TERMS OF SERVICE
Last updated on 7/9/2019
1. Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you do not agree to the Terms, you are not authorized to access or otherwise use the Services.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND DISHDIVVY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW SECTION 22 “DISPUTE RESOLUTION” BELOW CAREFULLY FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
3. Our Services.
(a) We provide an online marketplace that enables Account holders who prepare home-cooked meals (each, a “Meal”) (“HomeCooks”) to sell such Meals to Account holders who wish to purchase them (“Neighbors”). We do not sell Meals and we are not a party to the transactions between HomeCooks and Neighbors.
(b) We hold quality standards in high regard and want to make sure that both HomeCooks and Neighbors get the best experience from using our Services. For this purpose, we have a process in place to screen HomeCooks for quality and compliance with food safety standards, as described in these Terms. However, we do not conduct background checks, vet or otherwise verify the identity, integrity, or trustworthiness of HomeCooks or any other Users. We also do not guarantee (i) the quality or safety of the Meals provided by HomeCooks, or (ii) the ability of Neighbors to pay for the Meals. We encourage you to exercise diligence and caution in all your interactions with other users when using the Services.
(c) You acknowledge and agree that Neighbors and HomeCooks are independent individuals acting at their own accord, at their own expense, through their own resources, and at their own risk.
4. Changes to the Terms or Services. We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site and App or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 22(f) “Effect of Changes on Arbitration,” you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
5. Who May Use the Services?
(a) Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with DishDivvy, and are not barred from using the Services under applicable law.
(b) Registration and Your Information. If you want to use the Services as a HomeCook or a Neighbor, you must create an account (an “Account”). You can do this via the Site or App. If you want to use the Services as a Neighbor, you can also create an Account through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. If you want to create an Account as a HomeCook, please refer to Section 6 for additional information.
(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
6. HomeCook Account. The following terms apply if you want to create an Account as a HomeCook:
(a) To create an Account as a HomeCook, you must submit a questionnaire via the Services. As part of the questionnaire (and on an ongoing basis if and after your HomeCook Account is created), you must provide us with: (i) Government-issued identification card; (ii) Food Handler Card (or Food Protection Manager certification); and (iii) Seller’s Permit. You also agree to submit to an in-person visit your home kitchen in which you will prepare the Meals (“Home Kitchen”), as well as to an in-person interview and/or a sample taste test. In addition, you may be required to provide information on your qualification as a home-cook and the meals you intend to offer for sale (such as list of ingredients and other information that may be of interest to Neighbors).
(b) Submitting a questionnaire to create a HomeCook Account does not guarantee that your Account will be approved. Conducting the questionnaire review process and the decision on the approval of the HomeCook Account is in all aspects subject to our sole and absolute discretion.
(c) Upon approval of your HomeCook Account, you will be allowed to complete your profile on the Services and start offering Meals for sale.
7. Terms Specific to HomeCooks. If you are a HomeCook, you agree to the following terms:
(a) You agree to only offer to sell Meals through the Services that are made at the Home Kitchen visited by us in accordance with Section 6 above. You must update your Account to register a change of Home Kitchen as soon as reasonably possible. This change will prompt us to visit your new Home Kitchen. You agree not to sell Meals prepared at your new Home Kitchen unless and until the new Home Kitchen has been visited by us.
(b) You agree to personally (i) buy the ingredients for the Meals you offer to sell via the Services, and (ii) cook such Meals. You will not engage third-party services, with or without pay, for the purpose of preparing the Meals. You are responsible for all costs and expenses related to the preparation of the Meals and your use of the Services, including, without limitation, cooking tools and equipment, and ingredients.
(c) In order to maintain uniformity across the Services, we will provide you with guidelines for Meal size, portion configuration and material quality of containers for the Meals. You agree to only use the labels made available via the Services for your Meals.
(d) You acknowledge and agree that Neighbors who purchase your Meals may provide public feedback about you and your Meals which may be visible to all users of the Services, and that you may not be given the opportunity to respond to such feedback. Such feedback may be in the form of star ratings, individual comments, and/or any other feedback mechanism that we make available on the Services at our sole discretion. You further acknowledge and agree that such feedback may be provided by Neighbors in person or on other digital platforms.
(e) You will consider providing (but are not obligated to provide) a sample of your choice as a special surprise treat to Neighbors who purchase your Meals, free of charge. By way of suggestion, this could be in the form of a tasting sample of one of your popular dishes.
(f) You acknowledge and agree that we do not have any obligation to pay you any monies – in cash, in kind, or otherwise – other than submitting your Earnings to you, as set forth in Section 9 below.
(g) You agree to comply at all times with all (i) standards of quality, safety and cleanliness required by us and communicated periodically to you via the Services, and (ii) applicable laws and regulations, including applicable food handling requirements, fire codes, zoning requirements and any required health and safety inspections. You also agree to maintain at all times all necessary licenses, permits, and certifications required to act as a HomeCook.
(h) As long as you comply with these Terms, you have the ultimate control over how frequently you prepare your Meals, when you prepare them, when and how you offer them for sale, how you price them, and how you prepare them in terms of recipe, groceries, materials used, and preparation process.
(i) You agree to comply with all commitments you make when you offer your Meals for sale through the Services, including the types of Meals you offer, the price of the Meal, and the date, time, and place at which it is being offered for pickup.
(j) You are solely responsible for calculating, collecting, and remitting any and all applicable taxes and other fees or payments, and completing and filing all necessary reports that may be applicable to you and your use of the Services. We are not your tax or legal advisor and we have no obligation to calculate, collect, and remit taxes or other fees and payments, or make any filings or submit reports, on your behalf. You are encouraged to seek the advice of legal, tax, or other professional counsel as regards your use of the Services.
8. Terms Specific to Neighbors. If you are a Neighbor, you agree to the following terms:
(a) By purchasing a Meal, you agree to take all necessary actions to pick up the Meal at the designated time and location. We also offer you the option of having the Meal picked up and delivered to you via the Services upon payment of the Delivery Fee. If you choose to have the Meal delivered to you via the Services instead of picking it up yourself, YOU ACKNOWLEDGE AND AGREE THAT THE DELIVERY SERVICES ARE PROVIDED BY DISHDIVVY AND OUR THIRD-PARTY SERVICE PROVIDERS AND NOT BY THE HOMECOOKS. NO DELIVERY SERVICE IS PROVIDED BY THE HOMECOOKS.
(b) You acknowledge and agree that the information on the Meals displayed on the Services, including description, ingredient list, allergens and dietary tags, is provided by the HomeCooks. We do not verify or guarantee the accuracy of any such information. You further acknowledge and agree that a Meal may be prepared in home kitchens using the same equipment that is used to prepare other allergens even if the allergen is marked as being absent from the Meal. We will not be responsible for any illness, health problem or other loss or damage resulting from your reliance on the information on the Meals displayed on the Services, or from your consumption of the Meals.
(c) It is your responsibility to ensure that the Meal purchased by you is safe to eat, including by refrigerating all perishable foods as soon as possible at the temperature of 40° F or below. You may refer to the Food Safety Guidelines (https://www.foodsafety.gov/risk/deliveries/index.html) and other Instructions on Food Safety and Refrigeration (https://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-education/get-answers/food-safety-fact-sheets/safe-food-handling/refrigeration-and-food-safety/ct_index) published by the U.S. Department of Agriculture for more information on best practices or other questions on food safety.
(d) You acknowledge and agree that HomeCooks may refuse service to anyone based at their own discretion, including if you violate these Terms.
(e) You acknowledge and agree other users of the Services may provide public feedback about you, which may be visible to all users of the Services, and that you may not be given the opportunity to respond to such feedback directly on the Services. Such feedback may be in the form of star ratings, individual comments, and/or any other feedback mechanism available on the Services at our sole discretion. You further acknowledge and agree that such feedback may be provided by users in-person or on other digital platforms.
9. Payment and Fees.
“Delivery Fee” means the fee charged by DishDivvy to the Neighbor if the Neighbor choses to have the Meal delivered to him/her via the Services.
“Earnings” means the monies a HomeCook earns through selling a Meal via the Services, equal to the amounts paid by Neighbors for Meals and actually received by DishDivvy, calculated as the Meal Price less the HomeCook Service Fee.
“HomeCook Service Fee” means the fee charged by DishDivvy to the HomeCook for using the Services, equal to fifteen percent (15%) of the Meal Price.
“Meal Price” means the price of the Meal determined by the HomeCook and payable by the Neighbor. The Meal Price does not include applicable sales or other taxes and charges payable by the Neighbor.
“Neighbor Service Fee” means the fee charged by DishDivvy to the Neighbor for using the Services, equal to five percent (5%) of the Meal Price.
(b) Opening an Account. Opening an Account on the Services is free.
(c) Terms applicable to HomeCooks. If you are a HomeCook, you agree that we act as a limited payment collection agent for the sole purpose of collecting payments from Neighbors on your behalf and remitting the payments to you, net our HomeCook Service Fee. You further agree that:
- We require payment of the HomeCook Service Fee when you sell a Meal via the Services.
- We reserve the right to make any changes in the HomeCook Service Fee at our sole and absolute discretion. Any increase in the HomeCook Service Fee will be communicated to you at least thirty (30) days before it comes into effect. We may decide to offer incentives, discounts, and/or other promotions at our sole and absolute discretion and such offerings may be subject to additional terms and conditions.
- Earnings will be remitted to you in accordance with the payment information registered with your Account (“HomeCook Payment Information”).
- You represent and warrant that you have the legal right to use all payment method(s) represented by any such HomeCook Payment Information. It is your responsibility to ensure that your HomeCook Payment Information is accurate, complete and up-to-date. We will not be responsible for the failure to complete the remittance of any Earnings to you if you provide inaccurate or incomplete HomeCook Payment Information.
- For the avoidance of doubt, DishDivvy only has an obligation and will only remit Earnings calculated based on amounts actually collected and received by DishDivvy from Neighbors.
- If you have any questions about the calculation or payment of your Earnings, please contact DishDivvy at email@example.com.
(d) Terms applicable to Neighbors. If you are a Neighbor, you agree to the following terms:
- You agree to pay the Neighbor Service Fee when you purchase a Meal via the Services (each purchase, a “Transaction”).
- In addition to the Neighbor Service Fee for each Transaction, you agree to pay the corresponding Meal Price and, if applicable, Delivery Fee. You expressly authorize us (or our third-party payment processor) to charge you for each such Transaction (plus any applicable sales or other taxes and other charges). We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Neighbor Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Neighbor Payment Information. When you initiate a Transaction, you authorize us to provide your Neighbor Payment Information to third parties so we can complete your Transaction and to charge your payment method for the Transaction (plus any applicable sales or other taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Neighbor Payment Information).
- We reserve the right to make any changes in the Neighbor Service Fee at our sole and absolute discretion. Any increase in the Neighbor Service Fee will be communicated to you at least thirty (30) days before it comes into effect. We may decide to offer discounts and/or other promotions at our sole and absolute discretion and such offerings may be subject to additional terms and conditions.
10. Content Ownership, Responsibility and Removal.
(a) Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any and all Content that you submit to or provide to made available through the Services.
(b) Our Content Ownership. DishDivvy does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, DishDivvy and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
(c) Rights in User Content Granted by You. By making any User Content available through the Services you hereby grant to DishDivvy a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and Content, including for advertising and marketing purposes in any media or platform.
(d) Your Responsibility for User Content. You are solely responsible for your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by DishDivvy on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You acknowledge and agree that while DishDivvy has no obligation to vet, monitor, or control User Content, DishDivvy reserves the right to refuse publishing certain User Content and/or remove any User Content at its sole and absolute discretion, with or without cause. You hereby acknowledge and agree that we are in no way liable for any damage that this action or omission may cause you.
(e) Removal of User Content. You can remove your User Content by specifically deleting it or contacting firstname.lastname@example.org. However, in certain instances, some of your User Content (such as reviews you submit) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(f) Meal Photos. If you are a HomeCook, when we visit your Home Kitchen, we may offer to take professional photographs of the meals you intend to offer for sale (“Meal Photos”), which we make available to you for use on the Services. You acknowledge and agree that DishDivvy exclusively owns all right, title and interest in and to the Meal Photos, including all associated intellectual property rights. Subject to your compliance with these Terms, DishDivvy grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to use the Meal Photos solely on the Services and in connection with your HomeCook Account. You agree not to use the Meal Photos for any purpose outside the Services. You further agree to stop using the Meal Photos if they no longer accurately represent the Meals you are offering for sale.
(g) Rights in Content Granted by DishDivvy. Subject to your compliance with these Terms, DishDivvy grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
11. Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
12. Rights and Terms for Apps.
(a) Rights in App Granted by DishDivvy. Subject to your compliance with these Terms, DishDivvy grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. DishDivvy reserves all rights in and to the App not expressly granted to you under these Terms.
(b) Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are concluded between you and DishDivvy, and not with the App Provider, and DishDivvy (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of DishDivvy.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, DishDivvy will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You must also comply with all applicable third party terms of service when using the App.
13. Prohibited Use Policy. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Connect with, solicit, or otherwise engage with other users of the Services for any reason other than as envisioned by the Services in connection with our business line;
(c) Use, display, mirror or frame the Services or any individual element within the Services, DishDivvy’s name, any DishDivvy trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without DishDivvy’s express written consent;
(d) Access, tamper with, or use non-public areas of the Services, DishDivvy’s computer systems, or the technical delivery systems of DishDivvy’s providers;
(e) Attempt to probe, scan or test the vulnerability of any DishDivvy system or network or breach any security or authentication measures;
(f) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by DishDivvy or any of DishDivvy’s providers or any other third party (including another user) to protect the Services or Content;
(g) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by DishDivvy or other generally available third-party web browsers;
(h) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(i) Use any meta tags or other hidden text or metadata utilizing a DishDivvy trademark, logo URL or product name without DishDivvy’s express written consent;
(j) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(k) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
(l) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
(m) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(n) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(o) Impersonate or misrepresent your affiliation with any person or entity;
(p) Violate any applicable law or regulation; or
(q) Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
(a) You may terminate your use of the Services at any time by cancelling or deleting your Account. You acknowledge that upon such cancellation or deletion, we may decide, at our sole and absolute discretion, to delete and/or no longer maintain any User Content that you have provided us. You hereby acknowledge and agree that we are in no way liable for any damage that this action may cause you.
(b) We may terminate your access to and use of the Services, at our sole and absolute discretion, which may be exercised with or without notice to you. Further, we reserve the right to suspend, deactivate, limit, or otherwise restrict your Account and your access to and use of the Services, in whole or in part, at our sole and absolute discretion, which may be exercised with or without notice to you. You hereby acknowledge and agree that we are in no way liable for any damage that this action or omission may cause you.
(c) Sections 10(a), 10(b), 10(c), 10(f), 16, 17, 18, 21, 22 and 23 shall survive any termination of these Terms.
15. Independent Relationship. You acknowledge and agree that you and DishDivvy are not entering into an employment agreement, joint venture, partnership, or other relationship which gives rise to any rights and obligations other than those explicitly laid out in these Terms, and nothing in these Terms shall be construed as creating such a relationship between you and DishDivvy. You and DishDivvy are also not entering into an agency agreement, other than to the exclusive, limited extent of us acting as the HomeCook’s limited payment collection agent. You and DishDivvy are acting on an independent, basis. You may not incur any obligations on behalf of DishDivvy, you may not bind DishDivvy, and you may not hold yourself out as representing DishDivvy in any capacity or manner.
16. Indemnification. You agree to indemnify, hold harmless and defend DishDivvy, its officers, directors, shareholders, employees, and agents from and against any and all losses, costs, damages, claims, suits, actions, judgments, demands, obligations, debts, liabilities, and expenses whatsoever (including, without limitation, reasonable attorneys’ fees, court costs and investigation expenses) (each, an “Action”) arising from, or on account of, or related to the following: (i) your access to or use of the Services or Content; (ii) any breach by you of these Terms; (iii) any violation by you of any applicable laws or regulations applicable to your use of the Services; (iv) your negligence or willful misconduct; and (v) if you are a HomeCook, any Meal prepared by you, including with respect to any Action made by a Neighbor.
17. Warranty Disclaimers.
(a) THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
(b) YOUR USE OF THE SERVICES IS DONE VOLUNTARILY AND AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT SOME INTERACTIONS THROUGH OR RELATED TO THE SERVICES MAY CARRY INHERENT RISK, AND BY USING THE SERVICES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY AND KNOWINGLY. FOR EXAMPLE, THE MEALS THE HOMECOOK PREPARES FOR A NEIGHBOR MAY CARRY RISK OF ILLNESS, BODILY INJURY, OR DEATH, OR THE HOMECOOKS AND/OR NEIGHBORS YOU INTERACT WITH MAY VIOLATE YOUR RIGHTS, AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO USE THE SERVICES. YOU ASSUME FULL RESPONSIBILITY FOR THE CHOICES YOU MAKE BEFORE, DURING, AND AFTER YOUR USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS DISHDIVVY FROM ALL LIABILITIES AND CLAIMS THAT ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM IN ANY WAY RELATED TO YOUR USE OF THE SERVICES.
18. Limitation of Liability.
NEITHER DISHDIVVY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DISHDIVVY OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL DISHDIVVY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO DISHDIVVY FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO DISHDIVVY, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DISHDIVVY AND YOU.
19. COPYRIGHT POLICY. We respect the intellectual property rights of others and expect our Users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see DishDivvy’s Copyright and IP Policy for further information.
20. Links to Third Party Websites or Resources. The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
21. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 22 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and DishDivvy are not required to arbitrate will be the state and federal courts located in Los Angeles, California, and you and DishDivvy each waive any objection to jurisdiction and venue in such courts.
22. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and DishDivvy agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and DishDivvy are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions and Opt-out. As limited exceptions to Section 22(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org or by regular mail at PO Box 821, Montrose CA 91021 within thirty (30) days following the date you first agree to these Terms.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr. org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Class Action Waiver. YOU AND DISHDIVVY 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 OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 4 “Changes to Terms or Services” above, if DishDivvy changes any of the terms of this Section 22 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com ) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of DishDivvy’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and DishDivvy in accordance with the terms of this Section 22 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
(g) Severability. With the exception of any of the provisions in Section 22(e) of these Terms (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
23. General Terms.
(a) Entire Agreement. These Terms constitute the entire agreement between you and DishDivvy. All prior agreements, understandings, and communications, whether written or oral, express or implied, that relate to the matters contemplated herein shall be deemed to be merged herein and superseded hereby.
(b) Waiver of Rights. DishDivvy’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DishDivvy. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
(c) Severability. If any provision of these Terms, shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a competent tribunal or adjudicator finds that any provision of these Terms is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
(d) No Assignment. These Terms shall be binding on the parties and their successors and permitted assigns. You shall not assign, transfer, or delegate any of your rights, duties, or obligations under these Terms, or any part thereof, whether by operation of law or otherwise, without our prior written consent, which may be withheld, conditioned or delayed in our sole and absolute discretion. DishDivvy may freely assign these Terms without restriction. Any assignment in violation of this section shall be void.
24. Contact Information. If you have any questions about these Terms or the Services, please contact DishDivvy at firstname.lastname@example.org, or PO Box 821, Montrose, CA 91021.