PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
FoodyDirect is an e-commerce platform where customers can order food which is prepared and shipped from some of the top restaurants and artisan food makers from across the United States. In essence, FoodyDirect processes each order, and the individual restaurants or food makers fulfill and ship the orders directly to you. So you can be happy, full, and taste the best of what the world has to offer right from the comfort of your own home.
EACH RESTAURANT OR ARTISAN PRODUCER WILL HAVE DIFFERENT SHIPPING AND PACKAGING PROCEDURES AND GUIDELINES AND THEREFORE IT IS IMPORTANT THAT YOU REVIEW THE SPECIFIC PRODUCT’S SHIPPING AND PACKAGING METHOD AS WELL AS OUR GENERAL SHIPPING AND PACKAGING INFORMATION. BY USING THE SERVICE TO ORDER A PRODUCT, YOU UNDERSTAND AND AGREE TO THE SPECIFIC SHIPPING INFORMATION PROVIDED BY EACH RESTAURANT OR ARTISAN PRODUCER.
By using our Service, you understand and acknowledge that we are not directly responsible for (i) any required licenses, permits, inspections, and insurance required by local, state, and federal laws and regulations for the preparation, handling, shipping and inter-state sale of the food products; and (ii) any local, state, federal and United States Department of Agriculture (“USDA”) and Food and Drug Administration (“FDA”) guidelines and regulations for the preparation, handling, labeling, shipping and sale of the food products.
License to Use: Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. FoodyDirect reserves all rights not expressly granted herein in the Service and the FoodyDirect Content (as defined below). FoodyDirect may terminate this license at any time for any reason or no reason.
FoodyDirect Accounts: Your FoodyDirect account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a FoodyDirect account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to FoodyDirect with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify FoodyDirect immediately of any breach of security or unauthorized use of your account. FoodyDirect will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your My Account page. By providing FoodyDirect your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your My Account page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Eligibility: You may use the Service only if you can form a binding contract with FoodyDirect, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by FoodyDirect.
Service Rules: You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the FoodyDirect servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other FoodyDirect Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. FoodyDirect shall have no liability for your interactions with other Users, or for any User’s action or inaction.
You must register for an account in order to checkout. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. If there is any mistake in pricing, we will correct it and send you any additional invoices.
Please note that chargebacks are only appropriate for certain disputes, such as non-delivery of an item or delivery of an incorrect item. Any use of fraudulent chargebacks simply to get free food is strictly prohibited, and will be dealt with by reporting such chargebacks to your local police department and a credit bureau, as well as referring the matter to the user’s local small claims court.
Fulfillment and shipping are performed by the third party food businesses that you order your food from. Shipping details and costs will be made available to you when purchasing items through our Service, and options may vary based on your state. You are also responsible to pay any taxes that may be associated with the order. All products purchased from or via the Service are transported and delivered to you by an independent carrier not affiliated with, or controlled by, FoodyDirect. Please refer to our General Shipping and Packaging Information page located at shipping information.
In order to improve payment security and efficiency, all payment processing is performed through a third party processor, “Stripe” (www.stripe.com). You acknowledge that we are not responsible for any breaches of credit card security or privacy.
Some areas of the Service may allow Users to post content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service “User Content”). By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to FoodyDirect a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service
You agree not to post User Content that:
- May create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal.
- May create a risk of any other loss or damage to any person or property.
- May constitute or contribute to a crime or tort.
- Contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets).
- Contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable. We have the sole right to determine what is objectionable.
- Violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy.
- Contains any information or content that you know is not correct and current.
- Create more than one account, use another person’s account, or allow another person to use your account.
FoodyDirect reserves the right, but is not obligated, to reject and/or remove any User Content that FoodyDirect believes, in its sole discretion, violates these provisions.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
FoodyDirect takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that FoodyDirect shall not be liable for any damages you allege to incur as a result of User Content.
The foods sold through our site are provided by third parties, and not us. Therefore, we cannot provide any assurances that such foods will lack ingredients or traces of foods which you may have allergies to, even if the advertised food does not list such allergens. We are not liable for any mistakes on our Service or in the description provided by the supplier or restaurant or that the food will look like any photos on our Service. We also are not responsible if the food is not up to your liking, and we ask that you take up any concerns with the supplier.
FoodyDirect sells and its suppliers provide foods with specific preparation, care, and storage instructions. FoodyDirect and its suppliers are not liable for any damage, loss, or injury resulting from a customer’s failure to comply with preparation, care, and storage instructions associated with the foods sold and provided.
In addition, some States may prohibit the importation or sale of certain foods. For example, Sections 25980-25984 of the California Health and Safety Code prohibit the sale of certain food products that utilize the process of enlarging a bird’s liver beyond its normal size via force feeding (i.e. Foie Gras). Therefore, beginning July 1, 2012 we will not be able to sell to California residents certain food products that are in violation of this Health Code.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “FoodyDirect Content”), and all Intellectual Property Rights related thereto, are the exclusive property of FoodyDirect and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any FoodyDirect Content. Use of the FoodyDirect Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place FoodyDirect under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, FoodyDirect does not waive any rights to use similar or related ideas previously known to FoodyDirect, or developed by its employees, or obtained from sources other than you.
We take copyright infringement very seriously, and we have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act. If you believe that your copyright has been infringed, please send us a message which contains:
- Your name
- The name of the party whose copyright has been infringed, if different from your name
- The name and description of the work that is being infringed
- The location on our website of the infringing copy
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent at:
830 Menlo Avenue
Menlo Park, CA 94025
If sending the notification by e-mail, an electronic signature is acceptable.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FOODYDIRECT OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FOODYDIRECT, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FOODYDIRECT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE FOODYDIRECT SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FOODYDIRECT WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR OFFERS MADE BY THIRD PARTIES THROUGH OUR WEBSITE. THIS INCLUDES ANY FAILURE OF ANY FOODS OR RELATED ITEMS TO MEET YOUR EXPECTATIONS, FOOD ALLERGIES, OR DISSATISFACTION. WE ARE ALSO NOT RESPONSIBLE IF THE THIRD PARTY IS UNABLE TO DELIVER YOUR FOOD BECAUSE OF SHORTAGE, EMBARGO, HEALTH CODE, RECALLS, OR A STATE PROHIBITS A PARTICULAR FOOD ITEM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOODYDIRECT, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL FOODYDIRECT BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOODYDIRECT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY, FOOD BORNE ILLNESS OR INJURY, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL FOODYDIRECT, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FOODYDIRECT HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FOODYDIRECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from its facilities in the United States. FoodyDirect makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations.
You agree to defend, indemnify and hold harmless FoodyDirect and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code. This provision is intended to be as broad and inclusive as is permitted by law in the State of New Jersey and in any other similarly situated jurisdiction.
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. FoodyDirect does not warrant that the Mobile Software will be compatible with your mobile device. FoodyDirect hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one FoodyDirect account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that FoodyDirect may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and FoodyDirect or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. FoodyDirect reserves all rights not expressly granted under this Agreement. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the FoodyDirect Service.
This Agreement shall be governed by the internal substantive laws of the State of California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Forum of Dispute You agree to submit to the personal jurisdiction of a state court or federal court located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below. The prevailing party in any dispute will be entitled to their reasonable attorneys’ fees and costs.
For any dispute with FoodyDirect, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that FoodyDirect has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any FoodyDirect claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Santa Clara County, California, unless you and FoodyDirect agree otherwise in writing. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND FOODYDIRECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, food recalls, zombie attacks, banning of certain food substances, inspections, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
This Agreement, together with any amendments and any additional agreements you may enter into with FoodyDirect in connection with the Service, shall constitute the entire agreement between you and FoodyDirect concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, 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.
We may terminate your account or our provision of services to you, or cancel your order at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you will be limited to the amount you paid, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FoodyDirect without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
FoodyDirect may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by FoodyDirect in our sole discretion. FoodyDirect reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. FoodyDirect is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. FoodyDirect may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of service, do not use or access (or continue to access) the Service.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and FoodyDirect’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.