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PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BRKBREAD, LLC D/B/A NABEDISH (COLLECTIVELY, “NABEDISH,” “WE,” “US,” OR “OUR”).

 

1. Acceptance of Terms.

 

NabeDish provides an online marketplace connection, using web-based technology that connects you and other consumers to your individual cooks within your neighborhood (“Hosts”). NabeDish’s software permits consumers to place orders for food from various Hosts (the “Software”). Once such orders are made, the NabeDish software notifies the Hosts that an order has been placed and makes a connects you and the Host.  NabeDish is not a restaurant, delivery service, or food preparation business.  We do not bear any responsibility for the quality or quantity of the meal received from the Host.

 

If you access any of our websites located at https://www.NabeDish.com/ or install or use our NabeDish mobile application (or any other software supplied by NabeDish) (each, a “Service” and collectively, the “Services”), or complete the NabeDish 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 NabeDish; 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.

 

2. Additional Terms and Policies.

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By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with NabeDish’s Privacy Policy, which is incorporated in this Agreement by reference. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.

 

3. Rules and Prohibitions.

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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, NabeDish 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 NabeDish.

(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 Host or User, unless NabeDish 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 Services, including Hosts’ listings, for 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 NabeDish server, or the networks connected to any NabeDish 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 NabeDish 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 NabeDish 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 websites or access our websites 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, NabeDish, or the Services in any way whatsoever.

(r) You will not engage in threatening, harassing, racist, sexist or any other behavior that NabeDish 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 our promotional offerings, 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 we believe or determine that you have breached the terms of this Section or the Agreement, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.

 

4. Host Services.

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You understand and agree that NabeDish provides a technology platform connecting you with individuals and others that provide the meals offered and delivery services rendered through the Services (“Hosts”).  You acknowledge and agree that NabeDish does not itself prepare food or offer delivery services and has no responsibility or liability for the acts or omissions of any Hosts. NabeDish is not responsible for any meals offered by Hosts, nor is it in the delivery business or a common carrier. NabeDish provides a technology platform facilitating the transmission of orders by Users to Hosts for pickup or delivery by either You or the Hosts. NabeDish will not assess or guarantee the suitability, legality or ability of any Host. You agree that NabeDish is not responsible for the Hosts’ food preparation or the safety of the food and does not verify Hosts’ compliance with applicable laws or regulations. NabeDish has no responsibility or liability for acts or omissions by any Host.  You agree that the meals that you purchase will be prepared by the Host you have selected, that title to the goods passes from the Host to you at the Host’s location. You agree that NabeDish does not hold title to or acquire any ownership interest in any goods that you order through the Services.

 

5. User Account.

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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 will 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 NabeDish immediately. NabeDish will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by NabeDish or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. We may enable or require you to use a single pair of login credentials to use the NabeDish and/or Caviar services. You agree not to create an account or use the Services if you have been previously removed by NabeDish, or if you have been previously banned from use of the Services.

 

6. User Content.

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(a) User Content. NabeDish 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 NabeDish 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 NabeDish’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant NabeDish 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. The license granted to NabeDish herein shall survive termination of the Services or your account. NabeDish 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. While NabeDish has no obligation to do so, You agree that NabeDish may monitor and/or delete your User Content for any reason in NabeDish’s sole discretion. NabeDish may also access, read, preserve, and disclose any information as NabeDish 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 NabeDish, its users and the public.

 

(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to NabeDish through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that NabeDish 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 NabeDish 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 Hosts (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by NabeDish and do not represent the views of NabeDish or its affiliates. NabeDish 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 Host; (ii) you will not provide a Rating or Review for any Host 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 Host; 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.

 

7. Communications with NabeDish.

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By creating a NabeDish account, you electronically agree to accept and receive communications from NabeDish, Hosts, or third parties providing services to NabeDish including via email, text message, calls, and push notifications to the cellular telephone number you provided to NabeDish. 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 NabeDish, its affiliated companies and/or Hosts, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. 

 

8. E-SIGN Disclosure.

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By creating a NabeDish 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 NabeDish at privacy@NabeDish.com with “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 NabeDish at privacy@NabeDish.com with contact information and the address for delivery.

 

9. Intellectual Property Ownership

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NabeDish alone (and its licensors, where applicable) 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 NabeDish. NabeDish names, NabeDish logos, and the product names associated with the Software and Services are trademarks of NabeDish or third parties, 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.

 

10. Payment Terms.

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(a) Payment. Because NabeDish is a meal sharing service, You understand that the recommended payment amount displayed for each meal through the Services is Your contribution towards the Host’s cost of preparing the meal.  The cost may differ from the cost offered or published by other Hosts for the same or similar meals.  NabeDish has no obligation to itemize its costs, profits or margins when publishing the Host’s recommended contribution.  NabeDish reserves the right to change its service fees for providing the Services 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, NabeDish reserves the right to charge your payment method the final amount after checkout. You are liable for all transaction taxes (if any) on the Services provided under this Agreement (other than taxes based on NabeDish’s income). Payment will be processed by NabeDish, using the preferred payment method designated in your account.

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(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. NabeDish has no obligation to provide refunds or credits, but may grant them, in each case in NabeDish’s sole discretion.

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(c) Promotional Offers and Credits. NabeDish, at its sole discretion, may make promotional offers on its service fees 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. 

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(d) Fees for Services. NabeDish may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees.  NabeDish may also charge Hosts fees on orders that you place through the services, including commissions and other fees, and may change those Host fees as we deem necessary or appropriate for our business or to comply with applicable law.

 

 

11. Dispute Resolution.

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH NABEDISH AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 11 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 NabeDish 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 NabeDish as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that (1) 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 (2) you or NabeDish 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 ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN ANY CASES THAT HAVE BEEN FILED AGAINST NABEDISH—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS.

IF YOU AGREE TO ARBITRATION WITH NABEDISH, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST NABEDISH IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

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(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, General Counsel, at 17422 Galloway Forest Drive, Richmond TX 77407. 

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(c) 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 NabeDish. 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 NabeDish.

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(d) Waiver of Jury Trial. YOU AND NABEDISH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and NabeDish are instead electing to have claims and disputes resolved by arbitration, except as specified in section 11(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

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(e) Waiver of Class or Consolidated Actions. YOU AND NABEDISH 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 NabeDish 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 the applicable Section of this Agreement.

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(f) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor NabeDish can force the other to arbitrate as a result of this Agreement. To opt out, you must notify NabeDish in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your NabeDish username (if any), the email address you used to set up your NabeDish account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: customercare@NabeDish.com with the subject matter “Opt-Out of Arbitration.” 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 us or may enter into in the future with us. 

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(g) Survival. This Arbitration Agreement will survive any termination of your relationship with NabeDish.

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(h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if NabeDish 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 NabeDish.

 

12. Third-Party Interactions.

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 The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, NabeDish will not warn you that you have left NabeDish’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 & Advertisements are not under the control of NabeDish. NabeDish is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. NabeDish does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

13. Social Media Guidelines.

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NabeDish maintains certain social media pages for the benefit of the NabeDish community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by the terms of this Agreement with respect to User Content.

 

14. Indemnification.

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You agree to indemnify and hold harmless NabeDish 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 (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) 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. NabeDish 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 NabeDish in asserting any available defenses. This provision 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.

 

15. Disclaimer of Warranties.

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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” 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. NABEDISH 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.

NABEDISH 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, NABEDISH SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

 

16. Breach And Limitation of Liability.

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(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 16 to keep the Software and Services simple and efficient, and costs low, for all Users.

 

(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW NABEDISH’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO NABEDISH IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. 

 

(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW NABEDISH 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). 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 NABEDISH’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

 

17. Exclusive Venue.

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To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and NabeDish 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 Harris County or Fort Bend County, Texas. 

 

18. Termination.

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If you violate this Agreement, NabeDish may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.

In addition, at its sole discretion, NabeDish 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, NabeDish 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.

 

19. Procedure for Making Claims of Copyright Infringement.

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It is NabeDish’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to NabeDish 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: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for NabeDish’s Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, NabeDish, Inc., 17422 Galloway Forest Drive, Richmond TX 77407.

 

20. General.

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(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, NabeDish or any third party provider as a result of this Agreement or use of the Software or Services.

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(b) Choice of Law. This Agreement is governed by the laws of the State of Delaware consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.

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(c) Severability. Except as otherwise provided in this Agreement, 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.

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(d) Accessing and Downloading the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):

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(1) You acknowledge and agree that (i) the Agreement is concluded between you and NabeDish only, and not Apple, and (ii) NabeDish, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between NabeDish and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of NabeDish.

(4) You and NabeDish acknowledge that, as between NabeDish and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(5) You and NabeDish acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between NabeDish and Apple, NabeDish, 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 the Terms.

(6) You and NabeDish acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

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(f) Notice. Where NabeDish requires that you provide an e-mail address, you are responsible for providing NabeDish with your most current e-mail address. In the event that the last e-mail address you provided to NabeDish is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, NabeDish’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to NabeDish by sending written notice to: General Counsel, NabeDish, Inc., 17422 Galloway Forest Drive, Richmond TX 77407. Such notice shall be deemed given upon receipt by NabeDish.

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(g) Electronic Communications. For contractual purposes, you (1) consent to receive communications from NabeDish in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that NabeDish 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 subparagraph does not affect your statutory rights.

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(h) 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 NabeDish 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.

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(i) 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. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and NabeDish relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.

 

24. Modifications.

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Subject to Section 11(h) of this Agreement, NabeDish 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.

 

Contact Information

NabeDish welcomes your questions or comments regarding the Terms:

NabeDish

customercare@nabedish.com