NOTE: SECTION 16 BELOW CONTAIN A MANDATORY ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS AND RIGHT TO JURY. BY AGREEING TO THESE TERMS, YOU AGREE TO AND ARE BOUND BY THESE PROVISIONS.
If you access, install or use any of our Sites or access any information, function, or Services available or enabled by EatStreet or complete the EatStreet account registration process, you, hereby represent and warrant that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with EatStreet; and
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms ?User? and ?Users? refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.About EatStreet:
EatStreet serves as a marketplace and delivery service, connecting hungry consumers with local merchants. EatStreet?s software permits consumers to place orders for food and/or other goods from various merchants, either for delivery or pick-up. We use a network of independent third-party contractors who provide food, convenience and grocery and delivery services.
The merchants (?Merchants?) and third-party delivery service providers (?DSPs?) available on our Sites operate independently of EatStreet. We do not assess the suitability, legality or ability of any merchant, business or independent delivery service provider. EatStreet is not liable or responsible for the merchants? food preparation or safety, and we do not verify their compliance with applicable laws or regulations. Furthermore, EatStreet does not guarantee the quality of the food, beverages, goods or services the Merchants provide and sell through our Sites.
In addition, EatStreet is not liable or responsible for delivery services provided by, errors, or misrepresentations made by any independent delivery service providers.
1. Order Payment, Charges and Fees: You agree to pay all prices/fees/taxes you incur by using our Site or Services. We do not assume any liability for the actions or products of any Merchants, DSPs, or other third-parties taking part in the production or delivery of your order. If you choose cash as your method of payment, you agree to pay the Merchant in the form of U.S. dollars at the time of delivery. By choosing the credit card option, you represent and agree that you are authorized to use the credit card number you provide. You must include all information we request, and it must be valid and must enable us to obtain payment from you (e.g. valid credit card information). EatStreet may seek pre-authorization of your credit card for verification purposes. All payments will be processed by EatStreet or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your Use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information. If EatStreet does not receive payment from your credit card company, you agree to pay the amount due by other means when EatStreet requests it.
You understand that: (a) the prices for menu or other items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold; (b) unless otherwise required by law, EatStreet has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) EatStreet reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in- store totals. In those situations, EatStreet reserves the right to charge your payment method the final purchase charges after checkout. You are liable for all User applicable transaction taxes on the Services provided under this Agreement.
EatStreet may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Commission Fees, Delivery Fees, Service Fees, and Surge Fees. EatStreet may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.
2. Promotions: EatStreet at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by EatStreet; (iii) are subject to the specific terms that EatStreet establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in EatStreet?s Promotion Terms and Conditions. EatStreet reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that EatStreet determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. EatStreet reserves the right to modify or cancel an offer at any time. EatStreet?s Promotion Terms and Conditions (the current version of which is available at https://eatst.force.com/customers/s/article/Promotional-Terms-and-Conditions and which is incorporated in this Agreement by reference) apply to all promotional offers. You agree that we may change EatStreet?s Promotion Terms and Conditions at any time. EatStreet may also offer gratuitous credits, including EatStreet Cash, which can be used for the Services. Any credit issued by EatStreet is valid for 12 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.
3. Return and Delivery Policy: Charges paid by you for completed and delivered orders are final and non-refundable. EatStreet has no obligation to provide refunds or credits, but may grant them, in each case at EatStreet's sole discretion. However, if an order is not correct, please contact the Merchant immediately to let them know of the mistake. If you are unsatisfied with your order, please email EatStreet via email at: email@example.com. Please include all information, including order number and Merchant name. If this occurs, EatStreet may, in its sole discretion, issue credit towards a future purchase from us. No cash refunds will be issued. All issues relating to an order must be reported to EatStreet within 24 hours after the order is placed in order to be considered for any credit from EatStreet.
4. Responsibility of Merchant or DPS. The Merchant or DPS is responsible for preparing and delivering any items or orders to you. The risk of loss transfers to you upon our delivery of the appropriate information to the DPS; you must file any claims directly with the Merchant or DPS. EatStreet is not responsible for any issues that may arise during the delivery process including orders that are not delivered. If an issue with your order arises, please contact the Merchant immediately.
5. Transactions Involving Alcohol. You may have the option to request delivery or pick-up of alcohol products in some locations and from certain Merchants. You agree that you will only order alcohol products if you are 21 years of age or older. For delivery orders you also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the Driver delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither EatStreet nor the driver can accept your order of alcohol products, and the order will only be delivered if the Merchant accepts your order. EatStreet and its Drivers reserve the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, if you are visibly intoxicated, if the location for delivery is prohibited by law or any other legally justifiable means. If the Driver is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable re-stocking fee up to 50% greater than the alcohol total order amount.
6. Ownership of the Site. With the exception of User Content (defined below), all pages and content within the Site and any material made available for download are the property of or licensed to EatStreet. The Sites and all content are protected by United States and international copyright and trademark laws. The contents of the Sites, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through the Sites ("Content") may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved by EatStreet, including the provision of services or products to EatStreet, or in connection with a business relationship with EatStreet. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, Content or other proprietary information (including; images, text, page layout, or form) of EatStreet without our express written consent. You may not use automated systems (e.g., robots, spiders, etc.) to access the Sites. You agree not to collect personally identifiable information of other users of the Sites or to sell or otherwise exploit that information. You agree not to use the Sites in any manner that could damage, disable, overburden or impair the Sites.7. Access and Use of the Services.
a. User accounts You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. EatStreet is intended for users who are 18 years of age or older. If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites or Services, and your legal guardian must read and agree to this Agreement prior to your use of the Sites or Services. If you are under the age of 13, you are not authorized to use or submit any personal information to EatStreet. If you are using the Sites or Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company.
You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. 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. You are responsible for maintaining the confidentiality and security of your Account including your password. Should you suspect that any unauthorized party may be using your password or account, you will notify EatStreet immediately. EatStreet will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by EatStreet or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or EatStreet has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, EatStreet 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). We may enable or require you to use a single pair of login credentials to use the EatStreet Services. You agree not to create an account or use the Services if you have been previously removed by EatStreet, or if you have been previously banned from use of the Services.
b. User Conduct. Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, EatStreet employees, or our community.
You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
You will only access the Services using means explicitly authorized by EatStreet.
You will not use another User?s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
You will not use the Services to cause nuisance, annoyance or inconvenience.
You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, User or Driver, unless EatStreet has given you prior permission to do so in writing.
You will not copy or distribute the intellectual property or any content displayed through the Services, including Merchants? menu content and reviews, for republication in any format or media.
You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
You will use the Sites and Services only for your own use and will not directly or indirectly resell, license or transfer the Sites, Services or content displayed by the Services to a third party.
You will not use the Services in any way that could damage, disable, overburden or impair any EatStreet server, or the networks connected to any EatStreet server.
You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any EatStreet server.
You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures EatStreet may use to prevent or restrict access to the Services or use of the Services or the content therein.
You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.
You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
You will not try to harm other Users, EatStreet, or the Services in any way whatsoever.
You will not engage in threatening, harassing, racist, sexist or any other behavior that EatStreet deems inappropriate when using the Services.
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 Services.
You will not abuse our promotional or credit systems, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.
You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
c. User-Submitted Content. EatStreet may, in EatStreet?s sole discretion, provide you with interactive features and opportunities from time to time that allow you to submit content on our Sites, through communications with you through textual, audio and/or visual, including, without limitation, email or text (?SMS?), or otherwise in connection with your use of our services or submission of entries for competitions and promotions (?User Content?). User Content includes, without limitation, feedback, user ratings, user reviews, images, comments, or user profiles.
You are solely responsible for the User Content that you submit, upload, post, publish, and/or otherwise make available to EatStreet.
By transmitting, submitting or otherwise making available User Content to EatStreet, you agree as follows:
You represent and warrant that you own or have the necessary permissions, rights, licenses and releases necessary to use all User Content that you submit, upload, post, publish, and/or otherwise make available to EatStreet;
You represent and warrant that neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor EatStreet?s use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation;
You grant EatStreet (1) an irrevocable, transferable, royalty-free, perpetual, unrestricted, non-exclusive worldwide license to use, copy, display, reproduce, distribute, modify, remove, publicly perform, translate, create derivative works from, and/or otherwise use or exploit in any manner User Content for any purpose, including commercial purposes, and in any form or medium without compensation to you or any other person or entity and without notification to and/or approval or consent by you;
You grant EatStreet a license to publicly use your name, initials and/or other user profile information in connection with your User Content without notification to and/or approval by you;
You will not provide any User Content if you are under the age of 13;
You will not provide any User Content that violates any applicable law;
You will not provide any User Content that violates any third party?s rights, including copyright, trademark, patent, privacy, publicity, trade secret, or any other intellectual, or proprietary right;
You will not provide any User Content that is false, misleading, libelous, malicious, or inaccurate;
You will not provide any User Content that is threatening, abusive, obscene, profane, defamatory, libelous, harmful to minors, hateful, violent, obscene, pornographic, or racially, sexually, religiously, or otherwise objectionable and offensive;
You will not provide any User Content that is factually incorrect;
You will not impersonate any person or entity, or otherwise mislead as to the origin of any User Content;
You hereby agree that EatStreet has the right to determine whether any or all of your User Content is appropriate and/or complies with these Terms, and has the right to remove any and/or all of your User Content.
EatStreet takes no responsibility for liabilities or losses resulting from any User Content, and does not expressly or implicitly endorse any User Content. User Content, in any form, does not represent the views of EatStreet or any affiliate or partner of EatStreet. We do not guarantee the accuracy, completeness, or usefulness of any User Content.
We do not, and cannot, pre-screen or monitor all User Content submitted or transmitted to EatStreet. However, we or technology we employ, may monitor, moderate, and/or record your User Content at our discretion. We reserve the right to change or remove, in part or full, any User Content that in our sole opinion violates, or is alleged to violate, the law or the terms in this Agreement.
d. User Feedback, Rating and Reviews. As EatStreet respects your rights to your ideas, please do not submit any confidential ideas, information, or suggestions in any form to EatStreet or any of its affiliates. For any ideas, information, or suggestions you do submit, regardless of what your communication regarding your submissions says, you understand that your submissions are voluntary and at your own risk and the following terms shall apply to your submissions: (i) you represent and warrant that you have all rights necessary to submit your submission and you hereby grant to EatStreet 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 submissions and their contents, without any compensation to you; (ii) EatStreet has no obligation to review your submissions; (iii) EatStreet may implement and distribute any portion of your submissions and their contents for any purpose in any way, without any compensation to you; and (iv) EatStreet has no obligation to keep your submissions confidential. To the extent that you are asked to rate and post reviews of Merchants or 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 EatStreet and do not represent the views of EatStreet or its affiliates. EatStreet shall have no 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 through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant or business; (ii) you will not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that company?s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Merchant or business; (iv) any Rating or Review you submit will comply with the Federal Trade Commission?s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your Rating or 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 or otherwise violates this Agreement, we may remove such User Content without notice.
e. Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network?s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. EatStreet does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
9. Consent to Electronic Communications with EatStreet and E-Sign Disclosure. By creating an EatStreet account, you agree to accept and receive communications and documents from EatStreet electronically including those that are legally required to be delivered to you in writing. By creating an EatStreet account, you also demonstrate that you have access to an internet connection or mobile device and have the ability to access and download or view documents as necessary. You consent to the use of an electronic record to document your agreement. You may withdraw your consent to receiving documents electronically by contacting us at the email address below.
10. Text Messaging and Telephone Calls. You agree that EatStreet, Inc. and its subsidiaries, representatives, affiliates, officers and directors, may contact you by telephone or text messages (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice) at any of the phone numbers provided by you or on your behalf in connection with an EatStreet account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from EatStreet at any time, either by replying ?STOP? or texting the word "STOP" to 97394 using the mobile device that is receiving the messages. If you do not choose to opt out, EatStreet may contact you as outlined in its User Privacy Notice, located at https://eatstreet.com/privacy. You agree that EatStreet may contact you using any of the phone numbers you provided in connection with an EatStreet account (including via text or voice-recorded message) or your email address in the case of suspected fraud or unlawful activity.
11. Accuracy and Integrity of Information. Although EatStreet attempts to ensure the integrity and accuracy of the Sites, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Sites and Content thereon. It is possible that the Sites could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Sites by third parties. Information contained on the Sites may be changed or updated without notice. Additionally, EatStreet shall have no responsibility or liability for information or Content posted to the Sites from any non-EatStreet affiliated third parties.
13. Indemnification. You agree to indemnify and hold harmless EatStreet and its officers, directors, employees, against 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 (i) your breach of this Agreement or any representation herein; (ii) your misuse or improper use of EatStreet?s Services or Sites; (iii) your User Content; or (iv) violation by you of any applicable laws, rules or regulations related to your use or access to the Services or Sites. EatStreet reserves the right, at its sole discretion and 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 EatStreet in defending the matter and asserting any available defenses. The provision does not require you to indemnify any Indemnified Party for such party?s gross negligence, fraud, misrepresentation or concealment, suppression or omission of a material fact in connection with the Services or Sites. This Section 13 will survive any termination of your EatStreet account, this Agreement or your access to the Services and/or Sites.
14. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY THE LAW, YOUR USE OF THE SERVICES AND SITES IS ENTIRELY AT YOUR OWN RISK. EATSTREET DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THESE SITES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. EATSTREET SPECIFICALLY DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION OBTAINED THROUGH THE SITE. EATSTREET DOES NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OR CONTENT OBTAINED OR MADE AVAILABLE THROUGH THE SITES, SERVICES, GRAPHICS OR LINKS.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITES AND HYPERLINKED WEBSITES. EATSTREET DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACKUP AND SECURITY. CHANGES ARE PERIODICALLY MADE TO THE SITES AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. YOU AGREE THAT EATSTREET SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING DIRECTLY OR INDIRECTLY FROM ANY SUCH CODE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITES AND OF THE INTERNET.
15. Limitation of Liability Regarding Use of Site. TO THE FULLEST EXTENT PERMITTED BY LAW, EATSTREET AND ITS AFFILIATES, OFFICERS, DIRECTORS, AFFILIATES, VENDORS, OR LICENSORS ARE NEITHER RESPONSIBLE NOR LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER OF ANY KIND OR TYPE (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM PERSONAL INJURY, LOST PROFITS, LOST DATA, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITES, AND/OR ANY HYPERLINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITES, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
16. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights And Requires You To Arbitrate With EatStreet. This Section 16 Shall Be Referred To As The ?Arbitration Agreement.?
You agree that all claims or disputes arising out of the Agreement, relating in any way to your access or use of the Services or Sites, to any advertising or marketing communications regarding EatStreet or the Services, to any products or services sold or distributed through the Site or Services that you received as a User, or to any aspect of your relationship or transactions with EatStreet will be resolved and decided by an arbitrator through binding arbitration and not by a court, judge or jury, 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; (2) you or EatStreet may seek equitable relief in court for infringement or other misuse of intellectual property rights; and (3) claims that are non-arbitrable per the applicable federal statute. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
(a)Informal Resolution. You and EatStreet agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and EatStreet therefore agree that, before either you or EatStreet demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify EatStreet that you intend to initiate an informal dispute resolution conference, email firstname.lastname@example.org, providing your name, telephone number associated with your EatStreet account (if any), the email address associated with your EatStreet account and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party?s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
(b)Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act (?FAA?) in all respects and evidences a transaction involving commerce. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 16(a). If this notice is being sent to EatStreet, it must be sent by email to the counsel who represented EatStreet in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 44 E Mifflin ST, STE 400, Madison, WI 53703. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (?AAA?), which are available at www.adr.org. The arbitrator?s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys? fees. The arbitration proceeding will take place in Madison, Wisconsin, unless otherwise agreed. 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. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and EatStreet. Except as expressly agreed to in Section 16(d) of this Agreement, 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, on an individual basis, 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 award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. 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 EatStreet. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator?s decision and award.
(c)Waiver of Class or Consolidated Actions. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 16(d) OF THIS AGREEMENT, YOU AND EATSTREET AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS ANY CLAIM OR DISPUTE WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN SECTION 16(d). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 16(d). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of this Section 16(c) may only be determined by an arbitrator. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor EatStreet is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 24. This provision does not prevent you or EatStreet from participating in a class-wide settlement of claims.
(d)Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against EatStreet, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with EatStreet and the arbitration provider to implement such a batch approach to resolution and fees.
(e)Opt Out. EatStreet?s updates to these Terms and Conditions do not provide a new opportunity to opt out of the Arbitration Agreement for customers or Users who had previously agreed to a version of EatStreet?s Terms and did not validly opt out of arbitration. EatStreet will continue to honor the valid opt outs of customers or Users who validly opted out of the Arbitration Agreement in a prior version of the Terms. If you are a customer or User who creates an EatStreet account for the first time on or after January 1, 2021, you may opt out of this Arbitration Agreement. If you do so, neither you nor EatStreet can force the other to arbitrate as a result of this Agreement. To opt out, you must notify EatStreet in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your EatStreet username (if any), the email address you currently use to access your EatStreet account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: email@example.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.
(f)Survival and Modification. This Arbitration Agreement will survive any termination of your relationship with EatStreet. Notwithstanding any provision of the Agreement to the contrary, the parties agree that if EatStreet makes any future material changes to this Arbitration Agreement, it will not apply to any individual claim(s) that you have already provided notice of to EatStreet.
(g)Jury Waiver. You understand and agree that by accepting these Terms, you and EatStreet are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section, we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
17. App Stores. You acknowledge and agree that the availability of EatStreet?s mobile applications (?Mobile Applications?) may be dependent on the third party from which you received the application?s license, e.g., the Apple iPhone or Android app stores (?App Store?). You acknowledge and agree that this Agreement is between you and EatStreet and not with the App Store and that EatStreet is responsible for the provision of Services as described in this Agreement including but not limited to (i) the Mobile Application(s), the content thereof, maintenance, support services and warranty therefor, and (ii) addressing any claims relating thereto including product liability claims, any claim that the Services fail to confirm to any applicable legal or regulatory requirement, claims arising under consumer protection, privacy, or similar legislation and intellectual property claims; and all such claims are governed solely by this Agreement and any law applicable to EatStreet as provider of the software. Your use of the Mobile Applications and Services must comply with the relevant App Store terms of service. If you are using the EatStreet Services on an Apple device, you acknowledge and agree that Apple, and Apple?s subsidiaries, are third party beneficiaries of this Agreement, and that upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary. If you are using the EatStreet services on a Google platform you acknowledge and agree that Google, and Google?s subsidiaries, are third party beneficiaries of this Agreement, and that upon your acceptance of the terms and conditions of this Agreement, Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary. Such rights may also accrue to other handset manufacturers and operating systems which participate in the EatStreet Services.
18. Links to Other Sites. EatStreet makes no representations whatsoever about any other website that you may access through this Site. When you access a non-EatStreet site, please understand that it is independent from EatStreet, and that EatStreet has no control over that website or its content. In addition, a hyperlink to a non-EatStreet website does not mean that EatStreet endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third-party sites linked to these Sites, you do this entirely at your own risk.
20. Copyright. The use of a trademark or trade name registered by EatStreet is strictly prohibited. EatStreet respects the intellectual property rights of others, and requires our users to do the same. If you believe your copyright or other rights have been infringed, please submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (?DMCA?) by providing the following information to EatStreet?s Designated Agent who can be reached at firstname.lastname@example.org:
The date of your notification;
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
A description of the copyrighted work claimed to have been infringed;
A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable EatStreet to locate such work;
Your address, telephone number, and email address;
A written statement that the party alleging infringement has a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, its agent or the law;
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS? FEES.
Please note that this procedure is exclusively for notifying EatStreet and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with EatStreet?s rights and obligations under the DMCA, including 17 U.S.C. ? 512(c), but do not constitute legal advice.
25. Choice of Law. This Agreement is governed by the laws of the State of Wisconsin consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
26. Severability. Except as otherwise provided in this Agreement, 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.
27. Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by EatStreet without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party?s successors and permitted assigns.
28. 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. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and EatStreet relating to your work as an employee or independent contractor.
29. Contact Information.
You may contact us about any questions you have relating to these Terms at:
44 E Mifflin ST, STE 400
Madison, WI 53703
Effective Date: July 1st, 2021