Terms of Service
Last Updated: April 1 2023
Welcome to Foody! This Terms of Service Agreement (the “Terms”) governs your use of the www.foodyplus.com website, the Foody+ Mobile application and any other website or application of Foody, its current and future affiliates and agents, and any service, content and resources available or enabled via our website (collectively the “Platform”). PLEASE READ THESE TERMS CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (AS DEFINED BELOW) AND FOODIE WORLDWIDE, INC. (“FOODY,” “WE,” “US” OR “OUR”).
SECTION 19 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT IF YOU DESIRE TO DO SO.
By clicking on the “I ACCEPT” button (or similar), completing the registration process, or otherwise accessing or using the Platform, or any portion thereof, you acknowledge and agree that: (1) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Platform; (2) you are of legal age in your jurisdiction of residence to form a binding contract; and (3) you have the authority to enter into this Agreement (on behalf of yourself personally, and as applicable, any entity that you represent for purposes of this Agreement). The terms “you”, “your”, or “User” refers to you, each visitor of the site, and the individual or legal entity, as applicable, identified as the user when you registered on the website (including users who use Foody to find content (“Customers”) and users who create and post the recipes and other content (“Recipe Content”) to the Platform (“Creators”)). If the individual entering into this Agreement or otherwise accessing or using the Platform is doing so on behalf of, or within such individual’s capacity as a representative, agent, or employee of an entity, such individual and such entity agree that: (i) the terms “you” and “your” as used herein apply to such entity and such individual, and (ii) the individual entering into this Agreement has the right, power, authority and capacity to enter into this Agreement on behalf of such entity.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY FOODY IN ITS SOLE DISCRETION AT ANY TIME. Foody reserves the right to modify this Agreement or its policies relating to the Platform at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Platform after any such changes constitutes your agreement to such changes.
1. HOW THE PLATFORM WORKS. Foody+ is a freemium subscription service that provides access to recipes, food communities, meal planning and grocery shopping tools for customers. Users may use a free account or subscribe to a paid service for access to premium content and features. For more information about the service, visit www.foodyplus.com. Foody+ on occasion also partners with Creators to create content and communities.
UNLESS OTHERWISE DELINATED IN WRITTEN FORM, CREATORS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF FOODY. FOODY DOES NOT EMPLOY OR RETAIN CREATORS. YOU HEREBY ACKNOWLEDGE THAT FOODY DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR THE RECIPE CONTENT, BUT MAY MONITOR AND FACILITATE CERTAIN ASPECTS OF INTERACTIONS FACILITATED THROUGH THE PLATFORM.
2. USE OF THE PLATFORM. The Platform, and any parts thereof, are protected by copyright laws throughout the world. Subject to this Agreement, Foody grants you the right to access and use the features and functionality of the Platform, as well as a limited license to use the Platform to offer or obtain access to Recipe Content. Unless otherwise specified by Foody in a separate license, your right to use the Platform is subject to this Agreement.
2.1 Updates and Modifications. Foody may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the Platform (“Updates”). These Updates may be automatically implemented without providing any additional notice or receiving any additional consent. Under this Agreement, you consent to these automatic updates. If you do not want such Updates, your exclusive remedy is to terminate your Account (as defined below). If you do not terminate your Account, you will receive Updates automatically. Your continued use of the Platform is your agreement to this Agreement with respect to the Platform, including all Updates. Foody reserves the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of the Platform; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, or logo (including images, text, page layout or form) of Foody; (c) you shall not use any metatags or other “hidden text” using Foody's name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of (i) the Platform, and with respect of Customer, (ii) the Recipe Content, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Platform to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Platform; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Platform or use the Platform in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Platform, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Platform, or interfering or attempting to interfere with use of the Platform by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Platform. Any unauthorized use of the Platform terminates the licenses granted by Foody pursuant to this Agreement. Any future release, Update or other addition to the Platform shall be subject to the Agreement. Foody, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use, or suspected unauthorized user, of the Platform terminates the rights and licenses granted by Foody pursuant to the Agreement. You agree to indemnify “Foody Parties” (as defined in Section 13 below) in the event of any claims against Foody based on or arising from your violation of the foregoing.
3.1 Registering Your Account. In order to access the features of the Platform, including as a Customer or Creator, you may be required to become a registered user on the Platform (“Account”). By registering your account with us and connecting with Stripe, you agree to be bound by our Terms and the Stripe Connected Account Agreement.
3.2 Registration Data. In registering an Account through the Platform, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Platform by minors. You may not share your Account or password with anyone, and you agree to (x) notify Foody immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Foody has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Foody has the right to suspend or terminate your Account at any time for any reason or for no reason and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the Platform if you have been previously removed by Foody, or if you have been previously banned from the Platform.
3.3 Social Networking Site. If you access the Platform through a social network service (“SNS”), as part of the functionality of the Platform, you may link your Account with a SNS, by allowing Foody to access your SNS, as is permitted under the applicable terms and conditions that govern your use of each SNS. You represent that you are entitled to grant Foody access to your SNS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS. By granting Foody access to any SNS accounts, you understand that Foody may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Platform that you have provided to and stored in your SNS account (“SNS Content”) so that it is available on and through the Platform. Unless otherwise specified in this Agreement, all SNS Content shall be considered to be User Content (as defined below). Depending on the SNS account you choose and subject to the privacy settings that you have set in such SNS account, personally identifiable information that you post to your SNS account may be available on and through the Platform.
4. FEES AND PURCHASE TERMS.
4.1 Payment Terms for Customers.
i. Fees. Customer agrees to pay all fees associated with Customer’s Account (collectively “Fees”). Fees associated with your subscription will be made available to you at or before the time of purchase on our Platform. You, as a Customer, will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Foody from any and all taxes, including sales tax, based on any payments made by you via the Platform. Foody does not make any representation or render any advice as to the potential tax implications of any payments made via the Platform, and you should consult your tax professional with regard to the same. Except as otherwise set forth herein or agreed to by Foody, all Fees paid by Customers are non-refundable.
4.2 Third-Party Payment Method. Foody uses Stripe, Apple and Google (“Payment Providers”) as the third-party service providers for payment services (e.g., card acceptance and related services). By purchasing access to the Platform, you agree to be bound by the Payment Providers’ privacy policies and hereby consent and authorize Foody and Payment Providers to share any information and payment instructions you provide with third-party service provider(s) to the minimum extent required to complete your transactions. All information that you provide to us or to Payment Providers must be accurate, current, and complete. By purchasing access to Recipe Content on the Platform, you authorize Foody to charge your payment card (“Payment Method”) in accordance with this Section 4. We may place a hold on your Payment Method, in which case you will be notified of such hold at the time you initiate a transaction on the Platform. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT METHOD USED TO PAY ANY FEES.
4.3 Promotions. Any promotions that provide premium access to the Platform, discounted purchases, or credits toward your Account must be used within the specified time of the trial or promotion. At the end of the specified period, your use of that Platform service will expire and any further use of such service is prohibited unless you pay all applicable fees.
5. OWNERSHIP AND INTELLECTUAL PROPERTY.
5.1 Platform. You agree that Foody and its suppliers own all rights, title and interest in the Platform, and all parts thereof. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform.
5.2 Trademarks. Foody will own and retain all right, title and interest in its trademarks, graphics, logos, service marks, trade names and other brand elements (collectively, “Trademarks”) used on or in connection with the Platform. Such Trademarks may not be used without permission, including in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Platform are the property of their respective owners.
5.3 Your Content. Foody does not claim ownership of Your Content. However, when you as a User post or publish Your Content on the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.4 License to your Content. You grant Foody a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, host, display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, providing, developing and improving the Platform for you and to our other Users; researching and developing new services; and otherwise in connection with the platform, including without limitation for promotional or marketing purposes. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Foody, are responsible for all of Your Content that you Make Available on the Platform. The Platform may contain User Content provided by other Users. Foody is not responsible for and does not control User Content. Foody has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Users at your own risk.
5.5 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Foody in our sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
5.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Foody through its suggestion, feedback, wiki, forum or similar pages or via email (“Feedback”) is at your own risk and that Foody has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Foody a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform. You also acknowledge and agree that if and to the extent the material submitted by you identifies you by name, likeness, voice or otherwise (“Name and Likeness”), the foregoing license granted by you will automatically be deemed to cover and extend our use of your Name and Likeness in connection with our use of the material submitted by you. In addition, you warrant that all so-called “moral rights” have been waived.
6. USER CONDUCT. As a condition of use, you agree not to use the Platform for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the Platform that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) impersonates any person or entity, including any employee or representative of Foody; or (vi) interferes with or attempts to interfere with the proper functioning of the Platform or uses the Platform in any way not expressly permitted by the Agreement.
7. THIRD-PARTY SERVICES.
7.1 Third-Party Services. The Platform may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left the Platform and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Ads are not under the control of Foody. Foody is not responsible for any Third-Party Websites or Third-Party Ads. Foody provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or their products or services. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our website, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 Third-Party Content. The Platform may utilize or include content, software, and other copyrighted materials provided by third parties (“Third-Party Content”). Your use of such Third-Party Content is governed by their respective terms and conditions. By Accepting this Agreement, you are also accepting the additional terms and conditions of the third parties. Foody expressly disclaims any and all warranties in connection with Third-Party Content, and shall have no liability in connection therewith.
7.3 Open Source Software. The Platform may include or incorporate third- party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Platform is provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
8. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Foody’s policy to terminate membership privileges of any Users who repeatedly infringe copyright upon prompt notification to Foody by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on or within the Platform 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 Platform 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 Foody’s Copyright Agent for notice of claims of copyright infringement is as follows: [Daniel Stitzel, CEO, 450 Townsend Street, San Francisco CA 94107 USA.
9. FOODY COMMUNICATIONS.
9.1 Generally. By entering into this Agreement or using the Platform you agree to receive communications, including marketing and promotional communications, from us, via e-mail, or phone. You agree that for all of our communications, message and data rates may apply.
9.2 Email Marketing Communications. If we send marketing or promotional email communications, you will have the ability to opt out of receiving such communications by following the instructions in this section. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE PLATFORM OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF RECEIVING PROMOTIONAL EMAIL COMMUNICATIONS FROM US, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
9.3 Promotional SMS and/or Text Messages. You may have the option to provide us with your contact information and sign up for an SMS messaging service (a “SMS Messaging Service”) on the Platform. When you opt-in to an SMS Messaging Service, you may consent to receive texts (including marketing texts) from us at the mobile number you’ve provided at opt-in, including, but not limited to: communications concerning new and existing features of our Platform, and communications concerning promotions run by us or our partners. If you opt in to one of our SMS Messaging Services, we will send you an SMS message to confirm your sign up. You can cancel the SMS Messaging Service at any time. Just text “STOP” to the telephone number or short code we used to contact you. We may change any short code or telephone number we use to operate our SMS service at any time. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO THE TELEPHONE OR SHORT CODE WE USED TO CONTACT YOU. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE PLATFORM OR RELATED SERVICES.
9.4 Electronic Communications. The communications between you and Foody may take place via electronic means, whether you visit the Platform or send us e-mails, or whether we post notices on the Platform, or communicate with you via e-mail or text message. For contractual purposes, you (i) consent to receive communications from Foody in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Foody provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
10.1 Violations. If Foody becomes aware of any possible violations by you of the Agreement, Foody reserves the right to investigate such violations. If, as a result of the investigation, Foody believes that criminal activity has occurred, Foody reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Foody is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform, including Your Content, in Foody’s possession in connection with your use of the Platform, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Foody, its Users and Registered Users or the public, and all enforcement or other government officials, as Foody in its sole discretion believes to be necessary or appropriate.
10.2 Breach. In the event that Foody determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the Platform, Foody reserves the right to:
i. Delete any of Your Content provided by you or your agent(s) to the Platform;
ii. Warn you via e-mail (to any e-mail address you have provided to Foody) that you have violated the Agreement;
iii. Discontinue your registration with the Platform;
iv. Discontinue your access to the Platform;
v. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
vi. Pursue any other action which Foody deems to be appropriate.
11. INDEMNIFICATION. You agree to indemnify and hold harmless Foody, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Foody Parties”) from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Platform or any Recipe Content; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any other Users; and (d) your violation of any applicable laws, rules or regulations. Foody reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Foody in asserting any available defenses. This provision does not require you to indemnify any of Foody Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement or your access to the Platform.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM AND THE RECIPE CONTENT IS AT YOUR SOLE RISK, AND THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FOODY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PLATFORM.
i. FOODY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM OR RECIPE CONTENT WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE PLATFORM IS ACCURATE, COMPLETE, OR CURRENT; (3) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (4) ANY ERRORS ON THE PLATFORM WILL BE CORRECTED; (5) YOUR USE OF THE PLATFORM WILL NOT EXPOSE YOUR HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; AND (6) THE PLATFORM WILL BE COMPATIBLE WITH YOUR DEVICES.
ii. ANY CONTENT, INCLUDING RECIPE CONTENT, ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, PERSONAL PROPERTY, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
iii. THE PLATFORM MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FOODY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE PLATFORM, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF PLATFORM.
12.2 Food Preparation and Allergens. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE SAFE AND PROPER HANDLING, WASHING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF ANY FOOD PREPARED IN CONNECTION WITH THE RECIPE CONTENT PROVIDED BY CREATORS HEREIN. AS DETERMINED BY THE US FOOD AND DRUG ADMINISTRATION, THE EIGHT MAJOR ALLERGENS INCLUDE WHEAT, EGG, SOY, MILK, TREENUTS, PEANUTS, FISH, AND SHELLFISH. YOU UNDERSTAND THAT RECIPE CONTENT MAY CONTAIN SOME OR ALL OF THE EIGHT MAJOR ALLERGENS LISTED. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE RECIPE CONTENT AND ANY ASSOCIATED INGREDIENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING FOOD IN CONNECTION WITH THE RECIPE CONTENT. FOODY DOES NOT REPRESENT OR WARRANT THAT THE NUTRITION FACTS, AND OTHER RECIPE CONTENT INFORMATION ON OUR PLATFORM IS ACCURATE OR COMPLETE SINCE THIS INFORMATION IS PROVIDED BY THE CREATOR.
12.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FOODY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FOODY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE PLATFORM OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13. LIMITATION OF LIABILITY; INSURANCE.
13.1 DISCLAIMER OF CERTAIN DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOODY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT FOODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOODY PARTIES DO NOT GUARANTY THE QUALITY OR SUITABILITY, OF ANY RECIPE CONTENT, AND EACH USER OF THE PLATFORM AGREES THAT THE ENTIRE RISK ARISING OUT OF HIS/HER USE OF THE PLATFORM, AND RECIPE CONTENT REMAINS SOLELY WITH SUCH USER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. FOODY WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE PLATFORM OR ANY RECIPE CONTENT.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FOODY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE TO FOODY DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100). THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
13.3 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Foody and you. Notwithstanding the foregoing, the limitations and disclaimer in this section do not purport to limit liability or alter a User’s rights as a consumer that cannot be excluded under applicable law.
14. RELEASE. You hereby release Foody Parties from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Platform or Recipe Content, including but not limited to, any interactions with or conduct of other Users of the Platform, or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Platform. Should you, as a Customer, have a dispute with respect to the Platform or any Recipe Content, you may address such dispute with Foody, but the Creator retains sole responsibility for issues arising in connection with Recipe Content. You, as a Customer, hereby agree to release Foody Parties from any losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from or in any way connected with such disputes and your dealings with Creators. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
15. TERMINATION AND DEACTIVATION.
15.1 Termination of Account. This Agreement will remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time for any reason through the settings in your Account on the Platform. Foody may terminate or suspend your Account if (a) you are in breach of the Agreement; (b) if Foody decides in its sole discretion to stop facilitating the provision of the applicable Platform or Recipe Content; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Foody will not have any liability whatsoever to you for any termination or suspension of your Account or related deletion of your information.
15.2 Effect of Termination or Deactivation. Deactivation includes removal of your access to the Platform and barring of further use of the Platform. Upon Deactivation of the Platform, your right to use such Platform will automatically terminate immediately. Foody will not have any liability to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of the Agreement or the Platform, including without limitation, ownership provisions, warranty disclaimers, indemnification, and limitation of liability. For users who have paid for service and elected to termination their account, they will continue to have access to the service until the expiration of their current paid period.
16. INTERNATIONAL USE. The Platform may be accessed from countries around the world and may contain references to services and content that are not available in your state or country. These references do not imply that Foody intends to announce such services and content in your state or country. The Platform is controlled and offered by Foody from its facilities in cities and states where it chooses to operate in the United States of America. Foody makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other states or countries do so at their own volition and are responsible for compliance with local law.
17. ARBITRATION AGREEMENT. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Foody and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Platform, to any Recipe Content accessed through, or provided to, the Platform, or to any aspect of your relationship with Foody, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Foody may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
17.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Legalinc Corporate Services Inc., 651 N Broad ST Suite 206, Middletown, DE 19709. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Foody will pay them for you. In addition, Foody will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
17.3 You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.4 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Foody. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.5 Waiver of Jury Trial. YOU AND FOODY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Foody are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1(Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.6 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
17.7 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to email@example.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Foody username (if any), the email address you used to set up your Foody account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.8 Severability. Except as provided in Section 19.5 (Waiver of Jury Trial), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.9 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Foody.
17.10 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Foody makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Foody at the following address: Legalinc Corporate Services Inc., 651 N Broad ST Suite 206, Middletown, DE 19709.
18. GENERAL PROVISIONS.
18.1 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Foody’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Foody shall have the right to freely assign this Agreement, in whole or in part, without your prior consent.
18.2 Force Majeure. Foody shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.3 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, or in the event this Section 20.4 is held to be unenforceable for any reason, both you and Foody agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in California.
18.5 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
18.6 Notice. Where Foody requires that you provide an e-mail address, you are responsible for providing Foody with your most current e-mail address. In the event that the last e-mail address you provided to Foody is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Foody’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Foody at the following address: email@example.com; Foodie Worldwide, Inc. 450 Townsend Street, San Francisco CA 94107 USA.
18.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.8 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.9 Export Control. You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform, and any other applicable laws. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, 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 also will not use the Platform for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Foody are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Foody products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.10 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.11 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.