Welcome to The Culinistas, a full-service, in-home private chef platform, facilitating and enhancing private chef services.
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS (“TERMS”). THIS IS A LEGAL AGREEMENT BETWEEN THE CULINISTAS INC., A DELAWARE CORPORATION (“WE”, “US”, “OUR”, OR “THE COMPANY”), AND YOU INDIVIDUALLY, IF YOU ARE AGREEING IN YOUR PERSONAL CAPACITY, OR IF YOU ARE AUTHORIZED TO CONSENT ON BEHALF OF YOUR COMPANY OR ORGANIZATION, THE ENTITY FOR WHOSE BENEFIT YOU ACT (“YOU” OR”CUSTOMER”). BY USING OUR SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS.
The Company reserves the right, at its sole discretion, to (a) modify or update the Services and/or (b) these Terms, or its policies relating to the Services, at any time, effective upon posting of an updated version of these Terms on this website. You are responsible for regularly reviewing these Terms. If we make any material changes to these Terms, we may also send you notice thereof to the last email address you have provided to us. Continued use of the Services following notice of such changes shall constitute your consent to all such changes.
THE COMPANY HAS NO CONTROL OVER THE CONDUCT OF THE CULINISTAS (WHO ARE INDEPENDENT CONTRACTORS TO THE COMPANY) OR TO ANY OTHER USERS OF THE SERVICES, AND THE COMPANY DISCLAIMS ALL LIABILITY IN THIS REGARD EXCEPT AS OTHERWISE PROVIDED HEREIN WITH REGARD TO MATTERS COVERED BY THE COMPANY’S INSURANCE, IF ANY.
THESE TERMS CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Our Services (the “Services”) include private chef services consisting of Cooking Visits (defined below), certain software and online tools, this website, and mobile applications that facilitate and enhance our Services, as well as related services that we may offer from time to time. Our private chefs (the “Culinistas”) are independent third party providers with whom we contract to come to your home weekly for “Cooking Visits” with groceries, cook and leave dishes for you that can be mixed and matched throughout the week. “Cooking Visits” also includes dinner parties, luncheons, and other events in which our Culinistas provide table service. The Services are made available to you solely for your personal, non-commercial use.
Your Representations and Warranties
By using the Services, you expressly represent and warrant that (i) you are legally entitled to enter these Terms, (ii) you are at least 18 years old, (iii) that you have the authority and capacity to enter into and abide by these Terms, and (iv) that you have read and understand the Company’s “Frequently Asked Questions” section of its website and agree to comply with its provisions, which are hereby incorporated herein by reference (“FAQs”). If you reside in a jurisdiction, which restricts the use of the Services because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not access or use Services. Without limiting the foregoing, the Services are not available to children (persons under the age of 18).
By using the Services, you further acknowledge that the chefs (i.e. the “Culinistas” as referred to in these Terms) have, and will have, no authority to obligate the Company, its affiliates and subsidiaries and/or their agents, owners, partners, successors, officers, employees, personnel and directors to any cost, charge or liability of any kind whatsoever.
Right to Use the Services
In consideration of the fees that you pay the Company, the Company will provide you, on a non-exclusive, non-transferable basis, with the right to use the Services, solely for your own personal, non-commercial purposes, subject to the terms and conditions of these Terms. All rights not expressly granted to you are reserved by the Company and its licensors.:
By using the Services, you agree to the following restrictions:
- 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.
- You will comply with all applicable state, federal, and local laws while using the Services.
- You may only access the Services using authorized means.
- The Company reserves the right to terminate these Terms should you be using the Services with an incompatible or unauthorized device or for any other reason that the Company deems appropriate in its sole unrestricted discretion.
- The Services are for your sole, personal use. Accordingly, you will not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way.
- You will not use the Services for any unlawful, illegal, or fraudulent purposes, or to cause nuisance, annoyance or inconvenience to any other person or entity.
- You will not impair the proper operation of the Services or attempt to harm the Services in any way whatsoever.
- You will not copy, distribute or make derivative works based upon the Services.
- You will keep secure and confidential your account password or any identification we provide you which permits you to access and use the Services.
- You will not create Internet “links” to the Services or “frame” or “mirror” any software on any other server or wireless or Internet-based device.
- You will not launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Services.
- You will not send or store through or on the Services material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
- You will not interfere with or disrupt the integrity or performance of the Services or the data contained therein, and will not attempt to gain unauthorized access to the Services or its related systems or networks.
- You will not send spam or otherwise send any duplicative or unsolicited messages through the Services.
- You will not send or store through or on the Services infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights.
By using the Services, you further agree to the following terms for your Cooking Visits:
- You will select your menu and request service for each Cooking Visit via the online portal at least 48 hours prior to the scheduled start of each Cooking Visit. We will send you a reminder notice via email 72 hours prior to the scheduled start time if you have not already made your selections.
- You will follow and carefully comply with the requirements set forth in the document provided to you from time to time or appearing on the Company’s website entitled “Best Practices when Hiring The Culinistas” (the “Best Practices”), which is hereby incorporated herein by reference.
- You will purchase the Company-prescribed spice set and supplement it when requested by the Company, prior to the Cooking Visit.
- You will allow your Culinista to enter your home when scheduled to arrive without a wait or delay for any reason, and to be in your kitchen for time necessary to complete the job (est. 3-4 hours). You will provide your Culinista with a fully-functioning kitchen (oven, stove, and refrigerator).
- You will allow your Culinista to clean the kitchen (empty dishwasher, cleared sink, shelf space in fridge) at the end of each Cooking Visit.
- You will not interfere with, annoy or prevent your Culinista from completing the Cooking Visit.
- You will not, either during or after the end of the term of the Services, give any gifts or other payments of any kind to your Culinista, and you will abide by our policies regarding tipping described below under “Regarding Tipping and Reviewing your Culinista”.
You understand that use of the Services may result in charges to you for the Services you receive. Charges paid by you are final and non-refundable, except as specified below and except as otherwise determined by the Company.
As between you and the Company, the Company reserves the right to establish, remove and/or revise charges for any or all services obtained through the use of the Services at any time in the Company’s sole discretion. Charges will be made as provided on the Company’s website from time to time, as it may be changed from time to time. The Company will use reasonable efforts to inform you of charges that may apply, provided that you will be responsible for charges incurred under your Company account regardless of your awareness of such charges or the amounts thereof.
Current fees are provided on the Company’s website and via email. Total costs depend on your selected portion size (small, medium, large), and you may reasonably change the portion size with reasonable notice to the Company. Upon ordering the Services, the Company may (but shall not be required to) pre-authorize and charge your credit card or other preferred payment method in an amount deemed appropriate by the Company to cover the Company’s Services for the period to which you have initially ordered the Services, estimated grocery cost, sales tax and travel reimbursement (plus a charge for the Company-specified welcome kit for 1st time clients). Thereafter, the Company may charge a pre-authorization for similar charges for each Cooking Visit prior to the Cooking Visit and then for actual total cost thereof after the Cooking Visit.
Notwithstanding the foregoing, for any Cooking Visit for which you received a Gift Certificate for the Cooking Visit that included payment for Services and/or reimbursement to us for groceries and the travel reimbursement such items, we will apply charges for such items first against the Gift Certificate prior to charging your credit card or other preferred payment method to pay. We will provide statements after each Cooking Visit that show the charges for reimbursable expenses, which will be billed to you “at cost” with no mark-ups, handling fees or hidden charges. We will retain copies of receipts for reimbursable expenses for ninety (90) days after each expenditure and will provide these copies to you upon your request within such period.
We cannot refund or provide a credit to you for cancelled Cooking Visits unless we receive a cancellation for a scheduled visit by email notice (or by other means via the Service) more than 48 hours before the scheduled Cooking Visit. If you cancel a Cooking Visit within 48 hours before the scheduled Cooking Visit, we will charge your credit card or other preferred payment method for the total costs of the Service, including but not limited to, the service fee, sales tax, travel fee, grocery costs, and other expenses that the Culinista or the Company has incurred. We appreciate as much advance notice of cancellations as possible.
The Company may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the charges applied to you.
This payment structure is intended to fully compensate the Company and, through the Company, the Culinistas for services provided.
Regarding Tipping and Reviewing your Culinista. =
The Company does not designate any portion of your payment for the Services as a tip or gratuity to the Culinistas. Any representation by the Company to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for the Services is not intended to suggest that the Company provides any additional amounts, beyond those described above, to your Culinista. While you are certainly welcome to tip a Culinista, we would like your experience to be seamless and therefore discourage tipping or giving gratuities to your Culinista for our routine weekly service, unless the Culinista will be providing an extra service element such as table service or dinner party services. For that reason, we ask that you do not tip for weekly service. After you have received the Services, you will have the opportunity to rate your experience and leave additional feedback about your Culinista.
The Company uses one or more 3rd party payment platforms to process credit and debit card transactions for your Account. The Company is a “Partner Application” as defined in the Stripe Terms of Service.
By using the Service and agreeing to these Terms, you also agree to be bound by the respective Terms of Service of the applicable payment platform.
You expressly understand and agree that the Company shall not be liable for any payments and monetary transactions that occur through your use of the Service. You expressly understand and agree that all payments and monetary transactions are handled by the applicable payment platform. You agree that the Company shall not be liable for any issues regarding financial and monetary transactions between you and any other party, including the applicable payment platform.
You are responsible for all transactions (one-time, recurring and refunds) processed through the Service and/or the applicable payment platform. The Company is not liable for loss or damage from errant or invalid transactions processed with your account with the applicable payment platform. This includes transactions that were not processed due to a network communication error, or any other reason. If you process a transaction, it is your responsibility to verify that the transaction was successfully processed.
You understand that the Company uses the applicable payment platform to run the Service and that the Terms of Service of the applicable payment platform is subject to change at any time and such changes may adversely affect the Service. You understand and agree to not hold the Company liable for any adverse affects that actions (whether intentional or unintentional) on the part of the applicable payment platform may cause to your account with the applicable payment platform or your Account with the Company.
The Services may include functionality that is available via a mobile device (“Mobile Functionality”). For example, Mobile Functionality may allow for communications between users and Culinistas by phone call and SMS messaging. To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Functionality may be prohibited or restricted by your carrier, and not all Mobile Functionality may work with all carriers or devices. Certain information about your usage of the Mobile Functionality may be communicated to the Company. For example, the Company receives call data, including the date and time of the call or SMS message, the parties’ phone numbers, and the content of the SMS message, and reserves the right to monitor all such information. Please note, the Company reserves the right, but has no obligation, to monitor calls between users and Culinistas. By providing your mobile phone number, you agree that the Company may communicate with you using any means of communication including calls placed to your mobile phone using an automated dialing device, calls using pre-recorded messages and/or SMS, MMS, text message regarding your account. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Company account information to ensure that your messages are not sent to the person that acquires your old number.
Company Intellectual Property
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. These Terms are not a sale and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Services are trademarks of the Company or third parties, and no right or license is granted to use them.
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like the Company, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, please email firstname.lastname@example.org. To learn more about the DMCA, click here.
Third Party Interactions
During your use of the Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Company does not endorse any sites on the Internet that are linked through the Services, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. You recognize that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.
The Company may rely on third party advertising and marketing supplied through the Services and other mechanisms to subsidize the Services. By agreeing to these Terms, you agree to receive such advertising and marketing. If you do not want to receive such advertising you should notify us in writing. The Company reserves the right to charge you a higher fee for the Services should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on the Company’s website located at http://www.theculinistas.com. The Company may compile and release information regarding you and your use of the Services on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Services.
By entering into these Terms and using the Services, you agree that you shall defend, indemnify and hold the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, assigns and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
a. your violation or breach of any term of these Terms or any applicable law or regulation, whether or not referenced herein;
b. your violation of any rights of any third party, including Culinistas; or
c. your use or misuse of the Services.
Disclaimer of Warranties
THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY.
THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT:
a. THE CULINISTA WILL ARRIVE WHEN AND AS EXPECTED TO PROVIDE SERVICES OR THAT SERVICES WILL BE ERROR-FREE, OF ANY PARTICULAR QUALITY OR, IN GENERAL, AS YOU EXPECT. IN CONNECTION WITH ANY PART OF THE SERVICES THAT ARE ACCESSED OR OTHERWISE UTILIZE THE INTERNET OR ANY SOFTWARE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THIS DISCLAIMER EXTENDS TO THE SECURITY AND RELIABILITY OF SUCH SERVICES AND THEIR PROVISION WITHOUT VIRUSES OR OTHER HARMFUL COMPONENTS;
b. THE SERVICES WILL MEET OR EXCEED YOUR REQUIREMENTS OR EXPECTATIONS;
c. THE QUALITY OF ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET OR EXCEED YOUR REQUIREMENTS OR EXPECTATIONS, OR
e. ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED.
THE COMPANY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Liability for Culinista Actions; Indemnification and Insurance Protection
The Company expects your Culinista to provide you with the high level of service that you deserve. To that end, the Company conducts a personal interview, in-person kitchen interview in the Company’s test kitchen, and background check on each of our Culinistas. Nonetheless, your Culinista is an independent third party provider with significant freedom in the manner in which he or she provides services to you. You should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with any person whom you do not know.
Accordingly, as a general matter, the Company does not guaranty the quality, suitability, safety or ability of the Culinistas, and you agree that the entire risk arising out of your use of the Services remains solely with you, to the maximum extent permitted under applicable law. By using the Services, you agree to hold the Company free from the responsibility for any liability or damage that might arise out of the professional services. The Company is not responsible for the conduct, whether online or offline, of any Culinistas, and will not be liable for any claim, injury or damage arising in connection with any Services. As a condition to our providing the Services to you, subject to the foregoing, you agree to waive and release us from any claims you may have in the future relating to such claims, injuries or damages and the actions of your Culinista, in general.
Notwithstanding the above general rule, the Company desires to share with you the protections from third party liability and insurance benefits that may be available to us under the Company’s commercial general liability insurance coverage (the “Company’s Insurance”). The Company’s Insurance may include coverage for direct or vicarious liability for bodily injury or property damage caused by a Culinista’s actions (“Liabilities”).
Accordingly, subject to the Culinista’s performance of his or her obligations pursuant to the Culinista’s agreement with the Company and subject to the other conditions set forth herein, the Company agrees to indemnify and hold you harmless from Liabilities you suffered that are caused by your Culinista’s negligence during his or her performance of services to you to the extent covered by the Company’s Insurance (which is expressly subject to change from time to time), provided that the Culinista’s actions are within the scope of the Services and are performed in a lawful manner that is consistent with the behavior of a reasonable and prudent person. By way of example only, this indemnification does not include Liabilities relating to any crimes, illegal activity or other actions that violate your legal rights. No statements or documentation provided by the Company herein or otherwise made or provided to you regarding the Company’s Insurance shall constitute a representation or warranty regarding the status, enforceability or terms of the Company’s Insurance.
In addition, neither these Terms nor any statements and documentation regarding the Company’s Insurance shall constitute any form of representation or warranty that the Company has any insurance whatsoever. You acknowledge that the Company’s Insurance, if any, will include many conditions and limitations and that, if the Company purchases Company Insurance (which the Company has not promised to purchase under these Terms), the insurance company issuing the Company’s Insurance may not pay claims relating to your Culinista’s actions for a variety of reasons, in which case you will have no source of payment for any damages you suffer as a result of the Culinista’s actions.
You agree to cooperate with the insurance company (and its agents) that issues the Company’s Insurance, if any, in connection with the insurance company’s investigation all matters relating to all occurrences and incidents in which your Culinista is involved as a condition to your eligibility for any benefits under the Company’s Insurance, regardless of whether or not the Company is named in a suit, demand, or action.
The limitations and disclaimer in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
Limitation of Liability
THE COMPANY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY CULINISTA, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND THE COMPANY’S REASONABLE CONTROL. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU EXCEED FIVE HUNDRED U.S. DOLLARS (US $500) FOR DAMAGES, LOSSES AND CAUSES OF ACTION FOR WHICH INSURANCE COVERAGE IS NOT AVAILABLE FOR ANY REASON IN CONNECTION WITH THE SERVICES.
The limitations and disclaimer in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
The Company may give notice by means of a general notice on the Services, electronic mail to your email address on record in the Company’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after emailing. You may give notice to the Company (such notice shall be deemed given when received by the Company) at any time by any of the following: letter sent by confirmed facsimile to the Company at the following email: email@example.com
These Terms may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the Company to
i. a parent or subsidiary
ii. an acquirer of assets
iii. a successor by merger
Any purported assignment in violation of this section shall be void.
We reserve the unilateral right to hire agents, whether employees or independent contractors, as necessary to provide the services referred to herein. You agree that, at all times either during or after the end of the term of the Services, you will not, directly or indirectly, hire or engage your Culinista (or anyone else who works or has worked for the Company) to provide hospitality services of any kind, or otherwise take any action for the purpose of circumventing your obligations to the Company for any Services rendered.
Term and Termination of Terms
These Terms shall be effective upon the use of the Services. You or the Company may terminate your use of the Services at any time, for any reason. These Terms, and any subsequent modification of these Terms, shall remain in effect at all times after you or the Company terminates your participation or access to the Services. Any terms hereof that by their nature or explicitly extent beyond termination of the Services, shall survive such termination as applicable thereto.
These Terms shall be governed by the laws of the State of New York, without regard to the choice or conflicts of law provisions of any jurisdiction.
You and the Company agree that any legal disputes or claims arising out of or related to the Terms (including but not limited to the use of the Services, or the interpretation, enforceability, revocability, or validity of the Terms, or the eligibility for arbitration of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in New York. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules, or as otherwise mutually agreed by you and the Company. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law. YOU AND THE COMPANY AGREE THAT ANY CLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THE TERMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, COLLECTIVE, OR CLASS PROCEEDING. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION.
No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of these Terms or use of the Services.
If any provision of the Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. In the event of any inconsistency or conflicts between these Terms, on the one hand, and the FAQs, the Best Practices or any statements made on the Company’s website, on the other hand, then the FAQs, the Best Practices and statements made on the Company’s website shall prevail and bind you and the Company.
The failure of the Company to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.
These Terms comprise the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or terms, whether written or oral, between the parties regarding the subject matter contained herein.
If any provision of these Terms is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and in such event such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
These Terms apply to your use of all the Services, including the iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
(a) Both you and the Company acknowledge that the Terms are concluded between you and the Company only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that the Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, the Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; s
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and the Company acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and the Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.