Terms

CAKE.com Developer Terms

Last Updated: 08/09/2023

These CAKE.com Developer Terms (the “Terms”) are a binding agreement between CAKE.com Inc. (“CAKE.com”, “we” or “us”) and the individual or entity registering for a Developer Account (“Developer” or “you”).

By checking the box (or similar action) to accept these Terms or registering for a Developer Account, you agree to be bound by these Terms.

By registering for a Developer Account, you affirm that you are of legal age to enter into these Terms.

If you are an individual registering for a Developer Account on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. References to “you” and “your” in these Terms will refer to both the individual registering as a developer and to any such Organization.

We may change these Terms from time to time by notifying you of such changes by any reasonable means, including by posting revised Terms through our website. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. Your continued use of your Developer Account following any changes to these Terms will constitute your acceptance of such changes. The “Last Updated” legend above indicates when these Terms were last changed.

1. Introduction to the CAKE.com Tools. By registering for a Developer Account on the CAKE.com Marketplace, CAKE.com makes available to you certain CAKE.com Tools and grants you access to its Developer Portal to help you develop and use Add-Ons in connection with the Services. These Terms apply to all developers with a Developer Account, whether you are an end user of Add-Ons or a third party who provides your Add-Ons to end users. If you wish to list your Add-On on the CAKE.com Marketplace, you must enter into the CAKE.com Marketplace Listing Agreement.

2. Key Definitions

2.1. “Add-On(s)” means third-party programs, applications, enhancements, products and/or services developed by Developer and offered by Developer through the CAKE.com Marketplace that are compatible and intended to be used with a Service through an API connection. “Add-On” also includes any New Version of an existing Add-On.

2.2. “Add-On User” means a CAKE.com Enterprise User that accepts, purchases or uses an Add-On, which is subject to a separate Add-On User Terms with Developer.

2.3. “Add-On User Privacy Policy” means a legally adequate and compliant privacy policy provided to each Add-On User from whom you or your Add-On collects, accesses or otherwise processes Add-On User Data.

2.4. “Add-On User Terms” means a legally adequate and compliant agreement governing Add-On Users’ use of your Add-Ons.

2.5. “Applicable Laws” means all applicable laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications or the export of technical or personal data.

2.6. “Applicable Policies” means all policies and guidelines made available to developers by CAKE.com via the Developer Portal, including the Marketplace Guidelines.

2.7. “CAKE.com Enterprise User” or “Enterprise User” means the commercial entity, including its business and authorized users, that are licensed and authorized to use the Services pursuant to applicable terms of use.

2.8. “CAKE.com Marketplace” means marketplace.cake.com or any other webpage, application, interface, service or in-product experience at which CAKE.com makes available or lists Add-Ons and any other location that allows for the discovery, download or purchase of Add-Ons.

2.9. “CAKE.com Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by CAKE.com. Nothing contained herein shall grant you any ownership right in the CAKE.com Marks or any other CAKE.com intellectual property.

2.10. “CAKE.com Tools” means the APIs, API keys, code, access tokens, SDKs, testing environments for certain Services and other tools CAKE.com makes available to Developers.

2.11. “Content” means all Add-Ons and Product Information delivered by Developer to CAKE.com on or prior to the initial availability date the developer designates for the Add-On (the “Initial Availability Date”).

2.12. “Developer Account” means the account through which you participate in the CAKE.com Marketplace, offer and manage Add-Ons, engage with the Developer Portal and receive payment from CAKE.com for your Add-Ons.

2.13. “Developer Portal” means the online platform made accessible to Developer by CAKE.com, available at developer.marketplace.cake.com, on which CAKE.com from time to time will communicate program details and changes and provide sales tools and services, to Developer.

2.14. “Marketplace Guidelines” means the terms, rules and policies that CAKE.com makes available at dev-docs.marketplace.cake.com, which set forth certain requirements (as may be modified by CAKE.com from time to time) for offering your Add-Ons in the CAKE.com Marketplace.

2.15. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Add-Ons.

2.16. “Process”, “Processing”, and/or “Processed” means any operation or set of operations that are performed on personal information or on sets of personal information, whether or not by automated means.

2.17. “Product Information” means the following information and materials: (a) Add-On title, category, Developer name, List Prices (if applicable), product description, icon, logo or banner images, security and privacy information and any other information related to the Add-Ons that CAKE.com requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Add-On that you wish to appear in connection with your Add-On; and (c) your Add-On User Terms and Add-On User Privacy Policy.

2.18. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of Add-On User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your Add-On or (c) issue involving your Add-On that materially degrades CAKE.com systems or networks.

2.19. “Services” means websites, mobile applications, desktop apps and widgets, tools and other online products and services that are owned and operated by CAKE.com, including (without limitation) the products and services currently known as Clockify, Plaky, and Pumble.

3. Using the CAKE.com Tools.

3.1. Registration. To use the CAKE.com Tools, you must register for a Developer Account in the CAKE.com Marketplace. All access keys or developer credentials provided to you to access the CAKE.com Tools are CAKE.com’s Confidential Information and you may not share or permit others to use these account credentials. You are responsible for providing accurate Developer Account information. If any Developer Account information is inaccurate or needs to be updated or modified, you will promptly provide CAKE.com with corrections, updates or modifications. You must use a strong password for your account that is unique to our Developer Portal and not used by you in any other website or online service. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

3.2. Developer Portal. During the Term, Developer may access the Developer Portal, which includes access to certain CAKE.com Tools, CAKE.com Marks, marketing tools, and Applicable Policies. Developers may use such resources solely to exercise its rights and fulfill their obligations under these Terms. To access the Developer Portal, a Developer may be required to activate or validate its status as a Developer through its Developer Account and create a username and secure password, as further specified on the Developer Portal landing page.

3.3. Review. You and your Add-Ons must comply with these Terms and all Applicable Policies. CAKE.com reserves the right to review your compliance with the Applicable Policies and our security, performance and other criteria. At CAKE.com’s request, you will comply with our review process and provide us with reasonably requested information, including (if applicable) test accounts for your Add-Ons, which we will only use for purposes of such review. CAKE.com may change its review processes at any time.

3.4. Updates and Support. CAKE.com may, but is under no obligation to, maintain, support, update or provide error corrections for the CAKE.com Tools. If CAKE.com provides you with an update or maintenance release for the CAKE.com Tools, unless you receive a separate license from CAKE.com for that update or release that expressly supersedes these Terms, such update or release will be subject to the terms and conditions of these Terms. Each Add-On must maintain absolute compatibility with the CAKE.com Tools to be granted access to the CAKE.com Tools and the Services, including by (a) applying all CAKE.com Tools and Services updates provided by CAKE.com, (b) providing all functionalities identified as critical by CAKE.com and (c) supporting any standards (including encryption standards) required by CAKE.com.

3.5. Changes to CAKE.com Tools. From time to time, CAKE.com may change or discontinue, in whole or in part, the CAKE.com Tools or the Services. Future versions of the CAKE.com Tools and of the Services may not be compatible with Add-Ons developed using previous versions of the CAKE.com Tools or Services. CAKE.com is unable to provide notice of the changes to developers individually and will have no liability resulting from the actions described in this paragraph.

4. Your Use Rights.

4.1. License to the CAKE.com Tools. Subject to your compliance with these Terms and all Applicable Policies, CAKE.com hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable right and license to: download; install; use; embed where technically necessary and, solely as may be embedded in your Add-On and via the CAKE.com Marketplace, distribute; the CAKE.com Tools for the sole purpose of developing, using and distributing Add-Ons for use with the Services. Usage Limits. From time to time and in its sole discretion, CAKE.com may place general limits on access to or usage of the CAKE.com Tools (e.g., limits on the number of calls or requests to APIs) or other aspects of the Services. CAKE.com may also monitor and limit your usage of the CAKE.com Tools or Services for any reason, including, for example, if CAKE.com believes that your usage is in breach of these Terms, may negatively affect the CAKE.com Tools or other aspects of the Services or may otherwise subject CAKE.com to liability. You agree to abide by any limitations on access, calls or use of the CAKE.com Tools that may be set by CAKE.com and will not attempt to circumvent such limits without the separate prior written consent of CAKE.com.

4.2. Prohibited Uses. Except as expressly authorized by these Terms, any Applicable Policies or by a prior writing by CAKE.com, and with respect to the CAKE.com Tools, Developer Portal, Developer Account and any other element of the Services, you may not (nor authorize any third party to):

a) Use the CAKE.com Tools, Developer Portal and Developer Account except in connection with the Services and in accordance with these Terms, any other binding agreements between you and CAKE.com, Applicable Law and any Applicable Policies;

b) Modify or create any derivative works of the Services;

c) Take any action that would subject the Services to any third-party terms, including, without limitation, any “open source” software license terms;

d) Make any calls to the CAKE.com Tools that are not driven by a request from an end user or the Add-On itself, other than as part of reasonable testing of your Add-Ons with the CAKE.com Tools;

e) Reproduce, distribute, publicly perform, publicly display or otherwise make any portion of the Services available to any third party through any means, except to the extent embedding CAKE.com Tools may be technically necessary for the functioning of your Add-On provided that, in no event will the CAKE.com Tools be offered in any manner that would allow their extraction or use independent from the relevant Add-On;

f) Use the Services to build a competitive product or offering, or in conjunction with Add-Ons that substantially replicate any features or functionality of Services;

g) Use the Services to create any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any Applicable Law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

h) Take any action that interferes with, damages or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or Services of CAKE.com, any Enterprise User, Add-On User or other third party;

i) Make any representations, guarantees or warranties (a) that violate any laws or regulations, including any false advertising or consumer protection laws, (b) with respect to CAKE.com, the CAKE.com Tools or CAKE.com’s product or Services or (c) by or on behalf of CAKE.com, including with respect to handling of Security Incidents;

j) Circumvent or attempt to circumvent any technical requirements or limitations set by CAKE.com, except as permitted by law, or access, tamper with or attempt to probe, scan or test the vulnerability of any CAKE.com system or network or breach any security or authentication measures;

k) Disassemble, decompile or otherwise reverse engineer the CAKE.com Tools or other elements of the Services, in whole or in part;

l) Copy, distribute, sell, re-sell, sublicense, rent or lease the CAKE.com Tools, Services or any access key or developer credentials provided by CAKE.com or use such items for hosting, service provider or similar purposes;

m) Use the CAKE.com Marks or anything confusingly similar or that may create a connotation of false-endorsement by CAKE.com, in connection with any Add-On created by you, or in a manner that may create a sense of endorsement, sponsorship or false association with CAKE.com; or

n) Access the Services for competitive analysis, benchmarking or monitoring the availability, performance or functionality of the Services or to disseminate performance information (including uptime, response time and/or benchmarks) relating to the Services.

4.3. Export Controls and Economic Sanctions. Developer will comply, and will not cause CAKE.com to not comply (by for example, using CAKE.com Tools under these Terms to develop an Add-On for which required export clearances have not been obtained), with all applicable export control and economic sanctions laws and regulations of the United States and any other applicable governmental authority, including the U.S. Export Administration Regulations.

5. Intellectual Property

5.1. CAKE.com Marks. You will not violate CAKE.com intellectual property in any form, including CAKE.com Marks. You will: (i) only use the CAKE.com Marks in the form and manner as set forth in any brand guidelines made available to you by CAKE.com and only in connection with the sale of your Add-Ons in the CAKE.com Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, CAKE.com retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that CAKE.com communicates to you regarding the use of CAKE.com Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any CAKE.com Marks and (iv) upon expiration or termination of these Terms for any reason, immediately cease all use of the CAKE.com Marks, unless you are otherwise authorized to continue using the CAKE.com Marks pursuant to a separate written agreement with CAKE.com.

5.2. Reservations of Rights. As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the Services and CAKE.com Tools or other CAKE.com technology or materials used or included in the Content. Subject to your foregoing rights in the Content, CAKE.com retains all right, title and interest in and to the CAKE.com Marketplace, CAKE.com Tools, all CAKE.com products, Services and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.

5.3. Feedback. Providing feedback, comments or suggestions about the CAKE.com Tools (“Feedback”) to CAKE.com is wholly voluntary. CAKE.com may freely use Feedback for any purpose.

5.4. Aggregated Information. In addition to CAKE.com’s other rights, CAKE.com may Process and use aggregated and/or de-identified information regarding the CAKE.com Marketplace and Add-Ons.

6. Indemnification.

6.1. Indemnification Obligations. Developer will defend (at CAKE.com’s option), indemnify and hold harmless CAKE.com and its Representatives from and against any and all claims, actions, liabilities, losses, damages, judgments, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) brought by a third party arising out of or related to (a) any breach or alleged breach by Developer of these Terms, including any breach or alleged breach of Developer’s representations and/or warranties herein or (b) any Security Incidents arising from your Add-Ons, any third party services supporting your Add-Ons, or your use of the CAKE.com Tools. “Representatives” of a party means the party’s affiliates, and the party and its affiliates’ respective licensors, licensees, directors, officers, employees, contractors, agents, representatives and third-party service providers, along with the successors and assigns of the foregoing.

6.2 Indemnification Process. CAKE.com will notify Developer promptly of any Claim(s) for which CAKE.com or any of its Representative seeks indemnification and, at CAKE.com’s option, may permit Developer to control the defense of such Claim(s) with counsel Developer chooses; provided that, Developer will not settle, compromise or resolve any such Claim(s) in a manner that imposes any liability or obligation on CAKE.com or any of its Representatives, or affects CAKE.com’s or any of its Representative’s rights, without obtaining CAKE.com’s or its applicable Representative’s prior written approval. In the event Developer is permitted to control the defense of any Claim(s), CAKE.com and any of its Representatives may, at its own expense, assist in the defense of such Claim(s) if it so chooses with counsel of its own choosing.

7. User Data and Privacy-Related Obligations.

You acknowledge and agree that you will not have access to any data, content or information (including personal information) of any Add-On Users, unless and until your Add-On is installed by an Add-On User, in which case your access to and use of any such data, content or information is subject to the terms and conditions of the CAKE.com Marketplace Listing Agreement.

8. Termination.

8.1. Term. These Terms will enter into force on the date you agree to them in the manner set forth in the first paragraph of these Terms and will continue until you or CAKE.com terminate them (the “Term”).

8.2. Termination Rights.

a) Either CAKE.com or you are entitled to terminate (i) these Terms, in their entirety or with respect to particular Add-Ons or CAKE.com Tools and (ii) access to your Developer Account with thirty (30) days advance written notice to the other party. In addition, either party may terminate these Terms upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the other party breaches its confidentiality, security or privacy related obligations under these Terms or (3) the other party infringes or misappropriates the terminating party’s intellectual property rights.

b) Notwithstanding anything to the contrary in these Terms, immediately upon notice to you (or with the notice specified by CAKE.com at the time), CAKE.com may also terminate these Terms (and/or terminate or suspend either your Developer Account or these Terms with respect to any particular Add-Ons or CAKE.com Tools) under the following circumstances: (i) CAKE.com ceases to operate the Marketplace or to offer the CAKE.com Tools, (ii) you violate any Applicable Policies or (iii) CAKE.com determines (in its discretion) that your use of the Services could result in legal or business liability to CAKE.com or any third party or otherwise harm the Services or other Developers or Add-On Users.

8.3. Effect of Termination. Upon any suspension or termination of these Terms, all licenses or permissions granted to you hereunder will terminate and you must cease using the CAKE.com Tools and CAKE.com Marks and, at CAKE.com’s request, return or destroy all Confidential Information, including all copies of the CAKE.com Tools, within fifteen (15) days of termination. After termination, you will have no further access to the Developer Portal, your Developer Account or to any data or content that you submitted to CAKE.com, including your Add-On and any Product Information.

Survival. The following sections of these Terms will survive termination or expiration of these Terms: — Section 5 (Intellectual Property)
— Section 6 (Indemnification)
— Section 10 (Disclaimer of Warranties)
— Section 11 (Confidential Information)
— Section 12 (Limitation of Liability)
— Section 13 ( Dispute Resolution; Governing Law)].

9. Representations and Warranties.

9.1. You represent, warrant and covenant that:

9.2. You have the full right, power and authority to enter into and fully perform these Terms;

9.3. Before using the CAKE.com Tools or providing CAKE.com with any Content, you will have obtained the rights necessary for the exercise of all rights granted under these Terms;

9.4. None of the following will violate any Applicable Law, contain any defamatory material or violate or infringe any intellectual property, proprietary or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, rights of privacy or moral rights): your exercise of any rights granted under these Terms, including your use of the Services, your Add-Ons or your Content;

9.5. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and

9.6. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your Add-On User Terms) based on your use of third party “open source” software or other third-party intellectual property in any Add-On. You will also promptly make available to CAKE.com, Add-On Users and any other third party that is entitled to it, the source code corresponding to any Add-On or portion thereof if required, and in the manner required, by applicable third-party terms and conditions. CAKE.com’s use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third-party terms or agreements of any kind.

10. Disclaimer of Warranties.

10.1. THE CAKE.com TOOLS, CAKE.COM MARKETPLACE, CAKE.com MARKS AND SERVICES ARE PROVIDED “AS IS” AND CAKE.com EXPRESSLY DISCLAIMS, TO THE FULL EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. CAKE.com MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE RELATED TO RELIABILITY, ACCURACY OR COMPLETENESS OF THE CAKE.com TOOLS, CAKE.COM MARKETPLACE, CAKE.com MARKS OR SERVICES OR THAT CAKE.com WILL CONTINUE TO OFFER THE CAKE.com TOOLS, CAKE.COM MARKETPLACE, CAKE.com MARKS OR SERVICES OR THAT USE OF CAKE.com TOOLS, CAKE.COM MARKETPLACE, CAKE.com MARKS OR SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS.

11. CAKE.com Confidential Information.

11.1. Definition. All information disclosed by CAKE.com that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of the Services (including, without limitation, any APIs, SDKs and related source code developed by or on behalf of CAKE.com for the CAKE.com Tools) and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and CAKE.com under these Terms. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder or (iii) is received from a third party, in each case without breach of an obligation owed to CAKE.com or anyone else.

11.2. Your Obligations. During and after the duration of these Terms, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under these Terms. If you are compelled by law to disclose Confidential Information, you must provide CAKE.com with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at CAKE.com’s cost, if CAKE.com wishes to contest the disclosure.

11.3. Injunctive Relief. In event of actual or threatened breach of this Section 11, CAKE.com shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.

11.4. Independent Development; Information You Provide Is Not Confidential. CAKE.com develops its own products and services and works with many other partners and developers, and either CAKE.com or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your Add-Ons. Nothing limits CAKE.com or such third parties from doing so, and CAKE.com has no confidentiality obligations for information you submit in connection with these Terms.

11.5. Usage Data. In addition to CAKE.com’s other rights, CAKE.com may collect certain data and information regarding your use of the Services, including data about calls and requests, Add-On metadata and the Add-On User accounts that you access (“Usage Data”). We may use Usage Data for any purpose in connection with operating, improving and supporting the Services.
Open-Source Software. Certain distributed code in the CAKE.com Tools (e.g., SDKs) may be licensed under or include components subject to “open source” software terms (“OSS”). To the extent applicable, CAKE.com will identify OSS included in the CAKE.com Tools in or through the Developer Portal itself. When you use the OSS as part of the Services, you must comply with these Terms.

12. Limitations of Liability

12.1. General Limitation. NEITHER CAKE.com NOR ANY OF ITS REPRESENTATIVES WILL BE LIABLE TO DEVELOPER OR ANY OF DEVELOPER’S REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY DEVELOPER OR ANY OF DEVELOPER’S REPRESENTATIVES ARISING OUT OF OR RELATED TO THESE TERMS OR THE SUBJECT MATTER HEREOF, FOR ANY AND ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF CAKE.com OR ANY OF ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.

12.1. Liability Cap. THE ENTIRE LIABILITY OF CAKE.com AND ITS REPRESENTATIVES COLLECTIVELY UNDER, OR WITH RESPECT TO THE SUBJECT MATTER OF, THESE TERMS, SHALL NOT EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS (USD $100).

12.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into these Terms relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in these Terms and agree that such provisions are an essential basis of the bargain between the parties.

13. Dispute Resolution; Governing Law

13.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 13.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 13.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.

13.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in San Jose in Santa Clara County, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Jose in Santa Clara County, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

13.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 13.1 (Informal Resolution) and Section 13.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent CAKE.com from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

13.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

14. General.

These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and CAKE.com. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. The word “including” will be interpreted without limitation when used in these Terms. Each party will bear its own costs and expenses in performing its rights and obligations under these Terms. CAKE.com’s failure to enforce any provision of these Terms will not constitute a waiver of CAKE.com’s rights to subsequently enforce the provision. CAKE.com may freely assign, transfer and delegate its rights and obligations under these Terms. You acknowledge and agree that CAKE.com’s affiliates, contractors and service providers may exercise all rights of CAKE.com under these Terms. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without CAKE.com’s prior written consent, except that you may assign all of your rights and obligations under these Terms to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give CAKE.com written notice of any such assignment at least ten (1) business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of these Terms; however, in the event that CAKE.com determines that such assignment is to a competitor of CAKE.com, CAKE.com may terminate these Terms upon notice to you. Subject to the foregoing limitations, these Terms will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. These Terms constitute the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given by you via email to support@cake.com and by us to you by posting on our website or by email to the most recent email address that we have on file for you. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.