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Effective Date: July 29, 2026
Last Updated: July 29, 2026
This website is operated by Elevate Foods Inc. d/b/a AppyHour ("AppyHour," "we," "us," or "our"), a Delaware corporation with its principal place of business at 1087 Franklin St, Melrose, Massachusetts 02176. AppyHour offers this website, including all information, tools, products, and services available from this site, to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here.
By visiting our site, creating an account, subscribing, or purchasing something from us, you engage in our "Service" and agree to be bound by the following terms and conditions ("Terms of Service," "Terms"), including those additional terms, conditions, and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, subscribers, merchants, and/or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to these Terms of Service. You can review the most current version of the Terms of Service at any time on this page.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
In addition, you agree to our Messaging Terms and Messaging Privacy Policy.
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1.1 By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence. If you are not the age of majority, you may use this site only with the involvement and consent of a parent or legal guardian, who agrees to be bound by these Terms on your behalf.
1.2 You represent that you are at least 18 years old and are located in the United States.
1.3 You may not use our products for any illegal or unauthorized purpose, nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
1.4 You must not transmit any worms or viruses or any code of a destructive nature.
1.5 You are responsible for maintaining the confidentiality of your account credentials and for all activity that occurs under your account. Notify us immediately at hi@appyhourbox.com of any unauthorized use.
1.6 A breach or violation of any of these Terms may result in immediate termination of your Services.
2.1 We reserve the right to refuse service to anyone for any lawful reason at any time.
2.2 You understand that your content (not including credit card information) may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
2.3 You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service, or any contact on the website through which the Service is provided, without express written permission by us.
2.4 The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
We are not responsible if information made available on this site is not accurate, complete, or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
4.1 Prices for our products are subject to change without notice, except that changes to the recurring price of an active subscription are governed by Section 6.7.
4.2 We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice.
4.3 Except as provided in Section 6, we shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.
5.1 Certain products or services may be available exclusively online through the website and may have limited quantities. Because our products are perishable food items, we do not accept returns. If there is a problem with your order, see Section 9.3.
5.2 We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
5.3 Because our products are sourced seasonally and inventory varies, the specific items included in any box may differ from those pictured or described. We reserve the right to substitute items of comparable value.
5.4 We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products and product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
5.5 We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
PLEASE READ THIS SECTION CAREFULLY. IT DESCRIBES AUTOMATIC RECURRING CHARGES AND HOW TO CANCEL THEM.
6.1 Subscription enrollment. Some AppyHour products are offered on a subscription basis. When you purchase a subscription, you authorize us to charge your payment method on a recurring basis, automatically, until you cancel. The billing frequency, recurring price, and shipping charges applicable to your subscription are disclosed to you before you complete your purchase and are confirmed in your order confirmation email.
6.2 Automatic renewal. Your subscription automatically renews at the end of each billing period at the then-current price, without further action by you, unless you cancel. Renewal occurs on the recurring schedule you selected at checkout (every 1, 2, 3, 4, 5, 6, 7, or 8 weeks, every month, or every 2 months). Each renewal is charged to the payment method on file, together with applicable taxes and shipping.
6.3 Billing dates and advance notice. Your next scheduled billing date is shown in your AppyHour Member Account and stated in each order confirmation email.
Before each renewal, we will send you an email reminder at least three (3) days in advance, identifying the upcoming billing date and the amount to be charged, and explaining how to skip, modify, or cancel.
Operational adjustments. We may adjust your scheduled billing date by up to twenty-four (24) hours, earlier or later, for operational reasons — including order processing and fulfillment scheduling, weekends and holidays, and payment processing windows. An adjustment of this kind does not change your billing frequency or the amount charged. In all cases, the reminder described above will be sent at least three (3) days before the date on which you are actually charged.
6.4 Introductory offers and first-box discounts. Discounts identified as applying to your first box — including free shipping offers, welcome discounts, mystery discounts, and referral discounts — apply only to your first order. Subsequent orders are charged at the standard subscription price plus applicable shipping. The standard recurring price and shipping charge are disclosed at checkout before you complete your purchase. See Section 11.
6.5 How to cancel. You may cancel your subscription at any time, for any reason, with no cancellation fee. You may cancel:
Cancellation stops all future charges. It does not cancel an order that has already been processed or shipped. There is no advance cutoff: if we receive your cancellation before your next scheduled billing date, you will not be charged for that box.
If an operational adjustment under Section 6.3 moves your billing date earlier than originally scheduled, a cancellation, skip, or modification request received before your originally scheduled billing date will still be honored.
6.6 Skipping and rescheduling. You may skip an upcoming box or change your delivery frequency at any time through your Member Account. Changes received before your next scheduled billing date will apply to that shipment.
6.7 Price changes. We may change the recurring price of your subscription or the shipping charge applicable to it. We will notify you by email at least thirty (30) days before any increase takes effect, and that notice will explain how to cancel. If you do not cancel before the effective date, the new price applies to subsequent renewals.
6.8 Failed payments. If a charge is declined, we may retry it, may suspend shipments, and may cancel your subscription. You are responsible for keeping your payment method, billing address, shipping address, and email address current in your Member Account.
6.9 Prepaid and gift subscriptions. Prepaid and gift subscriptions are for a fixed number of deliveries and do not automatically renew unless expressly stated at the point of sale.
6.10 Cancellation by us. We may cancel or suspend your subscription at any time, including for non-payment, suspected fraud or promotional abuse, or violation of these Terms. If we cancel a prepaid subscription other than for cause, we will refund the pro-rata value of undelivered boxes.
7.1 Allergens. Our products are food products. They are prepared, packaged, and shipped in facilities that also handle each of the nine major food allergens identified by the U.S. Food and Drug Administration: milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, soybeans, and sesame. We cannot guarantee that any product is free from any particular allergen or from cross-contact. Ingredient and allergen information for each item is printed on its packaging. If you or anyone who will consume our products has a food allergy, intolerance, or dietary restriction, you must read the product packaging before consuming and should not rely solely on descriptions on our website, in marketing materials, or on our menus, which may not reflect supplier or formulation changes.
7.2 Handling and storage. You are responsible for inspecting products upon delivery and for storing, handling, preparing, and consuming them in accordance with the instructions provided and applicable food safety guidance. Perishable products must be refrigerated or frozen promptly upon receipt. Follow all "use by," "best by," and cooking-temperature instructions on the packaging.
7.3 No health or nutritional claims. Statements about our products have not been evaluated by the U.S. Food and Drug Administration. Our products are not intended to diagnose, treat, cure, or prevent any disease. Nutritional information is provided for general reference and is not medical, nutritional, or dietary advice.
You may have the ability from time to time to purchase gift cards or subscriptions for other people through the Services ("Gifts"). Gifts are not refundable or redeemable for cash unless required by applicable law. Gifts must be redeemed for purchases through the Services in accordance with our then-current procedures for redemption, which may require the recipient to create their own account and agree to these Terms in order to redeem the Gift. Gift cards do not expire except as permitted by applicable law. We are not responsible for Gifts delivered to an email address entered incorrectly by the purchaser.
9.1 Shipping methods, timelines, and charges are described on our Shipping Policy page and disclosed at checkout. Delivery dates are estimates and are not guaranteed.
9.2 Risk of loss. Title and risk of loss pass to you upon delivery to the address you provide. Because our products are perishable, you are responsible for providing an accurate, complete shipping address and for ensuring that deliveries can be received and refrigerated promptly. We are not responsible for products that spoil after successful delivery because they were not retrieved and stored in a timely way, or for products delivered to an incorrect address you supplied.
9.3 No returns; reships and refunds. Because our products are perishable food items, we do not accept returns, and you should never ship a food product back to us.
If your box arrives damaged, spoiled, materially incomplete, or outside a safe temperature range, contact us at hi@appyhourbox.com within 48 hours of delivery, with photographs where possible. We will make it right by either reshipping the affected items or issuing a refund for them, at our discretion and in consultation with you. Refunds are issued to the original payment method.
9.4 Delays. We are not responsible for delays or failures caused by carriers, weather, or other circumstances beyond our reasonable control. See Section 27.1.
9.5 Service area. We currently ship only within the 48 contiguous United States. We do not ship to Alaska, Hawaii, US territories, or international addresses. We may add or remove service areas at any time.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For our reship and refund practices, see Section 9.3.
11.1 General. Promotional codes, discounts, credits, and referral offers are subject to the specific terms disclosed with each offer. Unless stated otherwise, offers are limited to one per customer, household, and payment method; may not be combined with other offers; have no cash value; and may be modified, suspended, or terminated by us at any time.
11.2 Mystery discount. Our mystery discount, accessed by submitting your information through the on-site pop-up and applying the code "SURPRISE," varies in amount and may change at any time.
11.3 Free shipping offers. Free shipping offers, whether auto-applied or manually entered, apply to your first box only. Subsequent boxes are subject to the shipping charge disclosed at checkout and in your Member Account.
11.4 Limited-time codes. Limited-time discount codes apply to your first box only and may be withdrawn at any time.
11.5 Referrals. Referred customers receive $20 off their first AppyHour order. The referring customer receives a $20 credit once the referred customer completes a first order, whether one-time or subscription. Referral credits are applied automatically to the referring customer's AppyHour Member Account.
A person is not eligible for a referral discount or credit if they are or have previously been an AppyHour customer, whether or not they currently have an active subscription, or if they sign up using the same email address, account details, payment method, or shipping address as a current or former AppyHour customer. We may adjust the referral offer amount at any time.
11.6 Abuse. We may, in our sole discretion, revoke discounts and credits, cancel orders, and suspend or close accounts where we believe an offer has been obtained through fraud, misrepresentation, duplicate accounts, or other abuse.
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools "as is" and "as available" without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
Certain content, products, and services available via our Service may include materials from third parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
14.1 If, at our request, you send certain specific submissions (for example, contest entries), or without a request from us you send creative ideas, suggestions, proposals, plans, reviews, photographs, or other materials, whether online, by email, by postal mail, or otherwise (collectively, "comments"), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence, (2) to pay compensation for any comments, or (3) to respond to any comments.
14.2 If you tag us or use our hashtags on social media, you grant us permission to repost and use that content across our marketing channels, with attribution to your handle where applicable.
14.3 We may, but have no obligation to, monitor, edit, or remove content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable, or that violates any party's intellectual property rights or these Terms of Service.
14.4 You agree that your comments will not violate any right of any third party, including copyright, trademark, privacy, personality, or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third party.
15.1 The Service and all content on it — including text, graphics, logos, photographs, recipes, product descriptions, packaging and box design, and software — are owned by Elevate Foods Inc. or our licensors and are protected by United States and international copyright, trademark, trade dress, and other intellectual property laws.
15.2 "AppyHour," the AppyHour logo, and our other names, logos, and marks are trademarks of Elevate Foods Inc. You may not use them without our prior written permission.
15.3 Subject to your compliance with these Terms, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Service for your personal, non-commercial purposes. All rights not expressly granted are reserved.
15.4 License to your content. You grant us a perpetual, irrevocable, worldwide, royalty-free, sublicensable license to use, reproduce, adapt, publish, and display any comments or content you submit under Section 14, for any purpose including marketing.
15.5 Copyright complaints. If you believe content on our site infringes your copyright, send written notice to hi@appyhourbox.com or Elevate Foods Inc., 1087 Franklin St, Melrose, MA 02176, Attn: Copyright Agent, including: your physical or electronic signature; identification of the work claimed to be infringed; identification and location of the allegedly infringing material; your contact information; a statement of good-faith belief that the use is unauthorized; and a statement, under penalty of perjury, that the information is accurate and that you are authorized to act on the copyright owner's behalf. We will respond to valid notices in accordance with the Digital Millennium Copyright Act and may terminate the accounts of repeat infringers.
Your submission of personal information through the store is governed by our Privacy Policy, available at https://appyhourbox.com/pages/privacypolicy, which is incorporated into these Terms by reference. Text message data is additionally governed by our Messaging Privacy Policy.
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). If we cancel an order due to a pricing or description error after your payment method has been charged, we will issue a full refund.
We undertake no obligation to update, amend, or clarify information in the Service or on any related website, including without limitation pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website should be taken to indicate that all information in the Service or on any related website has been modified or updated.
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet; or (l) to resell our products without our express written authorization. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
19.1 We do not guarantee, represent, or warrant that your use of our Service will be uninterrupted, timely, secure, or error-free.
19.2 We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
19.3 You agree that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
19.4 YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
20.1 IN NO CASE SHALL APPYHOUR, ELEVATE FOODS INC., OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICE OR ANY PRODUCTS PROCURED USING THE SERVICE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.
20.2 AGGREGATE LIMIT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF ELEVATE FOODS INC. AND THE PARTIES LISTED ABOVE, FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICE, OR ANY PRODUCT, SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT YOU PAID TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED DOLLARS ($100.00).
20.3 TIME LIMIT FOR CLAIMS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICE, OR ANY PRODUCT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES. CLAIMS NOT BROUGHT WITHIN THAT PERIOD ARE PERMANENTLY BARRED.
20.4 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions our liability shall be limited to the maximum extent permitted by law. Nothing in these Terms excludes or limits liability that cannot lawfully be excluded or limited, including liability for death or personal injury caused by our gross negligence or willful misconduct.
You agree to indemnify, defend and hold harmless Elevate Foods Inc. and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third party.
Please read this section carefully. It affects your legal rights, including your right to file a lawsuit in court and to have a jury trial.
22.1 Applicability. This Section 22 applies to any dispute, claim, or controversy between you and Elevate Foods Inc. d/b/a AppyHour arising out of or relating to these Terms of Service, the Service, any product or purchase, any subscription, our marketing or advertising, or any other aspect of your relationship with us (a "Dispute"), except that: (a) either party may bring an individual action in small claims court if the claim qualifies and remains in that court and proceeds on an individual, non-class basis; and (b) disputes arising solely out of our SMS or text messaging programs are governed by the dispute resolution provisions of our Messaging Terms, which contain a separate arbitration agreement and class action waiver. "Dispute" will be given the broadest meaning permitted by law.
22.2 Mandatory Informal Dispute Resolution. Before starting arbitration or a small-claims action, the party with a Dispute must first send a written notice to the other party describing the Dispute. The notice must include: (a) the initiating party's name, address, telephone number, and email address (and counsel's contact information, if represented); (b) enough information to identify any account, order, or phone number at issue; and (c) a detailed description of the Dispute, the claims, and the relief sought (including a calculation of any monetary relief).
If you have a Dispute with us, send this notice by email to hi@appyhourbox.com or by mail to: Elevate Foods Inc., 1087 Franklin St, Melrose, MA 02176. If we have a Dispute with you, we will send notice to the contact information we have on file for you.
For sixty (60) days after receipt of a complete notice (or longer if the parties agree), you and we will negotiate in good faith to try to resolve the Dispute. Either party may request a telephone or video settlement conference; if requested, you and an AppyHour representative will personally attend (with counsel, if represented). Completing this informal process is a condition precedent to commencing arbitration or a small-claims action. All applicable limitations periods will be tolled during this process.
22.3 Binding Individual Arbitration. If the Dispute is not resolved through the informal process, either party may elect to resolve the Dispute exclusively through binding individual arbitration administered by New Era ADR under its then-current Virtual Expedited Arbitration Rules and Procedures and applicable General Rules and Procedures (available at www.neweraadr.com/rules-and-procedures/), as modified by these Terms. The Federal Arbitration Act (the "FAA") governs the interpretation and enforcement of this arbitration agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator may award the same individualized damages and relief that a court could award on an individual basis.
If New Era ADR is unavailable or unwilling to administer the arbitration in a manner consistent with this Section 22, the arbitration will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules then in effect. If neither New Era ADR nor AAA is available, the parties will select a mutually agreeable administrator, and failing agreement within thirty (30) days, either party may petition a court of competent jurisdiction to appoint one pursuant to Section 5 of the FAA. In all cases the terms of this Section 22 control over any conflicting administrator rule.
22.4 Arbitration fees. When you initiate arbitration, the only fee you are required to pay is the administrator's consumer filing fee (currently a maximum of $300 for a consumer under New Era ADR's rules, subject to change). We will pay all other fees and expenses charged by the administrator for the arbitration, unless the arbitrator finds that your claim or the relief sought is frivolous or brought for an improper purpose. You are responsible for your own attorneys' fees and costs unless the arbitrator awards them under applicable law.
22.5 Location and procedure. Arbitration will be conducted remotely by video, phone, and/or written submissions, unless you and we agree otherwise or the arbitrator requires an in-person hearing. If an in-person hearing is required, it will take place in a location reasonably convenient for you, or in Middlesex County, Massachusetts, if you do not reside in the United States.
22.6 Class action and jury trial waiver. YOU AND APPYHOUR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING. Unless both you and AppyHour agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. YOU AND APPYHOUR ALSO WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding the foregoing, nothing in these Terms waives, and no provision of these Terms shall be construed to waive, either party's right to seek public injunctive relief to the extent such a waiver would be unenforceable under applicable law. If a claim for public injunctive relief is determined to be non-arbitrable, that claim alone shall be severed from the arbitration and stayed pending the conclusion of arbitration of all remaining claims, which shall proceed in arbitration on an individual basis.
22.7 Coordinated filings. If twenty-five (25) or more Demands for Arbitration raising substantially similar claims are filed against us by or with the assistance of the same law firm, group of affiliated law firms, or coordinated group of counsel within a period of ninety (90) days, the demands will be administered in sequential batches of no more than fifty (50) claimants each, with a single arbitrator appointed per batch. Batches will be selected by the parties in equal numbers. Following the resolution of each batch, the parties will engage in good-faith settlement discussions regarding the remaining claims before the next batch proceeds. All applicable limitations periods are tolled for claimants whose demands have not yet been filed or batched. If this paragraph is found unenforceable, it shall be severed and the remaining provisions of this Section 22 shall continue to apply.
22.8 Government agencies. Nothing in this Section 22 prevents you from reporting concerns to, or participating in a proceeding brought by, a federal, state, or local government agency.
22.9 Opt-out. You may opt out of this arbitration agreement. To do so, send written notice of your decision to opt out within thirty (30) days after the date you first accept these Terms or, if you accepted a prior version of these Terms before the Effective Date shown above, within thirty (30) days after that Effective Date. Send notice to Elevate Foods Inc., 1087 Franklin St, Melrose, MA 02176, Attn: Legal / Arbitration Opt-Out, or by emailing hi@appyhourbox.com with the subject line "Arbitration Opt-Out." Your notice must include your name, address, email address, and a clear statement that you wish to opt out of this arbitration agreement.
If you opt out, the rest of these Terms will continue to apply, and either party may pursue Disputes in court subject to Section 23. Opting out will not affect your account, your subscription, or your relationship with us in any other way. Opting out of this Section 22 does not opt you out of the separate arbitration agreement in our Messaging Terms, which has its own opt-out procedure.
22.10 Changes to this Section. If we make any material change to this Section 22 after the date you first accept these Terms (other than a change to our notice address), you may reject the change by sending written notice to hi@appyhourbox.com with the subject line "Reject Arbitration Change" within thirty (30) days after the change takes effect, in which case the version of this Section 22 in effect immediately before the change will continue to govern Disputes between you and us.
22.11 Severability and survival. If any portion of this Section 22 is found to be unenforceable, the remaining portions will remain in full force and effect, except as follows: (a) if the class-action waiver in Section 22.6 is found unenforceable as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and proceed in court, while all other claims proceed in arbitration; and (b) if a claim for public injunctive relief is found non-arbitrable, it shall be severed and stayed as provided in Section 22.6. In no event shall this Section 22 be construed to permit class, collective, consolidated, or representative arbitration. This Section 22 will survive termination of these Terms and of your relationship with us.
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and applicable United States federal law, without regard to conflict-of-law principles. The FAA governs the arbitration agreement in Section 22. Except as otherwise provided in Section 22, exclusive jurisdiction and venue for any court action permitted under these Terms will lie in the state or federal courts located in Middlesex County, Massachusetts, and you consent to personal jurisdiction there.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site. Cancellation of a subscription is governed by Section 6.5.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
Sections 14, 15, 19, 20, 21, 22, 23, 25, 26, and 27 survive termination of these Terms.
In the event that any provision of these Terms of Service 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 these Terms of Service; such determination shall not affect the validity and enforceability of any other remaining provisions. Severability within Section 22 is governed by Section 22.11.
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitute the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
27.1 Force majeure. We will not be liable for any delay in or failure of performance resulting from causes beyond our reasonable control, including acts of God, natural disasters, severe weather, fire, flood, epidemic or pandemic, labor disputes, supply chain disruption, ingredient or packaging shortages, carrier delays or failures, utility or internet outages, cyberattack, government action, or civil unrest.
27.2 Assignment. You may not assign or transfer these Terms, or any rights or obligations under them, without our prior written consent, and any attempted assignment without consent is void. We may assign these Terms in whole or in part, without restriction, including in connection with a merger, acquisition, reorganization, financing, or sale of all or substantially all of our assets.
27.3 No agency. Nothing in these Terms creates any agency, partnership, joint venture, franchise, or employment relationship between you and us.
27.4 No third-party beneficiaries. Except for the parties identified in Sections 20 and 21, there are no third-party beneficiaries to these Terms.
27.5 Notices. We may provide notices to you by email to the address associated with your account, by posting to the Service, or by mail. You consent to receive notices from us electronically. Notices to us should be sent to hi@appyhourbox.com or Elevate Foods Inc., 1087 Franklin St, Melrose, MA 02176.
27.6 California residents. Under California Civil Code § 1789.3, California users are entitled to the following consumer rights notice: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. For material changes, we will provide notice by email to active subscribers and/or by prominent notice on the Service at least fifteen (15) days before the changes take effect. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the effective date of any changes to these Terms of Service constitutes acceptance of those changes. Changes to Section 22 are additionally governed by Section 22.10.
Questions about these Terms of Service should be sent to us at hi@appyhourbox.com.
Elevate Foods Inc. d/b/a AppyHour
a Delaware corporation
1087 Franklin St
Melrose, MA 02176
More information about our SMS terms of service is available in our Messaging Terms.