Effective: 2nd April 2018
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. SareFood may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services and such supplemental terms will be disclosed to you in separate disclosures or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
SareFood may amend the Terms from time to time. Amendments will be effective upon SareFood's posting of such updated Terms on its website or applications. Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If you do not wish to consent to the changes in the Terms, you may no longer use the Services.
BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST SAREFOOD ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION AGREEMENT. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST SAREFOOD, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST SAREFOOD BY SOMEONE ELSE.
Agreement to Binding Arbitration Between You and SareFood.
You and SareFood agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and SareFood, and not in a court of law.
You acknowledge and agree that you and SareFood are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and SareFood otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and SareFood each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Missouri.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (a) a retired judge, or (b) an attorney specifically licensed to practice law in the State of Missouri and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure.
Unless you and SareFood otherwise agree, the arbitration will be conducted in the County of St. Louis, State of Missouri. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions in Section 1 above, regarding consent to be bound by amendments to these Terms, if SareFood changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing SareFood written notice of such rejection within thirty (30) days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o SareFood.Com, LLC or (b) by email from the email address associated with your Account to: @sarefood.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to the Arbitration Section 2 of the Terms. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and SareFood in accordance with the Terms as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Section 2 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Terms or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Terms; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration (and this will not be subject to the terms of this Arbitration Agreement), and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
The Services comprise mobile applications and related services (each, an "Application", collectively, the "Applications") which enable users to arrange and schedule food services (which may include, but not be limited to, food preparation services and/or delivery services), including with third party providers which are under agreement with SareFood ("Third Party Providers"). Unless otherwise agreed by SareFood in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN FOOD SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH SAREFOOD AS A PROVIDER OF FOOD SERVICES.
Subject to your compliance with these Terms, SareFood grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (a) access and use the Applications on your personal device solely in connection with your use of the Services; and (b) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by SareFood and SareFood's licensors.
You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Services; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by SareFood; (c) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (d) link to, mirror or frame any portion of the Services; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (f) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under: (a) certain of SareFood's subsidiaries and affiliates; or (b) independent Third Party Providers, including food preparers and delivery drivers.
Third Party Services and Content.
The Services and all rights therein are and shall remain SareFood's property or the property of SareFood's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (a) in or related to the Services except for the limited license granted above; or (b) to use or reference in any manner SareFood's company names, logos, product and service names, trademarks or services marks or those of SareFood's licensors.
4.Access and Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to SareFood certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by SareFood. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by SareFood in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes. You may not, in your access or use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
Text Messaging and Telephone Calls.
Referrals and Promotional Codes.
SareFood may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Services and/or a Third Party Provider's services, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that SareFood establishes. You agree that Promo Codes: (a) must be used for the intended audience and purpose, and in a lawful manner; (b) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by SareFood; (c) may be disabled by SareFood at any time for any reason without liability to SareFood; (d) may only be used pursuant to the specific terms that SareFood establishes for such Promo Code; (e) are not valid for cash; and (f) may expire prior to your use. SareFood reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that SareFood determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of the Terms.
User Provided Content.
SareFood may, in SareFood's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to SareFood through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to SareFood, you grant SareFood a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and SareFood's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (a) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant SareFood the license to the User Content as set forth above; and (b) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor SareFood'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 agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by SareFood in its sole discretion, whether or not such material may be protected by law. SareFood may, but shall not be obligated to, review, monitor, or remove User Content, at SareFood's sole discretion and at any time and for any reason, without notice to you.
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. SareFood 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.
You understand that use of the Services may result in charges to you for the services you receive ("Charges"). SareFood will receive and/or enable your payment of the applicable Charges for services obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.
All Charges and payments will be enabled by SareFood using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that SareFood may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by SareFood.
As between you and SareFood, SareFood reserves the right to establish, remove and/or revise Charges for any or all services obtained through the use of the Services at any time in SareFood's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. SareFood will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. SareFood may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee. SareFood may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and SareFood will collect payment of those charges from you, on the Third Party Provider's behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services received by you from such Third Party Provider at the time you receive such services, and Charges you incur will be owed to the Third Party Provider. SareFood will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to SareFood or its affiliates, where SareFood is solely liable for any obligations to Third Party Providers. SareFood does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by SareFood (on SareFood's website, in the Application, or in SareFood's marketing materials) to the effect that tipping is "voluntary,""not required," and/or "included" in the payments you make for services provided is not intended to suggest that SareFood provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
6.Disclaimers; Limitation of Liability; Indemnity
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."SAREFOOD DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SAREFOOD MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SAREFOOD DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
SAREFOOD SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SAREFOOD OR A THIRD PARTY PROVIDER, EVEN IF SAREFOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SAREFOOD SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (a) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (b) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF SAREFOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAREFOOD SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SAREFOOD'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULEFOODSERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT SAREFOOD HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY FOOD SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SAREFOOD'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW AND TO THE EXTENT PERMITTED BY LAW SHALL NOT EXCEED THE AMOUNT OF THE CHARGES GIVING RISE TO SUCH CLAIM. THIS PROVISION SHALL HAVE NO EFFECT ON SAREFOOD'S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold SareFood and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (a) your use of the Services or services obtained through your use of the Services; (b) your breach or violation of any of these Terms; (c) SareFood's use of your User Content; or (d) your violation of the rights of any third party, including Third Party Providers.
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Missouri, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in Section 2 above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Missourians to assert claims under Missouri law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Missouri law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Missouri law to you if you do not otherwise reside in Missouri. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitral disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
SareFood may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your Account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email or telephone). You may give notice to SareFood, with such notice deemed given when received by SareFood, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o SareFood.Com, LLC.
You may not assign these Terms without SareFood's prior written approval. SareFood may assign these Terms without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of SareFood's equity, business or assets; or (c) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, SareFood or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. SareFood's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SareFood in writing. This provision shall not affect the Severability and Survival provisions of Section 2 of these Terms.