As of August 6, 2018
These General Terms and Conditions (“Terms” or “Agreement”) are entered into by and between you and Food Truck Technologies, Inc. (“Food Truck,” the “Company”, “we,” “us,” or “our”). The Terms govern the relationship between Food Truck and you, our site visitor (“you” or “your”), with respect to your access and use of the Company’s (a) hardware, websites, portals, social media pages, channels, and software that link to or otherwise reference these Terms, including but not limited to the Company’s website, www.foodtrucks.com, (collectively, the “Site”) and any associated mobile applications (the “Application” or “Apps”), and (b) any services, products, features, media, functions, content, tools and links contained or offered in connection with the Application and/or any of the Company’s websites (collectively, the "Services"). By visiting, accessing and using the Sites, Apps or Services, including without limitation to (i) accessing, using and/or downloading Information, (ii) sending messages, information, data, text, software or images, or other Information to the Site or the App, or (iii) otherwise using, accessing or purchasing any Services, you agree to accept and abide by these Terms regardless of how you access or use the Site, the App, and/or the Service, whether via personal computers, mobile devices or otherwise. If you do not accept and agree to these Terms, you may not access or use any of the Sites, Applications or Services
These Terms are subject to occasional changes from time to time, and should we make any material changes, we will notify you by prominently posting a notice of the changes on the Sites or Application or by sending you an e-mail communication to the last e-mail address you provided to us. Any changes to these Terms will be effective upon the earlier of our posting of notice of the changes on the Sites or our dispatch of an e-mail notice. In consideration of your use of and access to the Site, the App, and/or the Services (and the promises and obligations herein, and intending to be legally bound), you and Food Truck hereby agree as follows: Your access to and use of the Site, the App, and/or the Services is subject to these Terms, as may be amended from time to time, and all applicable laws and regulations. BY USING THE SITE, THE APP, AND/OR THE SERVICES, YOU AGREE TO AND WILL BE DEEMED TO BE BOUND BY THESE TERMS. If you do not want to be bound by these Terms, do not use the Site, the App, and/or the Services.
Certain areas of the Application, Sites and/or Services (and your access to or use therein) may have different terms, conditions, policies, rules and guidelines, which govern your access to and use of such Products, Applications, Sites and Services (as applicable, the "Additional Terms"). The Additional Terms will be posted (via a link) on the applicable Application, Site or Services and may be modified from time to time. If there is a conflict between these Terms and any Additional Terms for a specific Application, Site or Service, the applicable Additional Terms shall govern and take precedence over these Terms with respect to your use of or access to that Application, Site or Service.
Food Truck, among other things provides information concerning various products and services offered on the Sites or Applications and the opportunity to obtain additional information concerning those products and services or to purchase them. The information available on or through use of the Site, the App, or the Services, including but not limited to data, text, articles, content, software, images, graphics, photographs, audio and video clips, links and references and other materials (collectively, the “Information”) is provided for informational purposes only.
You warrant and agree that you are of the legal minimum purchasing age in the jurisdiction in which you reside to access and use the Sites, Applications and Services. It is your responsibility to check and understand the local laws in your jurisdiction regarding the legal purchasing age in order to purchase, access or use the Applications, Sites or Services. The Company does not warrant or guarantee that compliance with these Terms will be sufficient to comply with your obligations under applicable laws where you reside or where you use the Applications, Sites or Services.
Food Truck connects customers with local food trucks. You may order food from a particular food truck through our Site and/or Application (“Orders”).
Food Truck is not a restaurant nor involved in the preparation of any food or Orders. The food trucks and restaurants operate independently of Food Truck. The food trucks and restaurants are required to federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. Food Truck is not liable or responsible for the restaurants' food preparation or safety and does not verify their compliance with all applicable laws. In addition, Food Truck does not guarantee the quality of what the food trucks, restaurants or other food preparers sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery/takeout services or engage another third party delivery service. Food Truck does not independently verify, and is not liable for, representations made by restaurants regarding their food, including, without limitation, any menu- or restaurant-level descriptors or disclosures
Food Truck shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Site, the App, and/or the Services. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to, (i) posting the revised or additional terms and conditions on the Site and the App, (ii) by sending you an e-mail communication to the last e-mail address you provided to us, and/or (iii) by requiring you to check a box indicating your assent to the updated terms. You are responsible for reviewing the Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by Food Truck to these Terms. ANY ACCESS OR USE OF THE SITE, THE APP, AND/OR THE SERVICES BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than by Food Truck shall be valid or enforceable against Food Truck unless expressly agreed to by Food Truck in a writing signed by a duly authorized officer of Food Truck.
The Applications, Sites and Services are intended solely and only available to individuals who are at least eighteen (18) years of age, who can willingly and knowingly enter into legally binding contracts under applicable law. If you are a minor in the jurisdiction in which you reside, you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites Applications and Services, and your parent or legal guardian must read and agree to these Terms prior to your using the Sites, Applications and Services. Notwithstanding the foregoing, you are not authorized to use the Sites, Applications, or Services if you are under the age of 13. If you are using the Sites, Applications 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 organization.
If you are registering as a business entity, you further represent that you have the authority to bind the business to these Terms and any other related or pertinent agreements. If you do not have such authority, you will be held individually liable for all actions taken under your user ID. You further represent that any party you invite to participate in any of the Services or related functions with you is also of legal age as described above.
6.1. These Terms are effective until terminated by Food Truck. Your rights under these Terms will terminate automatically without notice if you fail to comply with any provision of these Terms. Further, Food Truck may, in its sole and absolute discretion, modify, suspend, discontinue, or terminate your rights, with or without notice, and at any time these pursuant to these Terms. In the event of termination, you are no longer authorized to access the Site, the App, and/or the Services and the restrictions imposed on you with respect to the Content, the Materials, the disclaimers, indemnities, limitations of liabilities, and the Binding Arbitration Clause (Section 19.2) set forth in these Terms shall survive termination. Food Truck shall also have the right without notice and at any time to terminate the Site, the App, and/or the Services or any portion thereof, or any products or services offered through Food Truck, Site, the App, and/or the Services, or to terminate any individual’s right to access or use the Site, the App, and/or the Services or any portion thereof.
6.2. You may terminate your account at any time by sending an e-mail to email@example.com with the subject line, “Terminate Account.” Your account will terminate upon the date the correspondence is received by Food Truck. Subject to these Terms, you may reapply for a user account at a later date.
6.3. You may always cancel or modify marketing communications you receive from us by following the instructions contained within our promotional e-mails or in some cases by logging into your User Account and changing your communication preferences. This will not affect subsequent subscriptions, and if your opt-out preferences are limited to certain types of e-mails, the opt-out will be so limited. Subsequent or different subscriptions will remain unaffected.
The text, images, photographs, graphics, logos, illustrations, descriptions, visual interfaces, interactive features, graphics, designs, data, computer code, software, aggregate user review ratings and other material provided on the Site, the App, and/or the Services, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.” All Content is owned by Food Truck. The Content may contain errors, omissions, or typographical errors or may be out of date. Food Truck may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only and is not binding on Food Truck in any way except to the extent it is specifically indicated to be so. Unless otherwise noted, all Content is protected by copyright, trademark, common law and other proprietary rights that are owned by Food Truck or by third parties that have licensed their use to Food Truck. You may view and use the Content only for your personal information and for no other purpose. You must retain all trademark, copyright and other proprietary notices, either downloaded or printed, and any such downloads or copies are subject to the Terms and shall remain the property of Food Truck and/or its licensors and/or suppliers. Except as provided in the foregoing, Food Truck does not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the Site, the App, and/or the Services, including without limitation by transferring, downloading or otherwise copying any Content onto any disk drive or other storage medium. Any use of the Content or Information, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in writing signed by Food Truck, is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Site, the App, and/or any Services or Information. Nothing contained on the Site, the App, and/or the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Food Truck and/or its licensors’, suppliers’ or third party owners of trademarks or copyrights without the express written permission of Food Truck, our licensors or suppliers, or the third party owner of any such trademark and/or copyright. Use of Content is strictly prohibited unless authorized in writing by Food Truck and requests for permission should be directed to firstname.lastname@example.org. The Site, the App, and the Information is the property of Food Truck and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. All other company and product names and logos are trademarks or registered trademarks of their respective owners.
By creating a User Profile, you agree that:
(1) You will not register a username (or email address) that (a) is already being used by someone else; (b) may impersonate another person: (c) belongs to another person; (d) violates the intellectual property or other right of any person or entity; or (d) is offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion;
(2) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated or incomplete, the Company may suspend or terminate your account and refuse you any and all current or future access to or use of the Application, Sites and Services (or any portion thereof). If you fail to update your information in a timely manner, then the Company has reasonable grounds to suspect that such information is untrue, inaccurate, outdated or incomplete, which will allow the Company to suspend or terminate your account, and refuse you any and all current or future access or use of the Application, Sites and Services (or any portion thereof).
(3) You are solely responsible for all activities that occur under your account, password, and username - whether or not you authorized the activity;
(4) You are solely responsible for maintaining the confidentiality of your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for restricting access to your account so that others may not access any password protected portion of the Application, Sites or Services using your name, username, or password;
(5) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information;
(6) You will not post libelous content or create false or misleading reviews or posts; and
(7) You will not sell, transfer, or assign your account or any account rights.
The Company is not liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
Your User Profile cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests or other promotions absent our prior written consent. We may offer you the ability to set preferences relating to your User Profile, but changes to your settings may not become effective immediately or be error free, and options may change from time-to-time. The Company assumes no responsibility or liability for any issues, problems or Content on your User Profile.
8.2. User Profiles may only be set up by an authorized representative of the individual or business that is the subject of the User Profile. The Company does not review each User Profile to determine if they were created by an appropriate party. In addition, The Company is not responsible for any unauthorized User Profiles that may appear on the Application, Sites and/or Services. If you believe that a User Profile listed on one of the Applications or Sites is unauthorized, fake, fraudulent or otherwise improper or misleading, please send an email to email@example.com.
8.3. You agree not to transfer or resell your use of or access to the Site, the App, and/or the Services to any third party, that it is a violation of these Terms to sell or divert in any way the medication received to any other person and/or entity, and you hereby represent and warrant that you will not engage in any such activities; otherwise, Food Truck may immediately terminate your access and use of the Site, the App, and/or the Services in the event it suspects you are violating this provision. If you have reason to believe that your account with us is no longer secure, you must immediately notify us by emailing us at firstname.lastname@example.org.
The Applications, Sites or Services might display, include or make available Third-Party Content (including data, research, information, articles, applications or other products, services and/or materials) or contain links to third party websites, services, and advertisements for third party Offers (as defined below) (collectively, the "Third Party Materials"). You acknowledge and agree that the Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to a Third-Party Material, the applicable third party's terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.
The Applications, Sites or Services might display, include or make available coupons, promotional codes, giveaways, samples, and other offers or other third parties to access and purchase products listed on our Apps, Sites and Services (collectively, the “Offers”). Offers constitute “Third Party Materials” under these Terms. The Company may display these Offers on the Applications, Sites and Services as a form of advertisement for the third party (the “Offeror”) only. All Offers are made directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such terms, conditions or restrictions are expressly included on the Applications, Sites or Services. The Offeror, and not the Company, is solely responsible for: (a) redemption of the Offer; (b) compliance of all aspects of the Offer with applicable law (including, without limitation, the advertisement, redemption, and terms, conditions and restrictions related thereto); (c) all goods and services it provides to you in connection with the Offer; and (d) all injuries, illnesses, damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of an Offer or not.
10.1. The Sites, App, and Services may allow you to rate (“Ratings”) and post reviews (“Reviews”) of food trucks and other businesses. Further, the Sites, App, and Services may allow you to add information, comments, and/or other materials and/or content that you submit, post and/or otherwise transmit to the Site and the App (collectively, “User Content”). Such User Content is governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of the Sites' standards of conduct. Ratings and Reviews are not endorsed by Food Truck, and do not represent the views of Food Truck or of any affiliate or partner of Food Truck. Food Truck does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the food truck prior to your review; (2) you may not have a proprietary or other affiliation with either the restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the restaurants' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
10.2. You grant Food Truck an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sub-licensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and/or otherwise use your User Content on the Site and the App and in all media now known or hereinafter devised (collectively, the "Uses"), without notification to and/or approval by you. You further grant Food Truck a license to use your username and/or other user profile information including, but not limited to, your ratings history and how long you have been a member of Food Truck, to attribute User Content to you, if we choose to do so, again without notification to and/or approval by you.
10.3. By submitting User Content, you agree:
(1) That you own, or have the necessary licenses, rights, consents and/or permissions to all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights to your User Content, and to any other works that you incorporate into your User Content;
(2) That you are responsible for anything you submit to, or through the use of, the Applications, Sites or Services and agree that the Company does not have to post or keep posted anything you provide. Once posted on the Applications or Sites or on the Internet, it is not always possible to remove, especially if multiple copies exist. Although the Company will be diligent to ensure your privacy, when User Content is uploaded to the Applications, Sites or Services, or posted on any social media platforms with a tag or reference to the Company, you give the Company complete permission to make it available in multiple forms. If any of your User Content is acquired and used by a third party in a way that violates these Terms or any Additional Terms, you agree that the Company can take legal action against the third party and that the Company shall not be obligated to distribute any recovered sums to you that may be obtained in connection with such legal proceedings;
(3) That, and represent and warrant that, submission of your User Content will not cause injury to any other person or entity using the Applications, Sites, Services, or otherwise, and the Company is under no obligation to post any User Content that you provide, and reserves the right to post our own versions of your User Content as Company Content in our sole discretion;
(4) To fully assign the Company the right to pursue enforcement of copyright, trademark, trade secret and other intellectual property related claims against third parties that have, without receiving proper authorization, and in violation of these Terms or any Additional Terms, scraped, manipulated, copied, derived, distributed or otherwise improperly or illegally used and benefited from User Content that has been provided to the Company by you;
(5) That you have the written consent, release, and/or express permission of each and every identifiable person in your User Content to use such person's name and/or likeness in your User Content for any use permitted by these Terms;
(6) That you will not post, transmit, broadcast or otherwise make available any User Content that is unlawful, misleading, harmful, bigoted, offensive, profane, insensitive, obscene, tortious, libelous, pornographic, threatening, abusive, harassing, tortious, defamatory, vulgar, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable (hereinafter, “Offensive Content”);
(7) That you are at least of legal age to use the Sites, Apps, and/or Services, being no less than eighteen (18) years old, and you acknowledge that persons under legal age may not submit User Content to the Company, the Applications, Sites or the Services; and
(8) That the Company may, in its sole discretion, monitor the User Content you submit and any other communications that you may have, but is under no obligation to do so.
10.4. By submitting User Content, you acknowledge that you may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
10.5. User Content transmitted to certain parts of the Site and the App may be posted in public areas on our Site and the App, including without limitation in a compilation format, and publicly visible and accessible. Food Truck and its officers, directors, employees, parents, subsidiaries, affiliates, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for, the action of any and all third parties with respect to User Content.
Subject to these Terms, the Company grants you a non-transferable, non-exclusive, license to install and use the software the Company makes available for mobile devices ("Mobile App"), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. You acknowledge and agree that the availability of the Mobile App is dependent on the third party app platform from which you received the Mobile App ("App Platform"). You acknowledge that these Terms concern you and the Company, and not the App Platform. The Company, not the App Platform, is solely responsible for the Mobile App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Each App Platform may have Additional Terms to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable agreements, terms and conditions of use/service, and other policies of the applicable App Platform.
You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Applications, Sites and/or Services. In connection with your access or use of any of the Applications, Sites or Services, you may not and will not:
You fully understand, acknowledge and agree that the Company may, under certain circumstances and without prior notice, immediately terminate your User Profile and access to the Applications, Sites, Services and any other related or affiliated applications, functions and tools. Cause for account termination or suspension shall include, but not be limited to: (1) breaches or violations of these Terms or other incorporated agreements, guidelines, or rules; (2) requests by law enforcement or other local, state or federal government agencies or divisions; (3) any attempts to breach our security, private accounts or other protected content on the Applications and/or Sites; (4) discontinuance or significant modification to the Applications, Sites or Services, or any related or affiliated application or website owned and/or operated by the Company (or any part thereof); (5) unforeseen technical, electronic, mechanical or any other difficulties or security issues; (6) prolonged inactivity of your account, which shall be determined by the Company; (7) knowing, willing and/or negligent engagement by you in any form of deceitful, fraudulent, counterfeit or illegal activities; and/or (8) failure by you, or by your representatives, to pay, in full, any fees owed by you in connection with the purchase or use of the Applications, Sites or any related or affiliated Service, business or website. Termination of a User Profile will deny you access to our Services, delay or remove User Content that you submitted or commented on, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts or special offers, and take technical and/or legal steps to prevent you from using our Applications, Sites and Services in the future. The Company has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Certain features of the Sites, Apps and/or Services, including, without limitation, the placing of orders, may require you to make certain payments. When paid by you, these payments are final and non-refundable, unless otherwise determined by Food Truck. Food Truck, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.
Food Truck will charge, and you authorize Food Truck to charge, the payment method you specify at the time of making an Order. If you pay any amounts with a credit card, Food Truck may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. You acknowledge and agree that Food Truck may engage a third party for payment processing. By using the Sites, Applications and/or Services, you (i) authorize Food Truck to engage a third party for payment processing, (ii) agree to such third party’s terms and conditions, as may be amended from time to time in the sole and absolute discretion of such third party, and (iii) authorizes Food Truck to share limited transactional information with such payment processor as required in order to process Orders placed through the Sites or Applications.
In the event that Food Truck advances payment for any of your Orders, Food Truck may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant Food Truck the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.
Food Truck reserves the right to establish, remove, and/or revise prices, fees, and/or surcharges for any or all services or goods obtained through the use of the services at any time. Food Truck may also, in its sole and absolute discretion, make promotional offers with different features and different rates to any or all of our customers. Unless made to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.
Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”), Food Truck has designated to the U.S. Copyright Office an agent to receive notifications of claimed copyright infringement relating to the Site, the App, and/or the Services (the “Designated Agent”). Upon receipt of a properly completed and delivered DMCA Notice of Alleged Infringement, the Company will take whatever action it deems appropriate in its sole discretion, but subject to its obligations under the DMCA, including removal of the challenged material from the Applications or Sites.
All such notifications relating to the Site, the App, and/or the Services must be submitted in a manner consistent with the DMCA to the following Designated Agent in writing as follows:
The Notice, with all above items completed, must be delivered to the Company at the following address: Food Truck Legal Department email@example.com.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a Notice automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the Notice and allegation of copyright infringement.
We have no obligation to monitor the Site, the App, and/or the Services or any postings or other materials (such as Ratings or Reviews) that you or other third parties transmit or post on the Site, the App, and/or the Services (collectively, the “Materials”). You acknowledge and agree that we have the right (but not the obligation) to monitor the Site, the App, the Services and the Materials you transmit or post; to alter or remove any such Materials; to disclose such Materials and the circumstances surrounding their transmission to any third party in order to operate the Site, the App, and/or the Services properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests. The information and opinions posted in the Materials on the Site and the App are not necessarily those of Food Truck or its affiliates, and Food Truck makes no representations or warranties regarding such posted Materials. We neither endorse nor are responsible for messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Site, the App, the Services, or forums by third parties, whether such third parties are visitors to the Site and the App, members of the Site or the App or others. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, Materials or for any results obtained from the use of such information. Under no circumstances will we or our suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained from the Materials through the Site, the App, and/or the Services. You agree that, if there is a dispute between users of this Site, the App, and/or the Services, or between a user and any third party, Food Truck is under no obligation to become involved, and you agree to release Food Truck and its affiliates from any claims, demands and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such dispute and/or the Site, the App, and/or the Services.
You represent and warrant to Food Truck that (a) the Materials do not and will not infringe any rights of any third party(ies), and that the Materials do not and will not libel, defame, or invade the rights (including, without limitation, the right of privacy or publicity) of any third party(ies); (b) all obligations relating to the Materials have been satisfied, including, without limitation, those with and relating to artists and personnel, licenses, and laboratory and other contracts; (c) you have the right to enter into these Terms and to grant the rights granted or agreed to be granted hereunder; and (d) you have made all necessary payments (and no additional payments are required to be made) to any and all guilds, unions, performing rights societies, bodies and/or groups representing actors, writers, directors, composers, musicians, artists, and other persons who participated in the production of the Materials.
By posting or submitting Content on or to the Site, the App, and/or the Services (regardless of the form or medium with respect to such content, whether text, videos, photographs, audio or otherwise), you are giving Food Truck, and its affiliates, agents and third party contractors the right to display or publish such content on our Site, the App, and/or the Services and its affiliated publications (either in the form submitted or in the form of a derivative or adapted work), to store such content, and to distribute such content and use such content for promotional and marketing purposes. Without limiting the generality of the foregoing, with respect to any video submissions to us made by you from time to time, you understand and agree that (unless you and we agree otherwise) we may, or may permit users to, based solely on functionality provided and enabled by our Site, the App, and/or the Services, compile, re-edit, adapt or modify your video submission, or create derivative works therefrom, either on a stand-alone basis or in combination with other video submissions, as we may determine and at our sole discretion in any medium now known or hereafter developed, and (unless you and we agree otherwise) you shall have no rights with respect thereto and we or our licensees shall be free to display and publish the same (as so compiled, re-edited, adapted, modified or derived) for any period.
You grant a non-exclusive license to Food Truck with regard to the Materials he/she has submitted for the term of his/her copyright, and that the Materials be used by Food Truck as it may determine and at its sole discretion in any medium now known or hereafter developed. Food Truck reserves the royalty-free right to sub-license, reproduce, disclose, transmit, publish, broadcast and distribute electronically any such Material for purposes including but not limited to education, publicity and promotion.
An important part of the Company community is the feedback system. Users have the ability to leave reviews and comments, and we want that process to be as open as possible (“Ratings”). Part of that openness is acknowledging that certain behaviors are not acceptable. Ratings are considered Materials and are governed by these Terms including, but not limited to, your agreement regarding the standards of conduct set forth herein. Ratings do not reflect the views of the Site, the App, or Food Truck. We strive to maintain a high level of integrity with our Ratings and other Materials. All Ratings must be legitimate. The Company retains the right to remove any content posted on or submitted through any of its Applications, Sites or Services. However, the only User Content likely to be removed is that which violates these Terms or the rules or guidelines on the applicable Application, Site or Service regarding reviews, comments, feedbacks and other User Content (the "Review Policies"). Please note, the Review Policies of each Application, Site or Service may differ. Please consult the relevant Application, Site or Service to learn about its applicable Review Policy.
Please note, the Company is under no obligation to enforce these Terms or any of the Review Policies on your behalf against another user. While the Company encourages you to let us know if you believe another user has violated these Terms or any of the Review Policies, we reserve the right to investigate and take appropriate action at our sole discretion.
YOU EXPRESSLY ACKOWLEDGE, UNDERSTAND AND AGREE THAT UNLESS OTEHRWISE PROVIDED IN THESE TERMS:
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SITE (INCLUDING ALL INFORMATION), THE APP AND/OR SERVICES, ARE AT YOUR OWN RISK AND THE SERVICES ARE PROVIDED ON A “AS IS” AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY OTHER POTENTIAL OR ACTUAL WARRANTY OF ANY KIND.
THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS MAKE NO GUARANTEE OR WARRANTY THAT: (1) THE APPLICATIONS, SITES AND SERVICES WILL SATISFY YOUR NEEDS AND REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR EQUIPMENT; (2) THE APPLICATIONS, SITES AND SERVICES, AND ALL AFFILIATED SITES, FEATURES, SERVICES, COMMUNICATIONS AND APPLICATIONS, WILL BE COMPREHENSIVE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR BE FREE FROM LOSS, DESTRUCTION, CORRUPTION, ONLINE ATTACK, VIRUSES, WORMS, OR OTHER INVASIVE, HARMFUL, OR CORRUPTED OR OTHER RELATED INTRUSIONS; (3) THE INFORMATION, DATA OR RESULTS REALIZED OR OBTAINED FROM YOUR USE OF THE APPLICATIONS, SITES OR SERVICES WILL BE ACCURATE, UP TO DATE, SATISFACTORY OR RELIABLE OR FIT OR USEFUL FOR ANY SPECIFIC PURPOSE; (4) THE QUALITY OR VALUE OF ANY PROPERTIES, SERVICES, PRODUCTS, INFORMATION OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE APPLICATIONS, SITES AND SERVICES WILL MEET YOUR EXPECTATIONS; (5) THAT ANY OFFER MADE OR MESSAGE SENT WILL BE SUCCESSFULLY TRANSMITTED, RECEIVED AND PROCESSED; AND (6) ANY ERRORS IN THE GUIDELINES, SOFTWARE OR PROTOCOLS WILL BE CORRECTED OR RESOLVED.
ANY PRODUCT OR PROGRAM DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APPLICATIONS, SITES AND SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE AND FULLY LIABLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH PRODUCT, MATERIAL, APPLICATION, FEATURE OR OTHER PROGRAM.
NO ADVICE OR INFORMATION, STRATEGY, GUIDELINES OR RELATED CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR FROM THE PRODUCTS, APPLICATIONS, SITES, SERVICES OR RELEVANT SOCIAL MEDIA PAGES SHALL CREATE ANY WARRANTY, GUARANTEE OR STRATEGY NOT EXPRESSLY STATED IN THESE TERMS.
VETTING BY THE COMPANY OF EACH AND EVERY DOCUMENT, PHOTOGRAPH, VIDEO, ARTICLE, RESEARCH MATERIAL, REVIEW, RELATED MEDIA, POSTING OR OTHER COMMUNICATION, IN ADDITION TO ANY OTHER CONTENT POSTED VIA THE APPLICATIONS, SITES OR SERVICES, MAY NOT BE POSSIBLE OR REALISTICALLY PRACTICEABLE. AS A RESULT, THE COMPANY CANNOT AND DOES NOT CONTROL ANY LISTING REVIEWS, COMMENTS, PHOTOGRAPHS, OPINIONS, RESEARCH, POSTINGS OR OTHER CONTENT OR MATERIAL POSTED VIA THE APPLICATIONS, SITES OR SERVICES AND, AS SUCH, DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY, SAFETY, LEGALITY, MORALITY, AND/OR AUTHENTICITY OF SUCH CONTENT, THE TRUTH OR ACCURACY OF USERS CONTENT, THE ABILITY OF LISTINGS TO CONFIRM PRODUCT AVAILABILITY OR PRICING, OR THE ABILITY OF USERS TO CONFIRM EXPERIENCES FROM USING OR PURCHASING SPECIFIC PRODUCTS DISCUSSED OR SOLD ON THE SITES OR SERVICES.
FOOD TRUCK AND FOOD TRUCK’S REPRESENTATIVES ARE UNDER NO OBLIGATION TO VERIFY THE IDENTITY OF USERS OF THE SITE, THE APP, THE SERVICES AND/OR INFORMATION. FOOD TRUCK AND FOOD TRUCK’S REPRESENTATIVES DO NOT CONTROL THE MATERIALS POSTED OR SUBMITTED TO THE SITE, THE APP, AND/OR THE SERVICES BY PERSONS OTHER THAN THEMSELVES AND DO NOT MONITOR, SCREEN, POLICE OR EDIT THOSE MATERIALS FOR COMPLIANCE WITH APPLICABLE LAWS OR THESE TERMS AND CONDITIONS. YOU MAY FIND SOME OF THE MATERIALS POSTED BY OTHER USERS TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU SHOULD USE CAUTION AND COMMON SENSE WHEN USING THE SITE, THE APP, AND/OR THE SERVICES.
THROUGH YOUR USE OF THE SITE, THE APP, THE SERVICES AND/OR INFORMATION, YOU MAY HAVE THE OPPORTUNITY TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. ALL SUCH TRANSACTIONS ARE AT YOUR OWN RISK. FOOD TRUCK AND FOOD TRUCK’S REPRESENTATIVES ARE NOT PARTIES TO ANY SUCH TRANSACTIONS AND DISCLAIM ANY AND ALL LIABILITY REGARDING ALL SUCH TRANSACTIONS.
SOME STATES AND PROVINCES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SO THE ABOVE DISCLAIMERS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN THE EVENT THAT APPLICABLE LAW IMPOSES IMPLIED WARRANTIES ON SITE, THE APP, THE SERVICES OR INFORMATION NOTWITHSTANDING THE FOREGOING, SUCH IMPLIED WARRANTIES SHALL NOT HAVE A DURATION GREATER THAN ONE YEAR FROM THE RELEVANT PURCHASE OR ACCESS DATE; SHALL TERMINATE AUTOMATICALLY AT THE END OF SUCH PERIOD; AND SHALL BE DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS UNDER APPLICABLE LAW WHICH VARY FROM STATE TO STATE.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY IS UNABLE TO GUARANTEE CONSISTENT, CONTINUOUS OR SECURE ACCESS TO ITS SITES, APPLICATIONS, SERVICES, PROGRAMS, CONTENT AND NETWORK, AND OPERATION OF THE APPLICATIONS, SITES AND SERVICES MAY BE INTERFERED WITH OR DELAYED BY NUMEROUS POTENTIAL FACTORS OUTSIDE OF THE COMPANY’S CONTROL. YOU ACKNOWLEDGE, EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSEES, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF OPPORTUNITY, REPUTATION, PROFITS, GOODWILL, USE, VALUATION, TAX BENEFIT, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) USE OR THE INABILITY TO USE THE COMPANY’S APPLICATIONS, SITES, AND/OR SERVICES; (2) THE COST TO PROCURE SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES, E-MAILS, REVIEWS, POSTINGS, COMMENTS OR OTHER COMMUNICATIONS RECEIVED, OR TRANSACTIONS ENTERED INTO VIA THE APPLICATIONS OR SITES OR OTHER AFFILIATED OR RELATED SITES OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APPLICATIONS OR SITES; (5) THE FAILURE OF ANY OFFEROR TO TIMELY PROCESS AN OFFER; (6) ANY ACTIONS OR INACTION WE TAKE AS A RESULT OF COMMUNICATIONS FROM YOU TO THE COMPANY; OR (6) ANY OTHER MATTER RELATING TO THE COMPANY’S SITES, ANY AFFILIATED OR RELATED COMPANY SERVICES, FEATURES OR APPLICATIONS, OR ANY OTHER ENTITY OWNED OR OPERATED BY THE COMPANY. FURTHER, THE COMPANY IS NOT A PARTY TO ANY SUCH TRANSACTIONS MADE BETWEEN USERS, AND THE COMPANY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DEFAULTS, COSTS, INFORMATION, THE CONTENTS OF ANY DOCUMENTS, OR FOR ANY OTHER INTERACTIONS, BETWEEN OR AMONG USERS, INCLUDING USERS, LISTINGS, DISPENSARIES, DISTRIBUTORS, PHYSICIANS, AND ALL RELATED PARTIES, IN ANY WAY ASSOCIATED WITH THE COMPANY’S APPLICATIONS, SITES OR SERVICES.
THIS LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF TRANSMISSIONS AND DATA AND ANY OTHER TANGIBLE OR INTANGIBLE LOSSES. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, OR AS A RESULT OF NEGLIGENCE, OR OTHERWISE ARISE OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE PRODUCTS, APPLICATIONS, SITES, SERVICES, OR MATERIALS AVAILABLE FROM THE APPLICATIONS, SITES AND SERVICES, AND EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
REGARDLESS OF THE AFOREMENTIONED, IF THE COMPANY IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (1) THE TOTAL FEES WHICH YOU PAID TO FOOD TRUCK IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; OR (2) $100.
SOME STATES, COUNTIES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER RELATED DAMAGES OR LOSSES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU HEREBY AGREE TO THE FOLLOWING: (i) to waive any and all claims that you have or may have against the Company and its affiliates, officers, directors, managers, shareholders, owners, employees, contractors, consultants and agents resulting from use of the Applications, Sites and Services, and (ii) to release the Company and its affiliates, officers, directors, managers, shareholders, owners, employees, contractors, consultants and agents from any and all liability from any loss, damage, injury (whether bodily or monetary), or expense that you or any users of the Applications, Sites and Services may suffer as a result of the use of any of the foregoing, due to any cause whatsoever, including but not limited to negligence or breach of contract on the part of the Company, in the design or manufacture of the Applications, Sites and Services.
You agree to indemnify and hold the Company (and its owners, directors, managers, officers, partners, employees, independent contractors and agents and successors and assigns of itself or its affiliates) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of or otherwise relating to (i) your use or misuse of any of the Company’s Applications, Sites or Services, (ii) your User Content, (iii) your violation of these Terms or any Additional Terms, (iv) your violation of applicable laws or regulations; or (v) your willful misconduct. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us or any other indemnitee hereunder and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge the Company (and its owners, directors, managers, officers, shareholders, employees, independent contractors and agents and successors and assigns of itself or its affiliates) from, and hereby waive and relinquish your rights with respect to, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any interactions with, or act or omission of, other Applications, Sites or Services or Third Party Materials, and (ii) any liability suffered as a result of the use of any of the foregoing, due to any cause whatsoever, including negligence or breach of contract on the part of the Company in the design of its Applications, Sites, or Services.
If you are a California resident or resident of a state with a similar applicable law, you hereby waive California civil code section 1542 in connection with the foregoing (or such other similar applicable law in your state), which states: "a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
None of Food Truck and Food Truck’s Representatives are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond the control of Food Truck, including natural disasters, acts of God, war, terrorism actions, DNNEC attacks, or decrees of governmental bodies, exchange of market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of the obligations of Food Truck and Food Truck’s Representatives with respect to the effected elements under these Terms will be suspended for the duration of such Force Majeure Event.
22.1. Informal Dispute Resolution. If you have any issues or problems concerning the Site, the App, and/or the Services, we encourage you to notify us immediately at firstname.lastname@example.org. so that we can attempt to resolve your issue. Most issues or problems can be resolved quickly and amicably. However, in the event that that you or Food Truck and Food Truck’s Representatives are unable to come to an amicable resolution within 15 days of your submission, you or Food Truck and Food Truck’s Representatives may bring a formal proceeding.
22.2. Formal Dispute Resolution: Binding Arbitration. You agree that any and all disputes will be submitted to and finally determined by arbitration as set forth in these Terms. In such case, you would incur additional expense in connection with such arbitration. The decision of the arbitrator will be final and binding and neither Food Truck and its Representatives nor you will have the right to appeal such decision, whether in a court or in another arbitration proceeding. You understand that, by agreeing to arbitrate disputes as provided in these Terms, you, Food Truck, and Food Truck’s Representatives are waiving any and all statutory and other rights that we may have to a trial by jury in connection with any such dispute, claim or controversy. You may decline this agreement to arbitrate by e-mailing us at email@example.com within 30 days of first accepting these Terms. Notwithstanding anything to the contrary, each party retains the right to bring an individual action in small claims court and 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 the party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you, and Food Truck’s Representatives are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless you, Food Truck, and/or Food Truck’s Representatives agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
22.3. Arbitration Procedures. 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 at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California 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. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration will be conducted by one impartial arbitrator (who may be a former judge, practicing attorney or person who is not an attorney), selected by mutual agreement or, if you and Food Truck cannot agree, the arbitrator will be selected in accordance with the AAA Rules.
22.4. Arbitration Process and Applicable Law. Unless you and Food Truck otherwise agree, the arbitration will be conducted in San Francisco, California by one arbitrator. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Food Truck submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. 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 not award punitive damages to either party and you and Food Truck will each be deemed to have waived any right to such damages. The arbitrator will, in rending his or her decision, apply the substantive law of the State of California (excluding its choice of law rules that would require the application of the laws of another jurisdiction). The award of the arbitrator will be rendered within the time frame specified in the AAA Rules. It will include a written explanation of his or her decision and specify the basis for any damages, which may include the costs and expenses of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above (Section 16) as to the types and amounts of damages for which a party may be held liable. 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. The written decision of the arbitrator will be final, binding and non-appealable and may be enforced in any court of competent jurisdiction.
22.5. Arbitration Fees. Except for the limitations on fees as set forth in Section 19.4 above, your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. If your claim for damages is less than $75,000, however, Food Truck will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
22.6. Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, Food Truck, and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law.
22.7. Exceptions to Agreement to Arbitrate. Either you or Food Truck may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site, the App, and/or the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
22.8. No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
22.9. Venue for Other Types of Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Food Truck agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Food Truck consent to venue and personal jurisdiction there.
We may, in our sole discretion, seek your consent to these Terms and certain other agreements on the Site, the App, and/or the Services by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms, affirmatively “click” on boxes containing the words, “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms or accessing the Site, the App, and/or the Services or using any of the Information or Content after you have had an opportunity to review these Terms, you acknowledge and agree: (i) that you and, where applicable, the Patient and/or Primary Caregiver on whose behalf we grant you access to the Site, the App, and/or the Services intend to form a legally binding contract between you and Food Truck; (ii) that you have read and agree to the terms and conditions of these Terms; (iii) that you agree and intend that these Terms to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms, you acknowledge that you have received a copy of these Terms by your viewing a web page containing a hyperlink to the web page where these Terms are displayed or otherwise; and (v) that if you are executing these Terms on behalf of others, you hereby certify that you are an authorized representative authorized by law.
The Site, the App, and the Services are controlled and operated from its facilities in the United States. We do not represent that the Information or Materials in the Applications, Sites or Services are appropriate or available for use in any particular location. Those who choose to access and use the Applications, Sites or Services do so on their own initiative and are responsible for compliance with all applicable laws. You represent and warrant that you are not (a) located in or a national or resident of any country that is subject to U.S. trade sanctions, or (b) a person or entity on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or acting on behalf of any person or entity on such list or on any other U.S. Government list of prohibited or restricted parties.
If any of the conditions contained within these Terms shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions set forth herein.
These Terms are governed and construed in accordance with the laws of the State of New York, without giving effect to the choice-of-law rules of that State. You agree to submit to the exclusive jurisdiction of the federal courts siting in New York for resolution of disputes relating to or arising out of these Terms. In the absence of federal jurisdiction, you agree to submit to the exclusive jurisdiction of the state court located in New York County, New York. You agree to waive any jurisdictional, venue or inconvenient forum objections to such courts. All disputes shall be resolved in the English language.
These are the entire Terms between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms or any right, obligation or remedy hereunder are not assignable, transferable, delegatable or sublicensable by you except with Food Truck’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Food Truck may assign, transfer or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion.
Should you have any questions, comments or complaints regarding these Terms, the Site, the App, or the Services, please contact us at firstname.lastname@example.org to speak to a representative