Effective: September 28, 2020
IMPORTANT: PLEASE REVIEW THE "DISPUTE RESOLUTION" SECTION SET FORTH BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH EZ-CHOWTHROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND EZ-CHOWARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST EZ-CHOW. 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.
1. Acceptance of this Agreement
EZ-Chow provides an online marketplace connection, using web-based technology that connects you and Merchants (as that term is defined in Section 5 of this Agreement). EZ-Chow's software permits consumers to place orders for food and/or other goods from Merchants (the "Software"). Once such orders are made, the Merchant is responsible for completion of the delivery to the consumer. EZ-Chow is not a restaurant, delivery service or food preparation business.
If you access any of our websites located at www.EZ-Chow.com/, install or use our EZ-Chow mobile application, install or use any other software supplied by EZ-Chow, or access any information, function or service available or enabled by EZ-Chow (each, a "Service" and collectively, the "Services"), or complete the EZ-Chow account registration process, you, your heirs, assigns, and successors (collectively, "you" or "your") hereby represent and warrant that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with EZ-Chow; and
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms "User" and "Users" refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.
Subject to Section 12(h) of this Agreement, EZ-Chow reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
3. Additional Terms and Policies
4. Rules and Prohibitions
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, EZ-Chow employees or our community.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets or other rights of any third party, including privacy or publicity rights.
(c) You will only access the Services using means explicitly authorized by EZ-Chow.
(d) You will not use another User's account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance, annoyance or inconvenience.
(f) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to any Merchant unless EZ-Chow has given you prior permission to do so in writing.
(g) You will not copy or distribute the Software or any content displayed through the Servicesfor republication in any format or media.
(h) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that could damage, disable, overburden or impair any EZ-Chow server or the networks connected to any EZ-Chow server.
(m) You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any EZ-Chow server.
(n) You will not probe, scan or test the vulnerability of any system or network or breach or circumvent any security or authentication measures EZ-Chow may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You will not deep-link to our website or access our website manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame or monitor any portion of our websites or any content on our websites.
(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
(q) You will not try to harm other Users, EZ-Chow or the Services in any way whatsoever.
(r) You will not engage in threatening, harassing, racist, sexist or any other behavior that EZ-Chow deems inappropriate when using the Services.
(s) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You will not abuse any promotional or credit code system that we may offer, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first time users.
(u) You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
5. Merchants Are Independent
You understand and agree that EZ-Chow provides a technology platform connecting you with independent food service providers and others that provide the products offered through the Services ("Merchants"). You acknowledge and agree that EZ-Chow does not itself prepare food, does not offer delivery services, and has no responsibility or liability for the acts or omissions of any Merchant or any delivery or other independent contractor that any Merchant may engage or hire ("Merchant Contractors"). EZ-Chow is not the retailer of any products offered by Merchants, nor is it in the delivery business or a common carrier. EZ-Chow provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery by Merchant Contractors. EZ-Chow will not assess or guarantee the suitability, legality or ability of any Merchant or Merchant Contractor. You agree that EZ-Chow is not responsible for the Merchant's food preparation or the safety of the food, and does not verify any Merchant's compliance with applicable laws or regulations. EZ-Chow has no responsibility or liability for acts or omissions by any Merchant or Merchant Contractor.
You agree that the goods that you purchase will be prepared by the Merchant you have selected and that title to the goods passes from the Merchant to you at the Merchant's location. You agree that EZ-Chow does not hold title to or acquire any ownership interest in any goods that you order through the Services.
6. User Account
You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify EZ-Chow immediately. EZ-Chow will not be liable and you may be liable for losses, damages, liability, expenses and fees incurred by EZ-Chow or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current or incomplete, or if EZ-Chow has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, EZ-Chow has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by EZ-Chow or if you have been previously banned from use of the Services.
7. User Content
(a) User Content. EZ-Chow may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, "User Content"). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You hereby grant EZ-Chow a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with EZ-Chow's business and in all forms now known or hereafter invented ("Uses"), without notification to and/or approval by you. You further grant EZ-Chow a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to EZ-Chow herein shall survive termination of the Services or your account. EZ-Chow reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or we consider to be objectionable for any reason. You agree that EZ-Chow may monitor and/or delete your User Content (but does not assume the obligation to do so) for any reason in EZ-Chow's sole discretion. EZ-Chow may also access, read, preserve and disclose any information as EZ-Chow reasonably believes is necessary to: (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to User support requests; or (v) protect the rights, property or safety of EZ-Chow, its users and the public.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to EZ-Chow through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that EZ-Chow has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to EZ-Chow a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses ("Ratings" and "Reviews"), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by EZ-Chow and do not represent the views of EZ-Chow or its affiliates. EZ-Chow shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. You agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant; (ii) you will not provide a Rating or Review for any Merchant for which you have an ownership interest, employment relationship or other affiliation or for any of that company's competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Merchant; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.
8. Communications with EZ-Chow
By creating an EZ-Chow account, you electronically agree to accept and receive communications from EZ-Chow or third parties providing services to EZ-Chow including via email, text message, calls and push notifications to the cellular telephone number you provide to EZ-Chow. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of EZ-Chow, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing the Settings in your account. To opt out of receiving promotional text messages from EZ-Chow, you must reply "STOP" from the mobile device receiving the messages.
9. E-SIGN Disclosure
By creating an EZ-Chow account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing EZ-Chow email@example.com "Revoke Electronic Consent" in the subject line.
To view and retain a copy of this disclosure, you will need: (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email EZ-Chow firstname.lastname@example.org your contact information and the address for delivery.
10. Intellectual Property Ownership
EZ-Chow alone shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services or any intellectual property rights owned by EZ-Chow. The EZ-Chow name, EZ-Chow logo and the product names associated with the Software and Services are trademarks of EZ-Chow and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
11. Payment Terms
(a) Prices. You understand that: (i) the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (ii) EZ-Chow has no obligation to itemize its costs, profits or margins when publishing such prices; and (iii) EZ-Chow reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in store totals. In those situations, EZ-Chow reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on EZ-Chow's income). Payment will be processed by EZ-Chow, using the preferred payment method designated in your account.
(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. EZ-Chow has no obligation to provide refunds or credits, but may grant them in the exercise of its sole discretion.
(c) Promotional Offers and Credits. EZ-Chow, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by EZ-Chow; (iii) are subject to the specific terms that EZ-Chow establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer. EZ-Chow reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that EZ-Chow determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. EZ-Chow reserves the right to modify or cancel an offer at any time. EZ-Chow may also offer gratuitous credits, which can be used for the Services. Any credit issued by EZ-Chow is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.
(d) Fees for Services. EZ-Chow may change the fees for our Services as we deem necessary or appropriate for our business.EZ-Chow may also charge Merchants fees on orders that you place through the Services, including commissions and other fees, and may change those Merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.
12. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH EZ-CHOW AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE "ARBITRATION AGREEMENT".
(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a consumer of our Services, to any advertising or marketing communications regarding EZ-Chow or the Services, to any products or services sold or distributed through the Services that you received as a consumer of our Services, or to any aspect of your relationship or transactions with EZ-Chow as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that: (i) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis and (ii) you or EZ-Chow may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
BY AGREEING TO ARBITRATION WITH EZ-CHOW, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT THAT MAY BE ASSERTED AGAINST EZ-CHOW. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST EZ-CHOW IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
(b) Arbitration Rules and Forum. The arbitration will be administered by the American Arbitration Association ("AAA"). The AAA will administer the arbitration in accordance with either: (i) the Commercial Arbitration Rules then in effect or (ii) 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. The Federal Arbitration Act will govern the Interpretation and enforcement of this Section 12.
(c) Arbitration Location and Procedure. Unless you and EZ-Chow otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and EZ-Chow submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, 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.
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 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://www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf. The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected in accordance with the Applicable AAA Rules. If the parties are unable to agree upon an arbitrator within 14 days of the AAA's notice to the parties of its receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(d) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and EZ-Chow. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator's decision is final and binding on you and EZ-Chow.
(e) Waiver of Jury Trial. YOU AND EZ-CHOW WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and EZ-Chow are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(f) Waiver of Class or Consolidated Actions. YOU AND EZ-CHOW AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor EZ-Chow is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 19.
(g) Survival. This Arbitration Agreement will survive any termination of your relationship with EZ-Chow.
(h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if EZ-Chow makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to EZ-Chow.
13. Third-Party Interactions.
(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites ("Third-Party Websites") and applications ("Third-Party Applications") and advertisements ("Third-Party Advertisements"). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, EZ-Chow will not warn you that you have left EZ-Chow's Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites,Third-Party Applications and Third-Party Advertisements are not under the control of EZ-Chow. EZ-Chow is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Advertisements. EZ-Chow does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Websites,Third-Party Applications or Third-Party Advertisements, or any third partyproducts or services. You use all links in Third-Party Websites,Third-Party Applications or Third-Party Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites,Third-Party Applications or Third-Party Advertisements, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, i.e., the Apple App Store or theGooglePlay Store (as appropriate, the "App Store"). You acknowledge and agree that this Agreement is between you and EZ-Chow and not with the App Store. EZ-Chow, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the Application. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
14. Transactions Involving Alcohol
You may have the option to request delivery of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the Contractor delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither EZ-Chow nor the Contractor can accept your order of alcohol products, and the order will only be delivered if the Merchant accepts your order. The Contractor reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.
You agree to indemnify and hold harmless EZ-Chow and its officers, directors, employees, agents and affiliates (each, an "Indemnified Party"), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (i) your User Content; (ii) your misuse of the Software or Services; (iii) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (iv) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys' fees incurred by the Indemnified Party. EZ-Chow reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with EZ-Chow in asserting any available defenses. This Section does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this Section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
16. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EZ-CHOW MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
EZ-CHOW DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, EZ-CHOW SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.EZ-CHOW 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 EZ-CHOW WEBSITE.
EZ-CHOW RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. EZ-CHOW 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 USER'S RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
17. Internet Delays
18. Limitation of Liability
(a) General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section 18 to keep the Software and Services simple and efficient, and costs low, for all users.
(b) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EZ-CHOW'S AGGREGATE LIABILITY SHALL NOT EXCEED THE LESSER OF:(I) $1,000 AND (II) THE AMOUNT, IF ANY, ACTUALLY PAID BY YOU TO EZ-CHOW OR THE RELEVANT MERCHANT. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW EZ-CHOW SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE).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. THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY EZCCHOW'S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
19. Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and EZ-Chow agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Louisville, Kentucky.
If you violate this Agreement, EZ-Chow may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, EZ-Chow reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
21. Procedure for Making Claims of Copyright Infringement.
It is EZ-Chow's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to EZ-Chow by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Services of the material that you claim is infringing; (iv) your address, telephone number and e-mail address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for EZ-Chow's Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, EZ-Chow Inc.,2303 Hurstbourne Village Drive, Suite 1200, Louisville, KY 40299.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, EZ-Chow or any third party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. This Agreement is governed by the laws of the Commonwealth of Kentucky consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(c) Severability. If any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(d) Notice. Where EZ-Chow requires that you provide an e-mail address, you are responsible for providing EZ-Chow with your most current e-mail address. In the event that the last e-mail address you provided to EZ-Chow is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, EZ-Chow's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to EZ-Chow by email at email@example.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by EZ-Chow.
(e) Consumer Complaints. In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 N. Market Blvd, Sacramento, CA 95834, or by telephone at (800) 952-5210.
(f) Electronic Communications. You: (i) consent to receive communications from EZ-Chow in an electronic form and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that EZ-Chow provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subsection does not affect your statutory rights.
(g) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by EZ-Chow without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party's successors and permitted assigns.
(h) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
23. Contact Information
Please send your questions or comments regarding this Agreement to:
2303 Hurstbourne Village Drive, Suite 1200
Louisville, KY 40299