IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE WEBSITE. BY ACCESSING OR USING THE WEBSITE OR ANY CONTENT OFFERED THROUGH THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS, AS THEY MAY BE UPDATED FROM TIME TO TIME IN OUR SOLE DISCRETION. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE WEBSITE.
1. Basic Rules and Rights We Are Granting.
License Grant. Subject to your agreement and compliance with these Terms and any other relevant
Minimum Age Requirement for Users Who Are Individuals. If a User is an individual, a User may only use the Website if such User is at least thirteen (13) years of age. If you are under the age of eighteen (18), you represent that you have received permission from a parent or guardian to enter into these Terms.
Use of the Website. The following restrictions, terms and conditions apply to the use of the Website:
• Without first obtaining our written permission, you shall not use the Website if we have notified you that you may not use the Website;
• You shall not use the Website to engage in any illegal conduct;
• You shall not reproduce, distribute or publicly display any content you access through the Website unless such content is clearly marked as “public” or you have been given the right to view and share such content in accordance with these Terms; and
• You shall not do anything with any content you access through the Website that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
License and Limitations and Prohibitions.
General Effects of Violations. Any use of the Website in violation of these Terms is strictly prohibited,
can result in the immediate revocation of your limited license granted under these Terms and may subject you to liability for violations of law.
Policies. You acknowledge that we may also have in place other policies regarding use of the Website and that you agree to abide by such policies and that such policies are in addition to any obligations you have under these Terms.
Activity Prohibitions. You agree that you will not, under any circumstances:
Suspension and Termination of Access:
FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCESS TO THE WEBSITE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOU USE THE WEBSITE FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR OTHER IMPROPER USE. WE SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR, AND SHALL HAVE NO LIABILITY TO YOU FOR, ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION OR DELETION OF YOUR ACCESS TO THE WEBSITE.
IP INFRINGEMENT. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE ACCESS TO THE WEBSITE, OR ANY PORTIONS THEREOF, INCLUDING ANY CONTENT INCORPORATED THEREIN, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE WEBSITE IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
Right to Cease Service. We reserve the right to stop offering or supporting the Website or part of the Website at any time, at which point the license granted hereunder to you to use the Website or any applicable part thereof will automatically terminate. We shall not be required to provide refunds, benefits or other compensation to Users in connection with any such cessation of the Website.
Intellectual Property Ownership. As between you and us, the Website and all of its components and contents (including without limitation any computer code, pre-populated content, concepts, artwork, photographs, audiovisual effects, text contained within and patent, copyright, trademark, trade secret and any other intellectual property rights therein) are owned by us. The Website is protected by copyright, trademark and other laws of both the United States and foreign countries and may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any unauthorized commercial purpose, or used in any manner other than as permitted
by these Terms, without our express prior written consent in each instance. You agree not to engage in any reverse engineering, de-compiling or other activities designed to view the source code for the Website and are prohibited from reverse engineering, de-compiling or otherwise engaging in activities designed to view the source code thereof.
Feedback. In the event you provide us with any feedback about the Website, including, without limitation, any errors, flaws, issues, suggestions or otherwise (collectively, “Feedback”), you hereby assign to us any and all rights, title and interest in and to the Feedback, including, but not limited to, the right to use such Feedback in any manner we deem appropriate. To the extent any Feedback may not be assigned to us, whether under any applicable law or otherwise, you agree to provide us with an exclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, worldwide license to use such Feedback in any manner we deem appropriate.
User Data: “User Data” means any communications, materials, data and other information you upload, post or otherwise transmit through the Website, including, without limitation, any information related to your transactional, usage or other data with respect to the Website or any other third party platform you have authorized to interface with the Website.
Responsibility for Interactions and Adherence to Policies. You are solely responsible for your
interactions with any other parties with whom you interact through the Website. You acknowledge that we have various policies in place regarding use of the Website that are intended to promote a respectful environment for all Users, such as, but not necessarily limited to, policies regarding content submitted, interactions with other Users, respect for intellectual property rights and billings and refunds. We reserve the right, but have no obligation, to become involved in any way with any disputes that may arise between you and other Users or any other parties with whom you interact through the Website.
Releases for Disputes and Use of Third Party Information. You hereby release us, and our officers,
directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands and
damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any of the following: any dispute that arises between you and one or more other Users or any other parties with whom you interact through the Website, and any use by us of third party information.
Third Party Sites; Advertising.
Links to Third Party Sites; Advertisers. We may provide links on the Website to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. We make no representation or warranty regarding any content, goods or services provided by any third party even if linked from our Website, and we will not be liable for any claim relating to any third party content, goods or services. The linked sites are not under our control and may collect data or solicit personal information from you. We are not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply our endorsement of these linked sites.
Seeking to Take Down Infringing Content.
We reserve the right to terminate without notice any User’s access to the Website if that User is determined by us to be a “repeat infringer.” In addition, we accommodate and do not interfere with standard technical measures used by copyright owners to protect their materials. Without limiting the foregoing, it is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you believe that your work has been copied and posted on any Website in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Website of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for our
Copyright Agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org.
Updates to the Service.
You understand that the Website undergoes frequent changes and that the Website may not always be available for various reasons, such as, for example, downtime due to maintenance. We may require that you accept updates to the Website in order to continue using the Website. You acknowledge and agree that we may update the Website without notifying you.
Disclaimer; Limitations; Waivers on Liability; Indemnification.
Disclaimer of Warranties.
Limitations; Waivers of Liability.
Indemnification. You agree to defend, indemnify, save and hold the RESTAURANT365 Parties harmless from any claims, losses, damages and liabilities, including legal fees and expenses, arising out of (a) your use or misuse of the Website, (b) any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein, (c) your use or access of any third party software or service utilized in connection with the Website, (d) your violation of any applicable laws or any infringement by you, or any third party acting on your behalf, of any intellectual property, real property, privacy or other right of any third party, or (e) any intentional misconduct or negligence by you in using the Website. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify RESTAURANT365 Parties and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your allowed use of the Website.
How to Handle Disputes.
General. If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and RESTAURANT365 agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or use of our Website (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 7, you and RESTAURANT365 agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 7, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND RESTAURANT365 AGREE THAT ANY CLAIM FILED BY YOU OR BY US IN SMALL CLAIMS COURT OR BY US RELATED TO PROTECTION OF OUR OR ANY OF OUR LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 7.
RIGHT TO OPT OUT OF BINDING ARBITRATION. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION IN THIS SECTION 7, YOU MUST NOTIFY US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO: Restaurant365 attention: Legal Department, 500 Technology Drive, Suite 200, Irvine, CA 92618 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME (IF APPLICABLE), AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or RESTAURANT365 elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 7 govern in the event they conflict with the rules of the arbitration organization selected by the parties the arbitration organization selected by the parties.
Arbitration Procedures. Because the Website provided to you by us concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. The FAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. Notwithstanding the foregoing, in no event will we be liable to you for any of your attorney fees.
Location of Arbitration. You or RESTAURANT365 may initiate arbitration in the State of California.
Severability. If any clause within this Section 7 is found to be illegal or unenforceable, that clause will be severed from this Section 7 and the remainder of this Section 7 will be given full force and effect.
Survival. This Section 7 shall survive any termination of the Terms.
Assignment. We may assign any of our rights or delegate any of our obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under these Terms without our prior written consent, and any purported assignment or delegation in violation of this Section is null and void.
specifically set forth in these Terms, no representations, statements, consents, waivers or other acts or omissions by us shall be deemed a modification of these Terms nor legally binding, unless documented in physical writing, hand signed by you and our duly appointed officer.
Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to RESTAURANT365 are of a unique and irreplaceable nature, the loss of which may irreparably harm us and which cannot be replaced by monetary damages alone, so that we shall be entitled to seek injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Website, exploitation of any advertising or other materials issued in
connection therewith or exploitation of the Website or any content or other material used or displayed through the Website and agree to limit your claims to claims for monetary damages, limited by Section 7.
Force Majeure. RESTAURANT365 shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond our control, such as acts of God, war, terrorism, pandemics, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.
notwithstanding its conflicts of law provisions.