Subject to Section 12(h) of this Agreement, the Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement on the Service or Software. You are responsible for regularly reviewing this Agreement. Continued use of the Services or Software after any such changes shall constitute your consent to such changes.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
THE FOOD SERVICE PROVIDERS AVAILABLE ON OUR WEBSITE (“FOOD SERVICE PROVIDERS”) OPERATE INDEPENDENTLY OF THE COMPANY. THE COMPANY WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY FOOD SERVICE PROVIDER. THE COMPANY IS NOT RESPONSIBLE FOR THE FOOD SERVICE PROVIDERS’ FOOD PREPARATION OR SAFETY AND DOES NOT VERIFY THEIR COMPLIANCE WITH APPLICABLE LAWS. THE COMPANY OFFERS INFORMATION AND A METHOD TO ORDER FOOD AND BEVERAGES FROM FOOD SERVICE PROVIDERS, BUT DOES NOT, AND DOES NOT INTEND TO, PROVIDE FOOD AND/OR BEVERAGE SERVICES OR ACT IN ANY WAY AS A FOOD SERVICE, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ACTS BY ANY THIRD-PARTY FOOD SERVICE PROVIDER OTHER THAN AS STATED HEREIN.
- User Representations, Warranties and Covenants
By using the Software or Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation in using the Software and/or Services is for your sole, personal or internal business use. When using the Software or Services, you agree to comply with all applicable laws from your home nation, and the country, state and city in which you are present while using the Software or Services.
You may only access the Services using authorized means. It is your responsibility to check to ensure you download the correct Software for your device. The Company is not liable if you do not have a compatible handset or if you have downloaded the wrong version of the Software for your handset. The Company reserves the right to terminate this Agreement should you be using the Software or Services with an incompatible or unauthorized device.
By using the Software or the Services, you agree that:
(a) You will only use the Software or Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for fraudulent purposes.
(b) You will not use the Software or Services to cause nuisance, annoyance or inconvenience.
(c) You will not use the Software or the Services, or the Website content, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any restaurant or user, unless the Company has given you permission to do so in writing.
(d) You will not copy or distribute the Software or other content without written permission from the Company.
(e) You will not create or compile, directly or indirectly, any collection, compilation, or other directory from the Website content.
(f) You will provide us with whatever proof of identity we may reasonably request.
(g) You are aware that when requesting Services by SMS, standard messaging charges will apply.
(h) You will keep secure and confidential your account password or any identification we provide you which allows access to the Services.
(i) You will only use the Software and/or Services for your own use and will not resell it to a third party.
(j) You will not use the Website in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server.
(k) You will not attempt to gain unauthorized access to any part of the Website and/or to any service, other account, computer system and/or network connected to any Company server.
(l) You will not deep-link to the Website or access the Website manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Website or any content on the Website, unless the Company has given you permission to do so in writing.
(m) You will not copy any Website content, including but not limited to Food Service Providers’ menu content and reviews, for republication in any format or media.
(n) You will not conduct any systematic retrieval of data or other content from the Website.
(o) You will not try to harm the Software or Services in any way whatsoever.
(p) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Software or Services.
(q) You will not abuse our promotional or credit code system by redeeming multiple coupons at once.
- User Account
You are the sole authorized User of any account you create on the Website or through the Services. You are responsible for maintaining the confidentiality of any password or account number provided by you or the Company for accessing the Software or the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to respect use by minors, and you will accept full responsibility for any unauthorized use of your password or your account by minors. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. The Company has no control over the use of any User’s account and expressly disclaims any liability derived from such use. Should you suspect that any unauthorized party may be using your password or account, you will notify the Company immediately. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by the Company, or if you have been previously banned from use of the Services.
- User Content
(a) User Content. The Company will provide you with interactive opportunities on the Website, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit (“Make Available”) to the Website and/or through the Services. You hereby grant the Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with the Company’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant the Company a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Food Service Providers and other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by the Company and do not represent the views of the Company or its affiliates. The Company does not assume liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available on the Website or through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Food Service Provider; (ii) you will not provide a Rating or Review for any Food Service Provider for which you have an ownership interest, employment relationship or other affiliation or for any of that Food Service Provider’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Food Service Provider and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews, we may exclude such User Content without notice.
- Intellectual Property Ownership
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website, the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, the Software or the Services, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Website, the Software and Services are trademarks of the Company or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Software or the Services.
- Payment Terms
(a) Prices. You understand that: (a) the prices on the menus of Food Service Providers made available on the Website or through the Services may differ from the prices on the menus at the physical locations of such Food Service Providers and/or from prices available at other third-party websites, and that the Company reserves the right to change such prices at any time, at its discretion; (b) Users of the Services contract directly with Food Service Providers, and the Company is not a party to such contracts (“Third-Party Contracts”); and (c) the Company facilitates these Third-Party Contracts by supplying a medium for the exchange of money. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on the Company’s income). Payment will be processed by the Company, using the preferred payment method designated in your account, upon confirmation of the order, and the Company will send you a receipt by email.
(b) No Refunds. Charges paid by you are final and non-refundable. The Company has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, in each case in Company’s sole discretion.
- Third-Party Interactions
(a) Third-Party Websites, Applications and Advertisements. The Website and the Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) for third parties (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, the Company will not warn you that you have left the Company’s Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of the Company. The Company is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. The Company provides these Third-Party Websites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. When you leave the Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this Agreement is between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application. You acknowledge that the App Store (and its subsidiaries) are intended third-party beneficiaries of the Agreement and have the right to enforce them.
- Transactions Involving Alcohol
You may have the option to order alcohol products in some locations and from certain Food Service Providers. You agree that you will only order alcohol products if you are 21 years of age or older. You also agree that, upon receipt of alcohol products, you will provide valid government-issued identification proving your age to the Food Service Provider employee providing the alcohol products and that you will not be intoxicated when accepting such products. If you order alcohol products, you understand and acknowledge that the Company can accept your order of alcohol products, and the order will only be delivered if the Food Service Provider accepts your order. The Food Service Provider reserves the right to refuse provision of alcohol products if you are not 21 years of older, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.
You agree to indemnify and hold harmless the Company and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Website, Software or Services; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Website, Software or Services. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Website, Software and/or Services.
- Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE WEBSITE, SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE, SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE WEBSITE, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT MADE AVAILABLE THROUGH THE WEBSITE, SOFTWARE OR SERVICES.
THE COMPANY DOES NOT WARRANT THAT THE WEBSITE, SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE WEBSITE, SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE WEBSITE, SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS. THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
- Internet Delays
- Limitation of Liability
(a) Cap on Liability. TO THE FULLEST EXTENT OF LAW THE COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF (a) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S NEGLIGENCE, OR FOR (b) ANY INJURY CAUSED BY THE COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
(b) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW THE COMPANY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE, SOFTWARE, OR SERVICES INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, SOFTWARE, OR SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY FOOD SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SOFTWARE OR SERVICES, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
(c) Release of Claims. TO THE FULLEST EXTENT OF THE LAW YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY ECONOMIC DAMAGES ARISING FROM OR IN ANY WAY RELATED TO ANY FOOD SERVICE PROVIDER. THE COMPANY WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND SUCH FOOD SERVICE PROVIDER. THE QUALITY OF THE FOOD AND SERVICES SCHEDULED THROUGH THE USE OF THE WEBSITE, SOFTWARE, OR SERVICES IS ENTIRELY THE RESPONSIBILITY OF THE FOOD SERVICE PROVIDER WHO ULTIMATELY PROVIDES SUCH FOOD. YOU UNDERSTAND, THEREFORE, THAT BY USING THE WEBSITE, SOFTWARE AND/OR SERVICE, YOU MAY BE EXPOSED TO FOOD OR DELIVERY SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE WEBSITE, SOFTWARE AND SERVICES AT YOUR OWN RISK.
- Dispute Resolution
Please read the following section carefully. It requires you to arbitrate disputes with the Company and limits the manner in which you can seek relief from us. This Section 12 of this Agreement shall be referred to as the “Arbitration Agreement”.
(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website or Software, to any products or services sold or distributed through the Software or the Website (including the Services), or to any other aspect of your relationship with Company will be resolved by binding arbitration, rather than in court,except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior agreement.
(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Toyosi Azeez, 5550 Grosvenor Boulevard, Los Angeles, California 90066. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, the Company will pay them for you. In addition, the Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, the Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.
(c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.
(d) Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in section 12(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor the Company is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 13.
(f) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor the Company can force the other to arbitrate. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Swiftdine username (if any), the email address you used to set up your Swiftdine account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: Toyosi Azeez, 5550 Grosvenor Boulevard, Los Angeles, California 90066, firstname.lastname@example.org. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in future, with us.
(g) Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.
(h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
- Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and the Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in [Los Angeles].
At its sole discretion, the Company may modify or discontinue the Software, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, The Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software is terminated, this Agreement will remain enforceable against you. You may terminate this Agreement at any time by ceasing all use of the Software and Services. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles.
(c) Severability. If any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(d) Consumer Complaints. In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(e) Accessing and Downloading the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
(1) You acknowledge and agree that (i) the Agreement is concluded between you and the Company only, and not Apple, and (ii) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
(4) You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(5) You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(6) You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(f) Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following address: 5550 Grosvenor Boulevard, Los Angeles, California 90066. Such notice shall be deemed given when received by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
(g) Electronic Communications. The communications between you and the Company use electronic means, whether you visit the Website or send the Company e-mails, or whether the Company posts notices on the Website or through the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your statutory rights.
(h) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- Contact Information
Swiftdine welcomes your questions or comments regarding the Terms:
5550 Grosvenor Boulevard
Los Angeles, California 90066