Effective: April 19, 2021
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH FOODVINE INC., NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND FOODVINE EACH WAIVE THE RIGHT TO A TRIAL BY JURY. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST FOODVINE, WHETHER NOW PENDING OR FILED IN THE FUTURE. IF THERE ARE PROPOSED CLASS ACTIONS OR REPRESENTATIVE ACTION PROCEEDINGS PENDING AGAINST FOODVINE INC., THEN THIS AGREEMENT APPLIES TO THEM UNLESS YOU OPT OUT AS DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW.
BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Services Description: The Service is a technology platform that provides an online marketplace in which personal chefs, caterers, and other individuals list, offer, sell, and deliver food items and meal orders (“Meal(s)”) to the general public, and customers browse and purchase Meals. Users who purchase Meals through the Service are "Customer(s)," and users who list, prepare and sell Meals through the Service are "Chef(s)." A user may be both a Customer and Chef. All purchases are made directly (and any contract for purchase and sale is) between the Customer and Chef.
Foodvine Inc. offers a marketplace, it is not itself a Chef. The Service includes pricing assistance and delivery, but we are not a party to any purchase or sales transaction. We may also help facilitate the resolution of disputes between our Customers and Chefs, but Foodvine Inc. has no control over and does not guarantee (a) the existence, quality, safety, authenticity, or legality of Meals offered or sold on the Service; (b) the truth or accuracy of a Chef's content or listings on the Service; (c) the ability of a Chef to sell Meals through the Service and deliver Meals within required delivery windows; (d) the ability of Customers to pay for Meals purchased through the Service; or (e) that a Customer or Chef will actually complete a transaction, effectuate trouble-free delivery and shipping, or return a Meal through the Service.
Each Chef is solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparation, sale, marketing, and packaging of all Meals ordered through Foodvine Inc., and updating details and prices relating to the Meals offered. Each Chef is solely liable for the quality, safety, and freshness of its products, and Foodvine Inc. does not verify the credentials, representations, products, services, or prices offered by any Chefs, and does not guarantee the quality of the product or services, or that Chefs or Meals comply with applicable laws. Foodvine Inc. will not be liable or responsible for any Meals provided by Chefs that are a cause of injury or that do not meet your expectations in any manner.
Foodvine Inc. may enter into agreements with independent contractors (each a “Courier”) to provide delivery services under certain circumstances if desirable by individual Chefs. If a Chef chooses to use a Courier to deliver a Meal, Foodvine Inc. is not offering such delivery services and has no responsibility or liability for the actions or inactions of any Courier. Foodvine Inc. will not be liable or responsible for any delivery services provided by a Courier or any errors or misrepresentations made by them. Couriers are required to comply with all applicable laws, rules, and regulations.
CHEFS ARE REQUIRED TO COMPLY WITH FEDERAL, STATE, AND LOCAL LAWS, RULES, REGULATIONS, AND STANDARDS PERTAINING TO THE PREPARATION, SALE, AND MARKETING OF FOOD, INCLUDING, WITHOUT LIMITATION, OBTAINING AND MAINTAINING A LICENSE TO SELL FOOD, ALL LAWS THAT APPLY TO COTTAGE FOODS, FOOD PREPARATION, SAFETY, SALES LIMITS, DELIVERY, AND MENU DISCLOSURE.
Foodvine is not liable or responsible for Chefs’ food preparation or safety and does not verify their compliance with all applicable laws. In addition, Foodvine does not guarantee the quality of what the Chefs sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third-party delivery service. Foodvine does not independently verify, and is not liable for, representations made by Chefs regarding their food, including, without limitation, any menu- or Chef-level descriptors, disclosures, photographs, or images displayed through the Platform reflecting the food prepared by the Chefs and/or delivered by Delivery Partners (defined below).
Foodvine is not a delivery company or a common carrier. Some deliveries are provided by Foodvine's network of independent delivery service providers (“Delivery Partners”). Delivery Partners have entered into agreements with Foodvine which require them to comply with all applicable federal, state, and local laws, rules, and regulations, including, without limitation, traffic laws, requirements of the applicable motor vehicle agency, and applicable insurance requirements. By accessing the Platform, you agree and acknowledge that Delivery Partners are solely responsible for, and Foodvine shall not be liable or responsible for, the delivery services provided to you by any Delivery Partner or any subcontractors of Delivery Partners, or any acts, omissions, errors, or misrepresentations made by any Delivery Partner.
You may only create and hold one account on each of the separately branded properties on the Platforms (each, an “Account”) for your personal use. You may have another Account if you are using the Platform for business purposes, including as part of an enterprise Account, pursuant to a separate agreement with Foodvine. In consideration of the use of the Platform and the Services, you agree that you are able to create a binding legal obligation with Foodvine, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.
The Platform may permit you to use the Services without an Account or without logging in to your Account (e.g. on our in-store kiosks or as a guest with our group order feature). If you use the Service in this manner, we may create an Account for you based on the information you provide to us in connection with the transaction (e.g., your payment information, name, phone number, email address, and other transaction information). If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Platform, and your parent or legal guardian must read and agree to this Agreement prior to your using the Platform. Notwithstanding the foregoing, you are not authorized to use the Platform or otherwise access the Services if you are under the age of 13. If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company. If you provide any information that is untrue, inaccurate, not current, or incomplete, including, without limitation, having an invalid or expired payment method on file, or if Foodvine has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Foodvine has the right to block your current or future use of the Platform and/or the Services (or any portion thereof) and/or terminate this Agreement with you. If your Account is terminated for any or no reason, you may forfeit any pending, current, or future account credits, Perks (defined below) or other promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.
You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify Foodvine of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. Foodvine will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.
OUR ALCOHOLIC BEVERAGES POLICY
Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age. Upon delivery or pickup, as applicable, you shall present a government-issued identification card, evidencing your age, consistent with applicable legal requirements. The Delivery Partner may electronically scan the identification card of the individual receiving the order to confirm that the recipient is at least 21 years of age and the delivery may be completed. You also agree that our Delivery Partners may withhold delivery of the alcoholic beverages if you appear or the recipient of the delivery appears intoxicated when receiving delivery of such products. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, you may forfeit the cost of such beverages, and you may be responsible for restocking fees.
PAYMENT AND OUR CREDIT POLICY
Certain features of the Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments, including commissions or other fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by Foodvine. Foodvine, 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.
Foodvine will charge, and you authorize Foodvine to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, Foodvine 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. In the event Foodvine advances payment for any of your orders placed via the Platform (e.g., if you sign up for a corporate account), Foodvine 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 Foodvine 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. Please note, you are unable to complete checkout with only gift card information. In all events, you are required to provide another form of payment to submit an order, even if this payment method is not charged. Also, if you are a campus user and you opt to pay for a purchase with your stored-value card, on certain campuses, (i) Foodvine will charge such purchase to your stored-value card and will charge any applicable fees to either your credit card or other payment on file with us, and (ii) you agree that Foodvine may be unable to refund a purchase to your stored-value card and may, in its discretion, provide a refund through an alternative method.
Foodvine reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for Chef food and beverage items. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower than the total amount due. Regardless of the cause, Foodvine reserves the right to charge the final price after checkout, including without limitation all applicable transaction taxes. Foodvine may also, in its sole discretion, make Perks or other promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these Perks and promotional offers will have no bearing on your obligation to pay the amounts charged. For more information on these offers, please see the “Perks” section below.
The provider of Services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
OUR MATERIALS AND LICENSE TO YOU
With the exception of Your Content (defined below), the Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the "Materials") is owned by or licensed to Foodvine. The Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to Foodvine, Inc. Accordingly, you are not authorized to download any content from the Platform, including, without limitation, the Materials, and if you do, Foodvine will not be responsible in any way for any damage to your computer system or loss of data that results from such download. Please also be advised that Foodvine enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Platform. Any other use of the Platform is strictly prohibited. Nothing contained on the Platform and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the Platform without the express written permission of Foodvine or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by Foodvine and Foodvine’s licensors.
YOUR CONTENT AND CONDUCT
I. Your Conduct
By accessing the Platform or the Services, you agree:
to comply with the Agreement and all applicable laws, rules, and regulations in connection with your use of the Platform and Services, including, without limitation, laws regarding online conduct and Your Content (as defined below);
not to use the Platform or Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
not to access the Platform or Services using a third party's account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by Foodvine to protect the Platform, or otherwise attempt to gain unauthorized access to any part of the Platform and/or any Service, other Account, computer system, and/or network connected to any Foodvine server;
not to use the Platform or Services in any manner that could damage, disable, overburden, and/or impair the Platform, any Foodvine server, or the network(s) connected to any Foodvine server, and/or interfere with any other party's use and enjoyment of the Platform;
not to advertise to, or solicit, any user, Chef, or other business to buy or sell any products or services, or use any information obtained from the Platform or the Services in order to contact, solicit, or advertise or sell to any user, Chef, or other business, in each case, unless specifically authorized in writing by Foodvine;
not to deep-link to or frame the Platform and/or access the Platform manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Platform and/or any Materials and/or other content on the Platform, unless specifically authorized in writing by Foodvine;
not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Platform;
not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Platform or Materials;
not to create reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Platform;
not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
not to harass, annoy, intimidate, or threaten any Foodvine employees, contractors, or agents engaged in providing any portion of the Services and not to engage in any other behavior that Foodvine deems inappropriate when using the Platform or Services;
not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (e.g. by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of the Materials or from any portion of the Platform or the Services;
not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Platform and its Services; and
not to disrupt, interfere with, or otherwise harm or violate the security of the Platform, or any Services, system resources, accounts, passwords, servers, or networks connected to or accessible through the Platform or affiliated or linked sites.
II. CHEF'S FACILITIES, STATE, AND LOCAL LICENSES
In addition to the foregoing conduct restrictions, to the extent you are a Chef, you represent and warrant that your use of the Services to market, advertise and sell Meals does not violate any applicable law or regulation and that, if required, you have all appropriate state and local licenses to sell food, such as cottage food licenses or restaurant licenses. If at any time a requires license is lost for any reason, you must restrain yourself from selling any foods or products for which the license is required.
III. INGREDIENTS AND ALLERGENS
For any particular Meal and related content posted using the Service, a Chef shall provide a comprehensive list of ingredients contained in or otherwise used to prepare the Meal, including any known allergens. Foodvine Inc. is not responsible for the accuracy of the information and labeling of Meals delivered to Customer. Customers should be advised that Meals may be prepared in facilities using the same equipment that is used to prepare Meals containing other allergens even if the allergen is marked as being absent from the food. Foodvine Inc. shall not be liable for any illness, health problem, or other damages that may result from any order or consumption of any Meals and related items purchased through the Service.
IV. CHEF INSURANCE
Foodvine Inc. does not maintain insurance for liabilities that may arise from your use of the Service as either a Customer or Chef. If you are a Chef, Foodvine Inc. recommends that you obtain appropriate insurance to cover the operation of your food facility and the preparation and delivery of Meals. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Customers or any third party service.
V. SPECIFIC STATE LAWS
The following is an incomplete on in places incorrect listing of some State laws, you as a User must research the federal, state, and local laws that pertain to the goods and services you provide prior to selling them. The laws change from time to time and you must maintain a current compliance with whatever the laws may be at all times.
Helpful links to State Laws and Regulations can be found here. These links may be wrong or old! Please do your own research to make sure you are compliant with current laws!
LINKS FOR COTTAGE FOOD ACTS
https://regulations.delaware.gov/AdminCode/title16/Department of Health and Social Services/Division of Public Health/Health Systems Protection (HSP)/4458A.shtml
Homemade Food FQAs
https://phpa.health.maryland.gov/OEHFP/OFPCHS/Pages/CottageFoods.aspx?fbclid=IwAR371WxyBNRjj4SO8Xf4dvspyj_hJ-JhIgr0cFilO0cGPS2EDmzRxlcUF-M - section7
https://www.mass.gov/info-details/residential-kitchen-questions-and-answers - what-foods-may-be-produced-in-a-residential-kitchen?-
https://www.michigan.gov/mdard/0,4610,7-125-50772_45851-240577--,00.html - ProductList
https://health.mo.gov/safety/foodsafety/consumer/faqs.php - 2
https://oksenate.gov/sites/default/files/interim_materials/Interim-Studies/Cottage Food Laws Overview - State Comparisons.pdf
Also, these websites may give you some initial general guidance:
Here are general laws for specific states in more details.
This includes, but is not limited to the California Retail Food Code (excerpted from the California Health and Safety Code). As a Chef located in California, you represent and warrant that you prepare and provide all Meals to Customers using a qualified (i) “Food Facility” (as defined in Section 113789 of the California Retail Food Code, as amended); (ii) “Food Processing Establishment” (as defined in Section 111955 of the California Retail Food Code, as amended); or (iii) “Cottage Food Operation” (as defined in Section 113758 of the California Retail Food Code, as amended). To the extent you are a Chef preparing and providing Meals out of a food facility qualifying only as a “Microenterprise Home Kitchen” (as defined in Section 113825 of the California Retail Food Code, as amended), you further represent and warrant that you are in compliance with the terms of Chapter 11.6 of the California Retail Food Code, as amended, which requires, among other things, that:
a) You operate your microenterprise home kitchen in a city or county where the governing body has authorized by ordinance or resolution the permitting of microenterprise home kitchen operations;
b) You have submitted to the local enforcement agency written standard operating procedures that include the following information: (i) all food types or products that will be handled, (ii) the proposed procedures and methods for food preparation and handling, (iii) procedures, methods, and schedules for cleaning utensils, equipment, and for the disposal of refuse; (iv) how food will be maintained at the required holding temperatures, pending pickup by Customers or during delivery; and (v) days and times that the home kitchen will potentially be utilized as a microenterprise home kitchen operation.
c) You have successfully (i) passed an approved and accredited food safety certification examination, (ii) passed an inspection and (iii) received a permit to operate issued from the local enforcement agency;
d) Your permit to operate a microenterprise home kitchen operation received from the local enforcement agency remains valid and in full effect;
e) Any person delivering Meals on behalf of your permitted microenterprise home kitchen operation is an employee or a family/household member of yours, and if such a person drives a motor vehicle to deliver Meals, the person has a valid driver's license;
f) You have entered (and updated when necessary) the permit number for your microenterprise home kitchen operation in the dedicated field provided by us during the sign-up process;
g) You have no more than one full-time equivalent food employee, not including a family member or household member;
h) Your Meals are prepared, cooked and served to Customers on the same day;
i) Your Meals are consumed either (i) onsite at your microenterprise home kitchen or (ii) offsite if the food is picked up by the consumer or delivered within a safe time period;
j) Your Meal preparation does not involve processes that require or handle raw milk or require a HACCP plan;
k) Your Meals do not include raw oysters;
l) You do not prepare more than 30 individual Meals per day, and no more than 60 Meals per week (or the approximate equivalents of each if meal components are sold separately);
m) Your operation has no more than fifty thousand dollars ($50,000) in verifiable gross annual sales, as adjusted annually for inflation based on the California Consumer Price Index; and
n) You sell Meals only to Customers who are consumers rather than wholesaler or retailers.
For further information on California's regulations regarding microenterprise home kitchens, please review the resources provided by the Cook Alliance at www.cookalliance.org. Foodvine Inc. does not support the accuracy of information or endorse any opinions contained on the Cook Alliance website.
You agree to comply with the above conduct requirements, and agree not assist or permit any person in engaging in any conduct that does not comply with the above conduct. In the event that Foodvine believes that you have breached any of the above conduct requirements, Foodvine reserves the right to suspend and/or permanently terminate your Account at our sole discretion. Further, you agree that the consequences of commercial use or re-publication of Your Content (defined below) or Materials from the Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that Foodvine will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
VI. Your Content
Foodvine may provide you with interactive opportunities (i) on the Platform, including, without limitation, features such as user ratings and reviews, saved favorites, liked items, and bookmarked Chefs, user profiles and pictures, (ii) on social media pages maintained by Foodvine, as well as (iii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, "Interactive Areas"). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to Foodvine through the Platform or otherwise in connection with your use of our Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a Foodvine diner, textual, visual, or audio content and information, whether transmitted via the Platform, SMS, or MMS message, or otherwise.
VII. Use of Your Content
You grant Foodvine an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in connection with Foodvine's or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”). The Uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a Foodvine diner, to attribute Your Content to you on the Platform, including in Interactive Areas and other public areas on our Platform, or otherwise in connection with our Services. All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, you hereby grant Foodvine a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to incorporate and use any of your suggestions, input, or other feedback relating to the Platform or the Services (collectively, the “Feedback”) for any purpose without notice to, approval by, or compensation to you.
You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. Foodvine and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, 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 Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.
VIII. Conduct within Interactive Areas
By transmitting Your Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform. We expect your cooperation in upholding our standards. You are responsible for all of Your Content. You agree that Your Content will not:
be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;
have a commercial, political, or religious purpose;
be false, misleading, and/or not written in good faith;
infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
be illegal and/or promote illegal activity;
contain unauthorized advertising and/or solicits users to a business other than those on the Platform; and/or
be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Platform or other websites.
We do our best to encourage civility and discourage disruptive communication on the Platform. We also do our best to discourage communications that incite others to violate our standards. Foodvine may monitor any and all use of the Platform, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Platform in a manner intended to protect our property and rights and to facilitate the proper functioning of the Platform. If any of Your Content or conduct on our Platform violates our standards, or any other terms of this Agreement; or interferes with other peoples' enjoyment of the Materials or our Platform or Services; or is inappropriate in our judgment; we reserve the right, in our sole discretion and without notice to you, (i) to change, delete or remove, in part or in full, any of Your Content, (ii) to terminate or suspend access to any Interactive Areas or any other part of our Platform, and/or (iii) to terminate or suspend your Account; in each case, with or without notice. Foodvine will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with Your Content.
IX. Ratings and Reviews
The Platform and other Interactive Areas may allow you to rate (each, a “Rating”) and post reviews (each, a “Review”) of Chefs. Such Ratings and Reviews are considered Your Content and are governed by the terms and conditions of this Agreement. Ratings and Reviews are not endorsed by Foodvine, and do not represent the views of Foodvine or of any affiliate or partner of Foodvine. Foodvine 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 aspects of Your Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had recent first-hand experience with the Chef; (2) you may not have a proprietary or other affiliation with either the Chef or any of its competitors; (3) you may not draw any legal conclusions regarding the Chefs' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement as well as all applicable laws, rules, and regulations, including without limitation the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. 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 Platform may be removed or excluded by us without notice.
COMMUNICATIONS & TEXT MESSAGES
When you use the Services, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Services, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Your voluntary provision to Foodvine of your cell phone number represents your consent that Foodvine may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes. When you provide your phone number to Foodvine, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from Foodvine at any time. To revoke your consent to receiving SMS or MMS messages from Foodvine, you agree to follow the unsubscribe procedures described below.
When placing orders through the Platform, you may receive order status messages from Foodvine about each order. To unsubscribe from order-related messages, just reply "STOP" to the number sending the message. To resubscribe, text “START” to the same number from the phone number associated with your account. If you need assistance, text “HELP”. Please note that unsubscribing from one of the branded properties in our Platform will not automatically unsubscribe you from another separately branded property in our Platform. For example, if you unsubscribe from Foodvine order-related messages, you may still receive order-related messages when you place an order through Seamless, unless you also unsubscribe from Seamless order-related messages.
Additionally, you may receive messages from Foodvine following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying "STOP" to the number sending the feedback messages. To resubscribe, text "START" to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from Foodvine, the Chef, or your delivery person regarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the Chef or your delivery person to enable successful delivery of your order.
You may also receive text messages in response to certain Customer Care requests. To unsubscribe from Customer Care messages, just reply to the message by texting “STOP” to the number sending the message.
If you unsubscribe from receiving text messages from Foodvine through the process described above, you may continue to receive text messages for a short period while Foodvine processes your request(s). If you change or deactivate the phone number you provided to Foodvine, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Foodvine’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. If you require assistance, please call our Customer Care team.
ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access Foodvine’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. Foodvine does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Foodvine hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that Foodvine may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. Please upgrade to the latest version of the Mobile Applications in order to view the most up-to-date information on the Platform regarding Chefs featured on the Mobile Applications. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Foodvine or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. Foodvine reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Platform and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Platform.
The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Foodvine, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Foodvine as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Foodvine as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Foodvine, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Foodvine acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is solely between you and Foodvine only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Foodvine, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Foodvine’s Google-Sourced Software.
THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FOODVINE DISCLAIMS, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FOODVINE DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FOODVINE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT FOODVINE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
FOODVINE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FOODVINE'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FOODVINE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOODVINE RELIES UPON CHEFS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FOODVINE DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL FOODVINE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF FOODVINE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER ACTION OF ANY TYPE THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY FOODVINE.
FOODVINE ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. FOODVINE ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL FOODVINE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER ACTION OF ANY TYPE EXCEED (A) THE AMOUNT PAID BY YOU TO FOODVINE OR A FOODVINE CHEF, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
YOU AND FOODVINE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND FOODVINE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES, WHICH YOU MAY DO AT ANY TIME.
IMPORTANT NOTE TO NEW JERSEY CONSUMERS
THIRD PARTY LINKS
The Platform may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). Foodvine does not review, monitor, operate and/or control the Third Party Websites and Foodvine makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, Foodvine is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. Foodvine reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
Please note, we may also give you the option on the Platform to register with a specific promotional or loyalty programs that are not operated by or associated with Foodvine. If you do register with the promotional or loyalty program, you understand that you may be required to agree to additional terms and conditions and/or you may be directed to a Third Party Website. You also understand that you will need to contact them separately if you have any questions regarding your participation in their promotional or loyalty program and/or cancellation of your account with them directly. Foodvine does not own, operate, or otherwise control such separate promotional or loyalty programs and therefore shall have no liability for those separate programs, including without limitation your participation therein.
DONATE THE CHANGE
Foodvine may provide you with the option to purchase e-gift cards in connection with your use of the Platform. The terms and conditions for e-gift card use are located at https://www.foodvine.com/; and both are incorporated into this Agreement by reference.
Foodvine also makes physical gift cards available for purchase. The terms and conditions stated on the physical card apply.
Foodvine respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Platform or a website through which our Services may be accessed in a way that constitutes copyright infringement, please provide Foodvine's Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Platform;
Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to our copyright agent at: Foodvine, Inc., Attention: Copyright Agent, 24A Trolley Square #1596, Wilmington DE 19806-3334, USA.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Foodvine and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Foodvine’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Foodvine has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. Foodvine may also in its sole discretion limit access to the Platform, the Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
TERMINATION AND VIOLATIONS OF THE AGREEMENT
Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, Foodvine reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Platform and/or Services offered on or through the Platform (or any part thereof), including but not limited to the Platform's features, look and feel, and functional elements and related Services. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable), and ceasing use of the Platform and Services provided herein.
Upon termination of this Agreement for any reason or no reason: (1) your access rights will terminate and you must immediately cease all use of the Platform and Services; and (2) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” (vii) “Indemnification” and (viii) “Waiver and Severability.”
Foodvine reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Platform and/or Services from a particular account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
CHANGES TO THE AGREEMENT
Except for the “Dispute Resolution” section below, the terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The Federal Arbitration Act will govern the interpretation and enforcement of the “Dispute Resolution” section.
Also, regardless of any statute or law to the contrary, you must provide notice to Foodvine, pursuant to the procedures in the “Dispute Resolution” section below, of any claim within one year of its accrual, or your claim will be waived and barred.
PLEASE READ THIS “DISPUTE RESOLUTION” SECTION CAREFULLY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF FROM FOODVINE AND REQUIRES YOU TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS.
I. Informal Dispute Resolution Procedure.
There might be instances when a dispute arises between you and Foodvine. In those instances, Foodvine is committed to working with you to reach a reasonable resolution; however, we can only do this if we know about and understand each other’s concerns. Therefore, for any issue or dispute that arises between you and Foodvine, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: info@Foodvine.com. For any dispute that Foodvine initiates, we will send our written description of the dispute to the email address associated with your account. The written description must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; and the relief sought.
You and Foodvine then agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference between you and Foodvine. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party's counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This should lead to resolution, but if for some reason the dispute is not resolved satisfactorily within sixty (60) days after receipt of the written description of the dispute, you and Foodvine agree to the further dispute resolution provisions below.
To reiterate, this informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
II. Mutual Arbitration Agreement. You and Foodvine agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement or payments by or to Foodvine, or that in any way relate to your use of the Platform, the Materials, the Services, and/or other content on the Platform, your relationship with Foodvine, or any other dispute with Foodvine, shall be submitted exclusively to binding arbitration. This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior Agreement as well as claims that may arise after the termination of this Agreement.
Notwithstanding the foregoing, issues related to the scope, validity, and enforceability of this Arbitration Agreement are for a court to decide. Also, each party retains the right to (1) elect to have any claims heard in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction and (2) 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 confidential or proprietary information or intellectual property rights. For clarity, this “Dispute Resolution” provision does not alter, amend, or affect any of the rights or obligations of the parties to any Foodvine Delivery Partner Agreement.
ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM. RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND FOODVINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
III. Class Action and Collective Relief Waiver.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT IN SECTION VII BELOW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS, JOINT, COLLECTIVE OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF). UNLESS BOTH YOU AND FOODVINE OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS (EXCEPT AS SET OUT IN SECTION VII BELOW), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS, JOINT, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING ANY DECLARATORY OR INJUNCTIVE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE PROCEEDING.
This Class Action and Collective Relief Waiver is an essential part of this “Dispute Resolution” section, and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Foodvine is entitled to arbitration of such claim or dispute. Notwithstanding the foregoing, if a court determines that the Class Action and Collective Relief Waiver is not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims.
IV. Arbitration Rules.
The arbitration will be administered by the American Arbitration Association ("AAA"). If AAA is not available to arbitrate, the parties will select an alternative arbitration provider. Except as modified by this “Dispute Resolution” provision, the AAA will administer the arbitration in accordance with either (A) the Commercial Arbitration Rules then in effect, or (B) the Consumer Arbitration Rules then in effect if the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1 (together, the "Applicable AAA Rules"). The Applicable AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.
V. Arbitration Process.
If after sixty (60) days the Informal Dispute Resolution Procedure above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Applicable AAA Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
VI. Arbitration Location and Procedure.
Unless you and Foodvine otherwise agree, the arbitration will be conducted in the county where you reside. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Foodvine submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, your right to a hearing will be determined by the Applicable AAA Rules. Subject to the Applicable 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. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Foodvine, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
VII. Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands presented by or with the assistance or coordination of the same law firm or organization are submitted to AAA or another arbitration provider (if AAA is unavailable) against Foodvine within a 30-day period (or in otherwise close proximity), the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Foodvine and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “Batch Arbitrations” provision shall in no way be interpreted as authorizing class arbitration of any kind. Foodvine does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section VII.
VIII. Arbitrator's Decision.
The arbitrator will render an award within the time frame specified in the applicable AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator's award of damages and/or other relief must be consistent with section III above and also must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages or other relief for which a party may be held liable.
Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If 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)), Foodvine will have the right to recover attorneys’ fees and expenses.
Your responsibility to pay any AAA filing, administrative, and/or arbitrator fees will be solely as set forth in the applicable AAA Rules (as modified by section VII above). If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Foodvine will pay as much of the filing, administration, and/or arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive to you.
X. Right to Opt-Out of Arbitration.
Foodvine’s updates to these Terms and Conditions do not provide you with a new opportunity to opt out of the Mutual Arbitration Agreement if you previously agreed to an Agreement and did not validly opt out of arbitration. Foodvine will continue to honor any valid opt outs if you opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. If you create a Foodvine account for the first time on or after December 14, 2020, you may opt out of this Mutual Arbitration Agreement. To opt out, you must notify Foodvine in writing no later than 30 days after first becoming subject to this Mutual Arbitration Agreement. Your notice must include your name and address, the email address you currently use to access your Foodvine account (if you have one), and a clear statement that you want to opt out of this Mutual Arbitration Agreement. You must send your opt-out notice to: disputeresolution@Foodvine.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with Foodvine or may enter into in the future with Foodvine.
Foodvine reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to any individual claim(s) for which you have already provided notice to Foodvine. If Foodvine changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Platform or Services after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Foodvine written notice of such rejection by mail or hand delivery to: Foodvine, Attn: Dispute Resolutions, 111 West Washington Street, Suite 2100, Chicago, Illinois 60602, or by email from the email address associated with your account to: disputeresolution@Foodvine.com, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Foodvine in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
WAIVER AND SEVERABILITY
Any waiver by Foodvine of any term of this Agreement must be in writing. Except as otherwise provided in this Agreement (see “Dispute Resolution” section III), if any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
This Agreement, together with any amendments and any additional agreements you may enter into with Foodvine in connection with the Platform and the Services hereunder, shall constitute the entire agreement between you and Foodvine concerning the Platform and the Services hereunder.
If you have any questions regarding this Agreement or the Platform, please visit our "Help" page for answers and our contact information.