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Terms of Service

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TRACKIN, CO. TERMS OF USE

Last Modified June 18th 2021

1. Acceptance of the Terms of Use and this Agreement.

Please read these terms of use (“Terms”) carefully. These Terms constitute a legal agreement (the “Agreement”) between you and Trackin, Co. a Delaware corporation (“Company,” “MobyDish” “we,” “us,” or “our”). This Agreement provides that all disputes between you and the Company will be resolved by binding arbitration. Your rights will be determined by a neutral arbitrator, and not a judge or jury, and your claims cannot be brought as a class action. Please review Section 13 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with the Company.

By accessing or using the website located at http://www.mobydish.com/ (“Website”) in any way, downloading, installing or using any other software supplied by the Company (the “Software”), accessing or using any information, services, features or resources available or enabled via the Website or Software (the “Platform”), clicking on a button, ordering from one of our employees or taking similar action to signify your affirmative acceptance of this Agreement, or completing the MobyDish ordering process, you hereby represent that:

(1) You have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at http://www.mobydish.com/terms/ or through the Platform;

(2) You are of legal age in the jurisdiction in which you reside to form a binding contract with Company and to use the Software and Website; and

(3) You have the authority to enter into the Agreement personally and, if applicable, on behalf of any company, organization or other legal entity you have named as the User during the MobyDish account registration process and to bind that company, organization or entity to the Agreement and other agreements with MobyDish.

The terms “you,” “User” and “Users” refer to all individuals and other persons who access or use the Website, Software, and/or Platform, including, without limitation, any of your heirs, successors or assigns, companies, organizations or other legal entities that register accounts or otherwise access or use the Platform through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Website, the Platform, or the Software.

The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Website, Software or Platform at any time, effective upon posting of an updated version of this Agreement on the Website or Software. You should regularly review this Agreement and the Website, as your continued use of the Platform after any such changes constitutes your agreement to such changes.

2. User Representations, Warranties and Covenants

By using the Platform, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation in using the Platform is for your sole, personal or internal business use. When using the Platform, you agree to comply with all applicable laws from your home nation, and the country, state and city in which you are present while using the Platform.

You may only access the Platform using authorized means. It is your responsibility to check to ensure you download the correct Software for your device. The Company is not liable if you do not have a compatible device or if you have downloaded the wrong version of the Software. The Company reserves the right to terminate your use of the Software and/or Platform should you be using the Software or Platform with an incompatible or unauthorized device.

By using the Platform, you agree that:

(a) You will only use the Platform for lawful purposes; you will not use the Platform for sending or storing any unlawful material or for deceptive or fraudulent purposes.

(b) You will not use the Platform to cause nuisance, annoyance or inconvenience.

(c) You will not use the Platform, or any content accessible through the Platform, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Restaurant (as defined in Section 3 below), or User, unless the Company has given you permission to do so in writing.

(d) You will not copy, download (other than through page caching for personal use, or as otherwise expressly permitted by this Agreement), 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 Software or Platform, by any means except as provided for in this Agreement or with our prior written consent..

(e) You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Platform except for your personal, noncommercial use.

(f) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

(g) You are aware that when requesting services by SMS text messages, standard messaging charges will apply.

(h) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Platform.

(i) You will only use the Platform for your own use and will not resell either the Software or Platform to a third party.

(j) You will not use the Website, Software or Platform in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server.

(k) You will not attempt to gain unauthorized access to any part of the Website and/or to any service, account, resource, computer system and/or network connected to any Company server.

(l) You will not deep-link to the Website or access the Website manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Website or any content on the Website, unless the Company has given you permission to do so in writing.

(m) You will not copy any content displayed through the Platform, including but not limited to any Restaurants’ menu content and reviews, for republication in any format or media.

(n) You will not conduct any systematic retrieval of data or other content from the Website, Software or Platform.

(o) You will not try to harm other Users or the Company, the Website, Software or Platform in any way whatsoever.

(p) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Website, Software or Platform.

(q) You will not abuse our promotional or credit code system by redeeming multiple coupons at once.

(r) You will not post 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;

3. The MobyDish Platform

You understand and agree that MobyDish provides a technology platform connecting you with Restaurants and others that provide the products and services offered through the Platform, and affiliates or third-party independent contractors who provide delivery services. You acknowledge and agree that MobyDish does not prepare or deliver food and has no responsibility or liability for the acts or omissions of any Restaurant, vendor or affiliate. MobyDish is not a restaurant or food preparation entity. The Restaurants available through our Platform (“Restaurants”) operate independently of MobyDish. MobyDish will not assess the suitability, legality or ability of any Restaurant. MobyDish is not responsible for the Restaurants’ food preparation or safety and does not verify their compliance with applicable laws or regulations. MobyDish has no responsibility or liability for acts by any third-party Restaurant, other than as stated herein. MobyDish does not guarantee the quality of the Restaurant’s products, nor does it guarantee the services provided by them. MobyDish does not independently verify, and is not liable for, representations made by Restaurants regarding their food, including, without limitation, any disclosures, photographs or images displayed through the Platform reflecting the menu items prepared by the Restaurants and/or delivered by Delivery Partners (defined below).

MobyDish is not a delivery company or a common carrier. Delivery and other services offered through the Platform may be provided by MobyDish affiliates (“Affiliates”). By accessing the Platform, you agree and acknowledge that the Affiliates, and not MobyDish, are solely responsible for the services provided to you by any Affiliate, or for any acts, omissions, errors or misrepresentations made by any Affiliate or independent third-party engaged by the Affiliate.

4. User Account

You are the sole authorized User of any account you create through the Platform. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account by minors. You may not authorize others to use your User account, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify the Company immediately. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an account or use the Platform if you have been previously removed by the Company, or if you have been previously banned from use of the Platform.

5. User Content

(a) User Content. The Company may provide you with interactive opportunities through the Platform, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit (“Make Available”) through the Platform. You hereby grant the Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with the Company’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant the Company a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you.

(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Restaurants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by the Company and do not represent the views of the Company or its affiliates. The Company does not assume liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Platform, you agree that: (i) you will base any Rating or Review on first-hand experience with the Restaurant or business; (ii) you will not provide a Rating or Review for any Restaurant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Restaurant or business and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews, we may exclude such User Content without notice.

6. Intellectual Property Ownership

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 Website, the Software and the Platform. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, the Software or the Platform, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Website, the Software and Platform are trademarks of the Company or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Software or the Platform.

7. Payment Terms

(a) Prices. You understand that: (a) the prices for menu items displayed through the Platform may differ from the prices offered or published by Restaurants for the same menu items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) the Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) the Company reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the services provided under this Agreement (other than taxes based on the Company’s income).

(b) Payment. Payment will be processed by the Company, using the preferred payment method designated in your account or the payment method you specify at the time of purchase. If you pay any amounts with a credit card, the Company 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.

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

(d) 8.2 Cancellations. If you cancel your order at least 48 hours before scheduled delivery you will receive a full refund, unless the applicable Restaurant requires a longer notice period. If you cancel your order within 48 hours, you will be charged a cancellation fee in the amount of 10% of the order amount, and you may be charged some or all of the amount of the order, depending on the cancellation policy of the Restaurant. The Company reserves 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.

(e) Promotional Offers. The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our Users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We encourage you to check back at our Website periodically if you are interested in learning more about how we charge for the Software or Platform.

(f) Fees for use of Platform. The Company may change the fees for use of our Platform and services as we deem necessary or appropriate for our business.

(g) Service Order Terms. These payment terms supplement and to not supersede the terms of payment agreed to by you at the time you submit your order for service. If there is any conflict between these payment term and the terms of your order, the service order terms shall control.

8. Third-Party Interactions and Links

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

9. Indemnification

You agree to indemnify and hold harmless the Company and its officers, directors, employees, agents, subsidiaries, predecessors, successors, assigns and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Website, Software or Platform; (c) your violation of this Agreement or the Company’s Privacy Policy; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Website, Software or Platform. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the terms in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Software or Platform. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Website, Software and/or Platform.

10. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE WEBSITE, SOFTWARE AND PLATFORM IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE, SOFTWARE AND PLATFORM AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE WEBSITE, SOFTWARE AND PLATFORM ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE WEBSITE, SOFTWARE OR PLATFORM, OR LINKS.

THE COMPANY DOES NOT WARRANT THAT THE WEBSITE, SOFTWARE OR PLATFORM WILL OPERATE ERROR-FREE OR THAT THE WEBSITE, SOFTWARE OR PLATFORM ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE WEBSITE, SOFTWARE OR PLATFORM RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

11. Internet Delays

The Company’s Website, Software and Platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in the Company’s Privacy Policy or as otherwise required by applicable law, the Company is not responsible for any delays, delivery failures, or other economic damage resulting from such problems.

12. Limitation of Liability

(a) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW THE COMPANY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE, SOFTWARE, OR PLATFORM INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, SOFTWARE, OR PLATFORM, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY RESTAURANT, VENDOR, AFFILIATE, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SOFTWARE OR PLATFORM, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) Cap on Liability. TO THE FULLEST EXTENT OF LAW THE COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF (a) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO THE COMPANY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR (b) ANY INJURY CAUSED BY THE COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

(c) 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.

13. Dispute Resolution and Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

(a) Generally. You and the Company agree that every dispute arising in connection with this Agreement, the Software or the Platform will be resolved by binding arbitration by a single arbitrator. This agreement to arbitrate includes all claims arising out of or relating to any aspect of this Agreement, the Software of the Platform, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. You understand and agree that, by entering into this Agreement, you are waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to waive, preclude, or otherwise limit the right of either party to: (i) pursue an enforcement action through the applicable federal, state, or local court if that action is available; (ii) seek injunctive relief in a court of law; or (iii) to file suit in a court of law to address an intellectual property infringement claim. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Arbitration Rules. Any arbitration between you and the Company will be conducted before a single arbitrator and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.

(c) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party (“Notice”). Notice to the Company shall be sent by email to: legal@mobydish.com with proof of delivery. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). Notice to you shall be sent to the email address associated with your User Account. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach a resolution within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding.

(d) Fees. The parties shall be responsible for their respective fees related to any arbitration, including attorneys fees. Any arbitration hearing will take place at a location to be agreed upon or the venue set forth in Section 15(b), but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a non-appearance based telephone hearing. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse the Company for all monies previously disbursed by the Company that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(e) No Class Actions. You and the Company agree that each may bring claims against the other only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(f) 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.

(g) Modifications to this Arbitration Provision. If the Company makes any future change to this arbitration provision, other than a change to the Company’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to the Company’s address for Notice, in which case your account with the Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

(h) Enforceability. If any portion of this Section 13 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.

14. Termination and Modification

(a) At its sole discretion, the Company may modify, terminate, or suspend or discontinue the Software or Platform, or may modify, suspend or terminate your access to the Software or the Platform, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Platform, the Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Platform is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

(b) The Company may revise the terms of this Agreement at any time in our discretion, upon thirty (30) days Notice. If we revise this Agreement, we will give you notice of any revisions on the Website. Please check the Website periodically for changes. If you do not agree to, or cannot comply with, any modified terms, you must stop using the Software, and Platform. Your continued use of the Software and Platform after any such update constitutes your binding acceptance of such changes. This Agreement was most recently updated on the last modified date at the top of this document.

15. General

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

(b) Venue and Choice of Law. This Agreement is governed by the laws of the state where the services giving rise to the dispute were performed, without giving effect to any principles that provide for the application of the law of any other jurisdiction. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and the Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the district where the services giving rise to the dispute were performed

(c) Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

(d) Consumer Complaints. In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

(e) Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following e-mail address: legal@mobydish.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by the Company.

(f) Electronic Communications. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing and sent by mail, hand-delivery, or courier.

(g) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

16. Privacy

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy, which is incorporated by reference into these Terms.

17. Contact Information

MobyDish welcomes any feedback at legal@mobydish.com.