted price and that discount is set forth on the order page. You always have complete control over your
Coffee Subscription. You can change your delivery frequency, next order date, or quantity anytime by logging into your account. Changes and cancellations can be made any time before the next scheduled shipment date. You agree to provide us two business days to process your request for a modification or cancellation. Products that are delivered prior to the processing of an order cannot be cancelled and you agree to be responsible for all charges including tax incurred for the delivery. A subscription given as a gift will be the responsibility of the payment source holder. If you intend to gift a recurring coffee order through our subscription program, Swell Coffee Co. requires you to plan payment alterations or cancellation with the recipient. You can contact us for confirmation at any time.
Free Trial Promotions. From time to time, we may offer free trials of certain products for specified period of time. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. These terms will appear in a box next to the payment registration information box. Please review the same carefully as you and we agree that such terms will be an amendment to this Agreement.
Agreement to Charge Payment Source. WHEN YOU ORDER A COFFEE SUBSCRIPTION, YOU AGREE AND AUTHORIZE US TO CHARGE YOUR PAYMENT SOURCE EACH TIME PRIOR TO SHIPMENT OF YOUR SELECTION INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES AS LONG AS YOUR COFFEE SUBSCRIPTION CONTINUES. YOU MAY CHANGE YOUR PAYMENT SOURCE AT ANY TIME BY LOGGING INTO YOUR ACCOUNT. YOU FURTHER AGREE THAT YOUR COFFEE SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING THE PRODUCT OR CLOSE THE WEBSITE IN ACCORDANCE WITH THESE TERMS.
4. Payment and Billing Information.
You represent and warrant that you are authorized to use the designated payment method (credit card, debit card or other payment source) and that you authorize us or our payment processor to charge your payment method for the total amount of your purchase, coffee subscription or other product including any applicable taxes, shipment charges or other charges (collectively, “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You will be notified of any problem we encounter with the payment source, but you must resolve the problem in order to proceed with your Order. In the event you want to change or update payment source, you can do so at any time by logging into your account and editing your payment information.
You agree that the amount charged to your payment source may vary depending upon the products and services you request or changes in applicable taxes or other charges. You authorize us or our payment processor to charge your payment method for the corresponding order even where the amount differs from time to time. We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
5. Shipping and Handling
We want you to enjoy your coffee just as much at home as you do when you’re with us, so we will only send you coffee roasted within 36 hours of shipping. Your coffee will be sealed in a valved container for freshness, but to help ensure quality be sure to only order enough whole bean coffee for 7-14 days. We do not roast our entire selection every day, so please allow a few days from your order being placed to fit our shipping terms.
Third party carriers that we use like FedEx or USPS differ in delivery times for each option. We mainly use FedEx Express Saver which translates to 3 days or less depending on where in the contiguous U.S.A. you are. You will receive shipping notification emails and you will be able to follow your shipments with a provided tracking number. ETA provided for your shipment is by a 3rd party and is not guaranteed by Swell Coffee Co.
Orders received paid by 11:59:59 p.m. PST will ship the following available day.
Because we do not stockpile roasted coffee, and to increase shipping viability from San Diego to the rest of the world, we only ship orders Monday internationally; Monday and Tuesday nationwide; additionally on Wednesdays for central and western contiguous states. APO & FPO addresses will always ship ASAP. All subscriptions ship Mondays.
International orders usually break the internet, so please do not attempt to order in the traditional manner but instead please contact us at email@example.com for additional assistance. Costs have to be generated on a case-by-case basis but we will work with you to find the most effective option.
PO boxes may require additional fees and restrictions depending on your shipping method.
We trust and value our shipping partners, but sometimes delays will occur once coffee is in their hands or going through customs that we cannot control and are not responsible for.
Select coffees and rare lots will roast and ship only on scheduled dates. If your order contains a coffee designated as such on the product page, your entire order will ship that day. Multiple shipping dates require separate orders.
Like most of our shipping partners, we observe National Holidays and will ship coffee as soon as possible afterwards.
Free Shipping Offers are available to retail customers in the continental US only and are executed as standard ground shipping. Unless specifically noted, offers apply to purchase ofroasted coffee only – Swell Coffee Co. reserves the right to charge shipping for any merchandise / non-coffee items. Cannot be combined with other discount offers.
6. Returns and Refunds
Coffee is complex and unique, and we may be able to talk you how to thoroughly enjoy your order despite any initial impression. If your order is incomplete, incorrect, damaged, or undelivered/undeliverable or otherwise missing, please contact us as soon as you can and we will work out the best solution possible. Shipping costs are non-refundable.
Shipping can be rough on a package, and sometimes coffee bags get punctured or are otherwise damaged. Please contact us immediately if so, we may request a photograph but we will work immediately to fix the issue.
Coffee is perishable, so refund requests must be received within 21 days of roasting. A maximum of $35 will be considered for refund for roasted coffee. All situations have potential circumstances we will consider, and in some cases we will require items to be shipped back to us at customer expense to qualify for a refund. Merchandise and equipment must be unused, unwashed, unopened, fully functional, and in its original packaging.
ALL PRODUCTS AND THE WEBSITE CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE PRODUCTS OR WEBSITE CONTENT; (B) USER GENERATED CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR THROUGH THE WEBSITE. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
WE DO NOT WARRANT THAT THE WEBSITE WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. WE DO NOT WARRANT THAT THE WEBSITE OR THE SERVER IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE WEBSITE IS ACCURATE, COMPLETE, OR USEFUL. YOU AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION OR COUNTRY AND SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
8. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE WEBSITE OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE WEBSITE OR US OR FROM EVENTS BEYOND OUR CONTROL, SUCH AS INTERNET OR WEBSITE INTERRUPTIONS, DELETIONS OF FILES, EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE WEBSITE OR RECORDS CONTAINED ON THE SERVER WITHIN THE PROGRAMS OR SYSTEMS RUNNING THE SAME. REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT INCLUDING, BUT NOT LIMITED TO, 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 SWELL COFFEE COMPANY OR ITS OWNERS (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE WEBSITE EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE OUR SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
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 US FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH COUNTER CULTURE FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, 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 BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. Ownership and License to Website and User Content.
You have ownership interest in your User Content. You agree to post your own content and not that of a third party. By posting, you are representing and warranting that the posted content is original to you.You agree to indemnify and hold us harmless from any claims by a third party that you violated their intellectual property by submitting the same to us. This indemnification includes reimbursement of any monies paid in settlement, judgement as well as attorney fees and court costs. By uploading, posting or submitting User Content to us, our Website, Facebook Page, Instagram page, Twitter feed or in response to surveys from us or general communications with us, you grant us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your content, in any manner determined by us in our sole discretion.
You further agree that we may disclose or use any of your content transmitted to us for any purpose including, but are not limited to, (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims related to your content that violates the rights of third parties; or (d) protecting our rights or property and those of our other users and customers or the general public.
10. Links to Third Party Websites.
The Website may contain links to Websites owned or operated by parties other than us. These links are provided for your convenience only. We do not control, and are not responsible for, the content or privacy policies on, or the security of, such Websites and disclaim any responsibility relating to such Websites. Neither do we endorse the content, or any products or services available, on such Websites. To the extent you found our Website through a link on a third party website, we are not responsible for the content or other links or use of personal and non-personal information on that third party website.
11. Binding Arbitration and Class Action Waiver.
a. You and we agree that any dispute, claim or controversy arising out of or relating in any way to the use of our Website or products shall be determined by binding arbitration or in small claims court. In agreeing to Binding Arbitration you and we are giving up the right to have the dispute heard in a court of law or before a jury. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision. You and we are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your account with us. The matter should be sent to the American Arbitration Association in San Diego, California to be heard before one arbitrator selected by the American Arbitration Association. The prevailing party shall be entitled to reasonable attorney fees, costs, and expenses in addition to any other relief to which he or she may be entitled. Any small claims matter shall be filed in the County of San Diego Small Claims Court.
b. If you elect to seek arbitration or file a small claim court action, you must first send us by certified mail, a written Notice of your claim (“Notice”). The Notice to us must be addressed to: C/O Legal Counsel 3515 Hancock St, Ste 200, San Diego, CA 92110 (“Notice Address”). If we initiate arbitration, we will send a written Notice to the email address used for your membership account. A Notice, whether sent by you or us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding.
c. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless we and you agree otherwise, any arbitration hearings will take place in the county of your residence. These rules may be found at www.adr.org.
d. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT THE ARBITRATOR MAY NOT JOIN OR CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS WITH YOUR CLAIMS OR PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial to the extent permitted by law.
Notwithstanding anything contained in this Agreement, we reserve the right to terminate your access or use of the Website or order, receive and use the Products, at any time and for any or no reason. We may but are not required to provide you notice of this termination. You agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us so long as you received the products, to the fullest extent permitted by applicable law.
13. Governing Law and Jurisdiction
Our company is located in San Diego, California, U.S.A. This Agreement and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of California without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods and other international treaties that are not mandatory with respect to contracts made and performed entirely in California shall not apply. The exclusive forum for the resolution of any dispute relating to this Agreement shall be in San Diego County, California, or the United States District Court for the Southern District of California and you agree to personal jurisdiction by such courts over you with regard to any dispute relating to this Agreement and agree to service of process on you by e-mail and registered letter to the address you provided in your Account. 20.
- Overdraft fees. In the event of overdraft of your account due to a charge for an original order or a reorder, we are not liable for such overdraft fees.
- Assignment. This Agreement and the rights and liabilities of the parties hereto inure to the benefit of their respective successors and assigns. We may assign this Agreement to any successor entity. You may not assign without our written permission.
- Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the terms and conditions will continue in full force and effect.
- Attorneys’ Fees. In the event either of us commences any claims, actions, formal legal action, or arbitration to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorneys’ fees and costs incurred on appeal.
- No Waiver. No waiver of or by us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. • Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
- Complete Agreement. This Agreement constitutes the entire agreement between you and us with respect to your access and use of the Website and you’re ordering and use of products on or through our Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matters.
- Modifications. We reserves the right to change any of the provisions posted herein and you agree to review these terms and conditions each time you visit the Website. Your continued use of the Website following the posting of any changes to these terms and conditions constitutes your acceptance of such changes. We do not and will not assume any obligation to provide you with notice of any change to this document and you acknowledge and agree to same. Unless accepted by us in writing, you may not amend these terms and conditions in any way. We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Website or the provision of any Products at any time.
- Survival of Sections upon Termination. The following sections will survive the expiration or termination of this Agreement and the termination of your account: all defined terms and Sections 4, 5, 6, 7, 8, 11, 13 and 14.
This Agreement governs all transactions made on or through our Website. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act. You manifest your agreement to the terms and conditions in this document by any act demonstrating your assent thereto, including clicking the submit button for the order, or by merely accessing the Website, whether you have read these terms or not. This includes your authorization to charge your credit card or debit your bank account. Please print these terms and conditions for your personal records.
In addition, you consent to receiving electronic communications from us relating to your account. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters special offers, promotional announcements and customer surveys via email or other methods.
If you have any questions, please contact us at: firstname.lastname@example.org