1. ACCEPTANCE OF THIS AGREEMENT
If you use the Platform on behalf of an entity or organization, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity or organization, and that references to “you” and “your” in these Terms (except for in this sentence) refer to that entity or organization.
You also agree to any additional terms applicable to specific services and/or features that are a part of, or may be from time to time, made a part of, the Platform (collectively, the “Additional Terms”). Subject to applicable law, the Additional Terms are a part of these Terms and are expressly incorporated herein by this reference. If you do not agree to these Terms, you may not use the Platform.
2. DESCRIPTION AND LIMITATIONS OF OUR PLATFORM; FOOD PROVIDERS AND DELIVERERS ARE INDEPENDENT
We provide a technology platform and associated support services that make it easier for you to search, select and order food for pick-up or delivery.
We are not a caterer, restaurant, or other food preparer (each a “Food Provider”). The Food Providers available through our Platform are independent of ezCater and are subject to laws, rules, regulation, and standards regarding their businesses and services.
We also are not a delivery service and instead rely upon the Food Providers and other providers of delivery services to deliver food ordered through our Platform (each a “Deliverer”). Those Deliverers are independent of ezCater and are subject to laws, rules, regulations and standards regarding their businesses and services.
We do not verify, and are not responsible for, any Food Provider’s or Deliverer’s compliance with the laws, rules, regulations, and standards regarding their businesses and services. We do not assess or guarantee the quality or suitability of any Food Provider’s food, products, services, menus, descriptions or other disclosures or of any Deliverer’s services, and we are not responsible for any Food Provider’s or Deliverer’s acts or omissions.
You understand and agree that ezCater is not liable for any losses, damages, liabilities, lawyers’ fees, or other expenses caused by the acts or omissions of a Food Provider or Deliverer. That said, we strive to work with Food Providers and Deliverers that our customers value, so if you have any questions, comments, or concerns about a Food Provider or Deliverer, we encourage you to email us at [email protected].
To use the Platform, you must be—and you represent and warrant that – (i) you are at least 18 years of age, (ii) neither you nor any organization on whose behalf you are using the Platform has been previously been banned or removed from the Platform, and (iii) you have the ability and authority to agree to these Terms.
4. ACCOUNT REGISTRATION AND USE
4.1 Account Registration and Confidentiality. You are required to create an account to use parts of the Platform. During the registration process for your account, you must provide us with your email address and a password (that together will serve as your login credentials) and you may be required to provide additional information, such as your name, phone number and/or a credit card number. You understand and agree that it is your responsibility to ensure that your password remains confidential and secure. You also agree to keep all of the information you provide us up-to-date.
4.2 Unauthorized Account Use. You are responsible for notifying us if you become aware of any unauthorized use of or access to your account. To notify us, please email us at [email protected]. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. By creating an account with us, you agree that you are fully responsible for all activities that occur under your login credentials and that we may assume that any communications we receive through your account have been made by you.
5. INTELLECTUAL PROPERTY OWNERSHIP
The Platform, and all materials contained in and on the Platform, including all intellectual property rights in the Platform, are the sole and exclusive property of us and our licensors. Except for the limited license expressly granted by us to you under these Terms, no other rights or licenses are granted to you under these Terms, either expressly, by implication or otherwise. All rights not expressly granted by us in these Terms are expressly reserved.
6. USER CONTENT AND SUBMISSIONS
6.1 User Content and Posts. The Platform may enable you to submit, post, upload, or otherwise make available (collectively, “Post”) content, such as reviews, photos, ratings, and other content such as comments, ideas, and other feedback (collectively, “User Content”). User Content may be viewable by other users and may include information about you.
6.3 User Content Representations. You acknowledge and agree that all User Content that you Post is your responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that we do not control, and are not responsible for, User Content, and that by using the Platform, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors or other errors. You agree that you will indemnify, defend, and hold harmless us for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
6.4 User Content Review and Use. You acknowledge and agree that we and our designees may, at our discretion, pre-screen User Content before its appearance on the Platform. However, we do not assume any obligation to pre-screen User Content. You further acknowledge and agree that we reserve the right (but do not assume the obligation) in our sole discretion to reject, move, edit or remove any User Content for any reason, in our sole discretion. You acknowledge and agree that we do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of and reliance on User Content.
6.5 Ratings and Reviews. When you Post a rating or review about a Food Provider or Deliverer, you shall ensure that (i) your rating or review is based on your first-hand experience with the Food Provider or Deliverer within the thirty (30) days prior to your rating or review; (ii) you do not have a proprietary or other affiliation with the Food Provider, Deliverer, or any of their competitors; (iii) you do not draw any legal conclusions regarding the Food Provider’s or Deliverer’s products, services, or conduct; and (iv) your review complies with these Terms. We may remove any rating or review if we determine, in our sole discretion, that it violates these Terms or diminishes the integrity of the ratings and reviews.
You consent to accept and receive communications from us, including e-mail, calls, push notifications and text messages to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which may deliver prerecorded messages. Any text messages we send to you are subject to our SMS Terms & Conditions. You may opt-out of receiving certain communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Platform.
8.1 Payment Authorization. You authorize us to charge all amounts owed for orders you place to the payment method you specify at the time of purchase. If you pay any amounts with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase.
8.2 Cancellations; No Shows. If you cancel your order, you may be charged some or all of the amount of the order, depending on the policy of the Food Provider. We also reserve the right to charge you the full order amount, if you, or the person you designate, is not at the delivery location you specify when the order is delivered or if you fail to pick up a “take-out” or “pick-up” order from a Food Provider.
8.3 Refunds. Any payments you make are final and non-refundable.
8.4 Other Fees. We reserve the right to establish, remove, and/or revise fees, or other amounts for any or all services or features we provide through the Platform
8.5 Rewards Program. We currently offer the ezRewards loyalty program where you can earn points for purchases of goods or services or other activities (the “Rewards Program”). In our discretion, we may also distribute points for other reasons from time to time. Points may be redeemed for certain non-cash rewards that we may offer from time to time, are non-transferrable, may not be resold, and are not redeemable for cash. You may review the terms and conditions of the Rewards Program in your ezCater account. You agree we may change the terms and conditions of the Rewards Program, terminate the Rewards Program, or expire, deduct, limit, or modify your Rewards Program points at any time for any reason, including in the event we determine or believe that your participation in the Rewards Program was in error, fraudulent, illegal, or otherwise in violation of these Terms.
8.6 Courtesy/Promotional Credits and Other Discounts, Promotions and Offers. From time to time, we may offer courtesy/promotional credits or other discounts, promotions or offers. Any courtesy/promotional credits that you receive may only be used to purchase goods or services, are non-transferrable and are not redeemable for cash. Other discounts, promotions or offers are also non-transferrable and are not redeemable for cash. We reserve the right to expire, limit, or modify any courtesy/promotional credits or other discounts, promotions or offers at any time. If your account is cancelled for any or no reason, you may forfeit any pending, current, or future credits and any other forms of unredeemed value in or associated with your account without prior notice to you.
9. LICENSE AND PROHIBITED CONDUCT
9.2 Prohibited Uses. Use of the Platform for any illegal purpose—or for any other purpose not expressly permitted in these Terms—is strictly prohibited. Without limitation, you will not use the Platform to:
- Post User Content that: (i) harasses, abuses, or threatens any other person, or that contains obscene content; (ii) is false, misleading, or inaccurate; (iii) degrades or discriminates against others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability, or any other classification; (iv) is indecent, offensive, harassing, violent, hateful, inflammatory, unlawful, harmful, tortious, defamatory, libelous, or invasive of another’s privacy; (v) promotes sexually explicit or pornographic material, violence, or any illegal acts; (vi) infringes the legal rights of any person or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms; or (vii) gives the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case;
- Promote any commercial purpose, such as to benchmark or compile information for a product or service;
- Copy, download (other than through page caching for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, “mirror,” duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Platform, by any means except as provided for in these Terms or with our prior written consent;
- Scrape, access, monitor, index, frame, link, or copy any content or information by accessing the Platform in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Platform through a browser or accessing the Platform through any API provided or approved by us;
- Breach the restrictions in any robot exclusion headers of the Platform, if any, or bypass or circumvent other measures employed to prevent or limit access to the Platform;
- Advocate illegal activity or discuss illegal activities with the intent to commit them;
- Engage in money laundering or any other fraudulent activity;
- Make available any material that contains any software, device, instructions, computer code, files, programs, and/or other content or features designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, malware, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code);
- Do anything that could disable, overburden, or impair the proper working of the Platform;
- Impede or otherwise prohibit communication or disrupt user discussion;
- Post, utilize, or otherwise make available any other party’s intellectual property, unless you have the right to do so, or remove or alter any copyright, trademark, or other proprietary notice contained on the Platform;
- Post any trade secrets or other confidential information, or any material that you do not have a right to make available under any law or contractual relationships;
- Falsely state or otherwise misrepresent your affiliation with a person or entity;
- Impersonate any person or entity in a manner that does not constitute parody;
- Solicit personal or sensitive information from other users;
- Send spam, commercial electronic messages, or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Platform;
- Interfere with any other party’s use and enjoyment of the Platform.
10. LEGAL COMPLIANCE
12. EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as below in the section entitled “Warranties, Disclaimers, and Limitation of Liability.” Accordingly, some of the below limitations may not apply to you. If you are a resident of a U.S. state that does not permit the exclusion of certain warranties and liabilities, then the limitations in the “Warranties, Disclaimers, and Limitation of Liability” section below will apply to you to the extent permitted by law.
If you are a resident of New Jersey, the provisions in subsection 13.2 below apply to you to the extent permitted by law.
13. WARRANTIES, DISCLAIMERS, AND LIMITATION OF LIABILITY
13.1 Disclaimer of Warranties. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EZCATER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, EZCATER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE PLATFORM, OR THAT YOUR USE OF THE PLATFORM WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE (INCLUDING THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS).
EZCATER DOES NOT ASSESS OR GUARANTEE THE QUALITY, SUITABILITY, LEGALITY, SAFETY OR ABILITY OF FOOD PROVIDERS, DELIVERERS OR OTHER THIRD-PARTY PROVIDERS. EZCATER RELIES UPON FOOD PROVIDERS TO PROVIDE ACCURATE CALORIC, ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. EZCATER RELIES UPON DELIVERERS TO PACKAGE, TRANSPORT AND DELIVERFOOD SAFELY AND IN ADHERENCE TO FOOD SAFETY CODES. IN ADDITION, EZCATER DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL, CALORIC, AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, DELIVERY AVAILABILITY OR DELIVERY AREAS, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, INFORMATION PROVIDED ON THE PLATFORM, AND ANY SERVICE OR PRODUCT REQUESTED THROUGH THE PLATFORM, INCLUDING FOOD PRODUCT AND DELIVERY SERVICES, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
13.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL EZCATER OR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF PROFITS, DATA, USE, REVENUE OR REPUTATION OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON THE SERVICES PROVIDED ON OR THROUGH THE PLATFORM, YOUR INABILITY TO ACCESS OR USE THE PLATFORM, ANY CONTENT, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE PLATFORM, OR ANY LINK PROVIDED ON THE PLATFORM, WHETHER OR NOT EZCATER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE FOOD SERVICES YOU HAVE PURCHASED THROUGH THE PLATFORM TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A FOOD SERVICE, $100.
13.3 Reasonability of Disclaimers and Limitations. YOU AND WE AGREE THAT THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE MATERIAL, BARGAINED-FOR BASES OF THESE TERMS, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THESE TERMS AND IN THE DECISION BY EACH PARTY TO ENTER INTO THESE TERMS. YOU AND WE AGREE THAT THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH THE PLATFORM OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM, EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THESE TERMS.
13.4 California Waiver. If you are a California resident, you hereby waive California Civil Code § 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others.
WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
15. THIRD-PARTY LINKS AND SERVICES
16. MODIFICATION AND TERMINATION
16.1 Modification of Platform. We reserve the right at any time to modify or discontinue, temporarily or permanently, the Platform or any part thereof. We may do this with or without providing notice to you of the modification or discontinuance. We will not be liable to you or any third party for any modification, suspension, or discontinuance of the Platform.
16.2 Termination. We may, in our sole and absolute discretion, terminate, suspend, or otherwise deny your access to all or part of the Platform at any time. If we terminate your right to access the Platform, these Terms will terminate, and all rights you have to access the Platform will immediately terminate. Even if these Terms terminate, certain provisions of these Terms will still apply post termination, including without limitation the “Mandatory Arbitration and Class Action Waiver” provisions. Termination of your account may also include, at our sole discretion, the deletion of your account and/or User Content. If we delete your account or User Content, you will not be able to retrieve any information related to your account except as required by applicable law.
17. NOTICE OF INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property of others and require you to do the same. For this reason, it is our policy to terminate the account of a user who is deemed to infringe third-party intellectual property rights and/or to remove User Content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Platform, please send a written notice to our Copyright Agent at the address below that includes all of the following information.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interests. For example, if you are the owner of a copyright, your notice to us must include your signature.
- A description of your copyrighted work or other intellectual property that you claim has been infringed. For example, this means that you could include a written description of the work you believe to be infringed or, for images, you could also copy-paste the image of the work you believe to be infringed into your notice to us.
- A description of where the material you claim is infringing is located on the Platform. For example, providing us with a website URL or screenshot of the relevant page of our mobile app is the quickest way to help us locate content quickly.
- Your address, telephone number, and email address.
- A 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.
- A statement by you made under penalty of perjury that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
We include the information in this section solely to comply with our rights and obligations under the Digital Millennium Copyright Act (“DMCA”) and other applicable law. However, you should not construe this section as legal advice to you. You should only send your notice to us after consulting with your legal counsel. Please also note that, pursuant to 17 U.S.C. § 512(c), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Our copyright agent can be reached as follows:
Attn: Copyright Agent
40 Water Street, 5th Floor
Boston, MA 02109
The above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please email us at [email protected].
18. MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
18.1 Application. You and ezCater agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver for Residents of the United States” is intended to be interpreted broadly and governs any and all disputes between you and ezCater. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and ezCater, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
18.2. Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute directly with us before taking any formal action, by contacting us at the address or email address set forth in Section 22 below. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and ezCater agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and ezCater agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
18.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), as long as the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of ezCater shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions.
18.4 Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
18.5 Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (iii) send one copy of the Demand for Arbitration to us at: ezCater, Inc., 40 Water Street, 5th Floor, Boston, MA 02109. Attn: Legal Department.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, ezCater will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, ezCater will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Suffolk County, Massachusetts, United States, and you and ezCater agree to submit to the personal jurisdiction of any federal or state court in Suffolk County, Massachusetts in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
18.6 Class Action Waiver. YOU AND EZCATER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and ezCater expressly waive any rights to file a class action or seek relief on a class basis.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
18.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
18.8 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at ezCater, Inc., 40 Water Street, 5th Floor, Boston, MA 02109 Attn: Legal Department. Your written notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) January 1, 2020; or (ii) your first date that you used the Platform that contained any versions of the Terms that included this version of the Mandatory Arbitration and Class Action Waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver”. If you opt out of these arbitration provisions, ezCater also will not be bound by them.
18.9 Changes to This Section. ezCater will provide thirty (30) days' notice of any material changes to this section by posting notice on the Platform or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Platform.
18.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Platform.
19. CONTROLLING LAW
These Terms shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts consistent with the Federal Arbitration Act, notwithstanding its conflicts of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and we agree that the dispute must be initiated and conducted exclusively in the state or federal courts of Suffolk County, Massachusetts, and you and we consent to the exclusive jurisdiction of such courts.
20. CHANGES TO THESE TERMS
We may revise these Terms at any time. If we revise these Terms, we will give you notice of any revisions in accordance with legal requirements. If you do not agree to, or cannot comply with, any modified Terms, you must stop using the Platform. Your continued use of the Platform after any such update constitutes your binding acceptance of such changes. The Terms were most recently updated on the last modified date at the top of this document.
21. GENERAL TERMS
21.1 Force Majeure. Under no circumstances shall ezCater or its licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
21.2 Waiver. If we fail to insist that you perform any obligations under these Terms, that will not mean that you do not have to comply with your obligations. If we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.
21.3 Severability. Each provision of these Terms operates separately. If any court or relevant authority decides that any provision is unlawful or unenforceable, the remaining provisions will remain in full force and effect.
21.4 Survival. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
21.5 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. This means that unless we say otherwise in these Terms, no one other than you can benefit from the contract set forth between you and us in these Terms.
21.6 Entire Agreement. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and ezCater, and take precedence over any prior agreements between you and ezCater relating to the Platform, except as expressly provided herein.
21.7 Assignment and Succession. You may not assign or delegate any rights or licenses granted to you by these Terms. ezCater may assign or delegate any rights or licenses granted to us by these Terms without restriction. These Terms bind and inure to the benefit of your and our successors and those to which you or we have assigned legal responsibilities.
21.8 Relationship Between You and Us. No agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. Put another way, ezCater is an independent contractor, and you agree that ezCater is not responsible for any information you convey, in any manner, and has no control over any actions you take or statements that you make.
21.9 Electronic Agreement. You agree that these Terms, and any other agreements made by and between you and us, in electronic form are as legally binding as if made in physical written form.
21.10 U.S. Government Users. If you are using the Platform for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers.
21.11 Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
21.12 Notices. We may deliver notice to you by email, posting a notice on the Platform, or by any other method we choose. Any such notice will be effective when we send, post, or otherwise dispatch it. If you give notice to us, it will be effective when we receive it by mail at the address set forth in Section 22 below.
22. CONTACT US
If you wish to contact us or have any questions about these Terms, please email us at [email protected] You may also contact us by mail at:
40 Water Street
Boston, MA 02109
Attn: Legal Department
If you are a California resident, 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 North Market Blvd., Suite N 112 Sacramento, CA 95834. You may also call them at (800) 952-5210 or (916) 445-1254.