The website located at fooding.plus(the “Site”) and the associate iOS and Android mobile application (the “App”) are copyrighted and belong to Fooding+. (“Fooding”, “us”, “our”, and “we”).
By accessing or using the App or the Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. You may not access or use the Services or accept the Agreement if you are not of legal age to agree to this Agreement. If you do not agree with all of the provisions of this Agreement, do not access and/or use the Services. If you are using the Services on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to this Agreement.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Account Creation.
In order to use certain features of the Services, you must register for an account with Fooding (“Account”) and provide certain information about yourself, such as name, email address, and location, as prompted by the Services registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Services or sending an email to our customer service stating such request. Fooding may suspend or terminate your Account in accordance with Section 9.
1.2 Account Responsibilities.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to use a unique password for your Account that is different from the passwords you may use on other sites. You agree to immediately notify Fooding of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Fooding cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Site and App
Subject to the terms of this Agreement, Fooding grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal use. Subject to the terms of this Agreement, Fooding grants you a non-transferable, non-exclusive, license to install and use the App, in executable object code format only, solely on your own handheld mobile device and for your personal use.
2.2 Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, or host the Site, App, or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site, App, or Services; (c) you shall not access the Site, App, or Services in order to build a similar competitive service; and (d) except as expressly stated herein, no part of the Site, App, or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site, App, or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site, App, or Services content must be retained on all copies thereof.
Fooding reserves the right, at any time, to modify, suspend, or discontinue the Site, App, or Services or any part thereof with or without notice. You agree that Fooding will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, App, or Services or any part thereof.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site, App, and Services are owned by Fooding or Fooding’s licensors. The provision of the Site, App, and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Fooding and its suppliers reserve all rights not granted in this Agreement.
2.5 App Platforms.
You acknowledge and agree that the availability of the App is dependent on the third party app platform from which you received the App, e.g., the Apple iPhone store (“App Platform”). You acknowledge that this Agreement is between you and Fooding and not with the App Platform. Fooding, not the App Platform, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Each App Platform may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable agreements, terms and conditions of use/service, and other policies of the applicable App Platform.
2.6 App Diagnostics and Data.
As a part of the App functionality and for other purposes, information may be collected by the App and Fooding’s third party service providers in the background from your phone including information about your usage of the App, and diagnostic information about the phone, its operating system, and any errors that are encountered. Such information may also include information provided by your operating system in accordance with your permissions settings (for example, location information and photo albums).
3. User Content
3.1 User Content.
“User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., content in the user’s profile), including text, photos, comments regarding dining experiences, and any other submissions not specifically included here. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Fooding. Because you alone are responsible for your User Content (and not Fooding), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Fooding is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Fooding an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, for the purposes of including your User Content in the Site and Services, including, but not limited to, using User Content in advertisements embedded in the Services and/or provided to other users through push notifications for the restaurants that you have visited and posted User Content for. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
If you provide Fooding any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Fooding all rights in the Feedback and agree that Fooding shall have the right to use such Feedback and related information in any manner it deems appropriate. Fooding will treat any Feedback you provide to Fooding as non-confidential and non-proprietary. You agree that you will not submit to Fooding any information or ideas that you consider to be confidential or proprietary.
4. Acceptable Use Policy.
The following sets forth Fooding’s “Acceptable Use Policy”:
You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party. If you are a proprietor of a restaurant that features information on the Services, you agree you will not post or solicit User Content designed to mislead other users of the Services or to artificially inflate the visibility or popularity of your business on the Services, including, but not limited to, the creation or solicitation of multiple accounts for purposes of posting positive materials about your business.
In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Services; or (g) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
You agree to indemnify and hold Fooding (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. Fooding reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Fooding. Fooding will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. Third Party Sites; Other Users
6.1 Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Fooding and Fooding is not responsible for any Third Party Sites & Ads. Fooding provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
6.2 Other Users.
Each Site user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content (including any recipes or reviews provided by other users) and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Service users are solely between you and such user. You agree that Fooding will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Service users, Third Party Sites, or any restaurant or business that you might choose to visit as a result of your use of the Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITE AND SERVICES (AND ALL CONTENT THEREIN) ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. THE CONTENT PROVIDED ON THIS SITE, WHETHER PROVIDED BY US OR OTHER USERS, IS FOR INFORMATION PURPOSES ONLY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation on Liability
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases. Your User Content may remain on the Services even after your account is terminated. Fooding will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.2-2.6, 3 –12.
10. Copyright Policy.
Fooding respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our Services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright agent for is:
Attn: Copyright Agent
11.1 No Support or Maintenance.
You acknowledge and agree that Fooding will have no obligation to provide you with any support or maintenance in connection with the Services.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Services. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Services. These changes will be effective immediately for new users of our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.3 DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Except for disputes brought in small claims court, all disputes, claims, demands, or causes of action between you and Fooding arising out of, relating to or in connection with the Site, App, Services, or this Agreement, including those related to data protection or privacy claims, shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for commercial arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. YOU AND FOODING AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. This Agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in these terms to the contrary, we agree that if Fooding makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice of to Fooding. Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879.
Notwithstanding the foregoing, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If the arbitration in this section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Los Angeles County, California. The Services and these terms and conditions are governed by the laws of the State of California without regard to conflict of law provisions. This section will survive termination of your participation in the Services.
11.4 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Fooding is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Fooding prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
11.5 Contact Information:
12. iTunes App Terms
The following additional terms and conditions apply to you if you are using the App from iTunes. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 12, the more restrictive or conflicting terms and conditions in this Agreement apply, but solely with respect to the App from iTunes. Fooding and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Fooding and you acknowledge that this Agreement is concluded between Fooding and you only, and not with Apple, and Fooding, not Apple, is solely responsible for the App and the content thereof. To the extent this Agreement provides for usage rules for the App that are less restrictive than the Usage Rules set forth for the App in, or otherwise is in conflict with, the iTunes Terms of Service, the more restrictive or conflicting Apple term applies.
12.3 Scope of License:
The license granted to you for the App is limited to a non-transferable license to use the App on an iOS product that you own or control and as permitted by the Usage Rules set forth in the iTunes Terms of Service.
Fooding is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Fooding’s sole responsibility.
12.5 Product Claims:
Fooding and you acknowledge that Fooding, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Fooding’s liability to you beyond what is permitted by applicable law.
12.6 Intellectual Property Rights:
Fooding and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Fooding, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
12.7 Legal Compliance:
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.