Welcome and thank you for your interest in www.dished.co (the "Website", “Site” or "Platform"), and our mobile application Dished (the “App”) owned and operated by Dished Holdings Inc., a Delaware corporation, together hereafter referred to as “Dished,” "company", “us”, "our" or “we”.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION, ARBITRATION PROVISIONS AND CLASS ACTION WAIVER AND ACCEPT ALL OF THE TERMS. YOU MAY NOT USE OR ACCESS OUR PLATFORM IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
The following Terms of Service are a legally binding contract between you and Dished regarding your use of the Service. Please read the following Terms of Service ("Terms" or "Agreement") carefully before accessing or using any of the Services. Each time you access or use the Service, you, and if you are acting on behalf of a third party, such third party, agree to be bound by these Terms whether or not you register with us; this includes merely visitors to our Marketplace. If you do not agree to be bound by all of these Terms, you may not access or use the Service.
You acknowledge and agree that all users of our Services are independent contractors and that Dished is not a party to any sale, agreement, arrangement or transaction between users of our Platform. No agency, partnership, joint venture, or employment relationship between Dished and any user of our Services is created as a result of these Terms of Service or any user's access to, or use of, any part of the Platform.
Dished does not endorse any users of our Services (Consumers or Dishers), and has no control of the Chef Offerings sold by the Disher, or the payment for the Chef Offerings by the Consumer. It is within the sole and absolute discretion of the users of our Services to engage one another through our Services. You should always exercise responsibility, due diligence and care when deciding whether to engage and interact with any other user as either a Consumer or a Disher.
You agree that the use of our Services is at your sole risk and by using the Platform, you understand and agree that any legal remedy or recovery that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties and not Dished. You agree not to attempt to impose liability on, or seek any legal remedy from Dished with respect to such actions or omissions.
Furthermore, you hereby agree that Dished shall have no liability for any damages or injuries resulting from your use of our Platform, any food offered on our Platform, Chef Offering purchased in our Marketplace, and any engagement or interaction with another user by reason of your access to, and use of, our Platform or Services.
In addition, certain areas of our Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
Dished may change this Agreement at any time by posting an updated Terms of Service on this Website. If any amendment to these Terms is unacceptable to you, you shall cease using this Marketplace. If you continue using the Marketplace, you will be constructively deemed to have accepted the changes.
1. Description of Service
Chef Offerings advertised on our Services may not be available in all locations. Before making a purchase please confirm with a Disher that they are able to provide you with pick-up or delivery of their Chef Offerings.
- a. Dished is an online Marketplace venue that connects Consumers with Dishers for the purchase of Chef Offerings. Dishers may advertise the Chef Offerings for sale on the Marketplace and set their own prices. Chef Offerings posted to our Marketplace by Dishers are listed in the order they are received by Dished. Dishers may offer their Chef Offerings within their chosen geographic area and set the days, and times, for pick-up or delivery.
- b. Purchases on Dished can be made in the following manner:
- i. Chef Offerings available for sale by a Disher may be added to your shopping cart and checked-out;
ii. A menu booking (“Menu Booking”) may be placed for an event based upon a menu that a Disher has published in our Marketplace;
iii. A Consumer can request a Disher to create a direct booking (“Direct Booking”) proposal for a customized specific event based upon information provided by the Consumer.
- c. Our Service includes the Dished Website and Dished App content, systems, procedures, processes and technologies, and; any software, made available by or on behalf of Dished.
- d. Any modifications and new features added to the Service are also subject to this Agreement.
- e. Dished reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to our Service and its components (including all intellectual property rights) will remain with, and belong exclusively to Dished.
2. Eligibility for Our Service
- a. Consumer. If you are a Consumer, you represent and warrant that you have attained the age of majority where you reside (18 years of age in most jurisdictions) and are otherwise capable of entering into binding contracts including this Agreement.
- b. Disher. If you are a Disher, you represent and warrant that you have attained the age of majority (18 years of age in most jurisdictions) where you sell your Chef Offerings, and have received any required legal authorization, permits or licensure, permitting you to produce and sell your food products and your Chef Offerings.
3. Accounts and Registration
- a. To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, date of birth, e-mail address, physical address, phone number or other personal information).
- b. Dishers on our Marketplace will also be required to provide, without limitation, your business entity information, a picture ID (drivers license or passport), information regarding any credentials, certificates, licenses, permits or registration regarding your legal ability to prepare and sell the food items (food handler certificate). Some of this information may be of a confidential nature and may include personal identifying information (all "Your Information").
- c. Disher must also consent to a background check and may be required to submit to an interview by Dished.
- d. If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
4. Account Management
- a. Keep Your Password Secure. If you have been issued an account by Dished in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Dished, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Dished immediately.
- b. Keep Your Details Accurate. Dished may send notices to the email address or text messages to your mobile phone registered with your account. You must keep your email address, mobile phone number and, where applicable, your contact details and payment details associated with your account current and accurate.
- c. Dishers must forward to Dished all new credentials, certificates, licenses, permits or registrations when they have been renewed following expiration.
- d. We reserve the right to modify, suspend or terminate the Service, any user account or your access to the Service for any reason, without notice, at any time, and without liability to you.
- e. You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
- f. We reserve the right to refuse to issue an account to anyone or permit access to the Service to anyone for any reason at any time.
5. Purchases and Prices
- a. All purchases of Chef Offerings, including prepared meals, Menu Bookings and Direct Bookings, will be conducted in the Marketplace and payments will processed by a secure third party payment processing service provided by Dished.
- b. All prices displayed in our Services are in U.S. dollars unless otherwise indicated.
- c. All applicable taxes and other charges, including delivery charges are additional and payable by Consumer.
Dishers, and not Dished, are solely responsible for calculating and collecting any taxes due on a sale including, without limitation, all sales and other taxes or duties associated with the purchase and sale of Chef Offerings through the Marketplace, and remitting those taxes to the proper federal, state, or local tax authority.
7. Payments; Fees
- a. Consumers acknowledge and agree that Dished will charge service fees to the Consumer for purchases made on our Marketplace. Fees will be added to your purchase at the time of cart checkout, or at the time you remit payment to a Disher for a Menu Booking or a Direct Booking. Payments will be processed by a secure third party payment processing service we will make available to you. To use a credit card for any transactions, Consumers must have a valid credit card on file with the third party credit card processor, who may, store your credit card information for future use.
- b. Dishers acknowledge and agree that Dished will charge service fees to the Dishers for purchases made on our Marketplace at the time of cart checkout, or at the time you receive payment from a Consumer for a Menu Booking or a Direct Booking. Fees will be subtracted by the secure third party payment service from the funds paid to the Dishers and transferred to Dished. Dished also reserves the right to change our fees at any time and in our sole discretion and without advance notice.
- c. Any payment processing fees and any ancillary charges required by the selected method of payments are the sole responsibility of the Consumer and Disher respectively and not Dished.
- d. If you have any questions regarding your transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your personal financial information, you must contact the credit card provider, bank or third party providing the method of payment and not Dished.
- e. Any delivery fees, and all fees and charges associated with transporting and handling, are the responsibility of either the Consumer or the Disher as stated in the Chef Offering listing, or agreed to by the Consumer and Disher in the course of their transaction. Dished shall not be responsible for any delivery, handling or transportation associated expenses.
Dished is not directly involved in the purchase and sale transaction between Consumer and Disher but we want the users of our Service to be satisfied so we have provided the following return policy for our users:
- a. Individual Dishers will have the ability to define their own refund, return and exchange policies. If you are dissatisfied with your purchase or are requesting a refund or exchange please contact the Disher directly.
- b. If Consumer and Disher are not able to resolve a dispute, the Consumer can contact Dished using the contact information at the end of this document for a review. Upon being internally reviewed and if approved by Dished, a Consumer will get a partial or full refund.
9. Consumer Account; Non-Circumvent
- a. Consumers may create a free Dished account. However, if you do purchase the Chef Offerings of one, or more, of the Dishers on our Service, you agree that you will be responsible for, and pay the fees charged by the Disher according to the terms you have agreed upon with the Disher. Your failure to pay the Disher may result in the immediate termination of your Dished account.
- b. Consumers and Dishers are prohibited from circumventing Dished for the sale and purchase of Chef Offerings listed on the Marketplace. Users may not contact another user in any manner whatsoever with the intent and purpose of avoiding Dished Services. Any violation of this non-circumvent term may result in the immediate termination of either the Consumer or Disher account, or both.
10. Disher Account; Disher Fees
- a. In order to participate in our Marketplace community, Dishers must create a free account. While the Disher Account is free, we do charge the Disher certain fees for various transactions completed using our Platform and Services. Dished reserves the right, with the consent of the Disher, to convert this free account to a paid account at any time. If consent is not provided the Disher account will terminate within 30 days of delivery of the notice to convert.
- b. The Disher agrees to pay Dished a fee calculated on the retail price of each sale made by a Disher to a Consumer ("Sales Commission") using our Marketplace. Please contact us at firstname.lastname@example.org for a current list of the fees (fees are subject to change).
- c. By completing your registration you authorize Dished through its secure third party payment processor to deduct any Sales Commissions due for Chef Offering sales, and any other charges incurred in connection with your use of the Dished Services, and forward those funds to Dished.
- d. Consumers and Dishers are prohibited from circumventing Dished for the sale and purchase of Chef Offerings listed on the Marketplace. Users may not contact another user in any manner whatsoever with the intent and purpose of avoiding Dished Services. Any violation of this non-circumvent term may result in the immediate termination of either the Consumer or Disher account, or both.
11. Independent Contractors; No Guarantees, Warrantees or Endorsements
Dished is not an employer, agent or representative of either a Consumer or a Disher. Consumers and Dishers are independent contractors and Dished does not prepare, store, sell, deliver or perform Chef Offerings, and is not a party to any sale between users for the Chef Offerings. Dished is only a technology company and Marketplace venue that provides a Platform on which users can meet and independently decide whether or not to engage with each other for the purchase of Chef Offerings. Dished does not have control over the quality, suitability, safety, legality or any other aspect whatsoever of any Chef Offerings provided by Dishers, nor of the integrity, responsibility or any of the actions or omissions of any Disher or buyer. Disher does not control or guarantee the ability of Consumers to pay for Chef Offerings purchased through the Service, or that a Consumer or Disher will actually complete a transaction or deliver the Chef Offerings purchased. Dished makes no representations, guarantees or warranties whatsoever with respect to Chef Offerings offered by Dishers through the use of the services, whether in public, private, in online or offline interactions, or about the accreditation, registration, certification, permitting or licensing of any Disher for any purpose. Furthermore, although a Disher may represent that Chef Offering preparation is in accordance with special dietary, health or allergic-specific standards, Dished does not independently verify such representations, and Dished shall not be held liable for any injuries, damages or losses resulting from the consumption of any Chef Offering offered by Dishers that is unhealthy, or that does not otherwise meet the expectation of a buyer.
12. Terms for Dishers; licenses, Permits and Disher Qualifications
Food handling safety is extremely important to us. Every Disher is expected to follow safe food handling standards set by local, state and federal laws. All Dishers are required to comply with any required health and safety inspections, fire codes, zoning requirements, and to obtain and comply with all licenses, permits, and certifications required to handle, cook, prepare, package, label and sell food ("Qualifications"). Dished may request a copy of your Qualifications and you hereby consent that we may post these Qualifications on our Marketplace as long as you maintain a Disher account with Dished.
Furthermore, you agree to the following terms:
- a. You agree that you will maintain reasonable procedures for identifying wholesome and unwholesome food and that those procedures will, and do, conform to accepted standards and guidelines within the food industry and that you will cooperate with any Dished inquiries to ensure the quality and implementation of those procedures.
- b. You warrant that all food advertised through the Services will be at all times properly stored while in your possession and custody.
- c. You agree that you will fully and promptly comply with any inquiry, request or order of any public health or safety official intended to ensure public health or safety and you will promptly notify Dished of any such inquiry, request or order.
- d. You warrant that the description of any food advertised on our Marketplace will be accurate and truthful.
- e. You, and not Dished, are solely responsible for calculating, collecting, and remitting any and all applicable taxes and other fees or payments to the local, state and federal agency responsible for collecting these taxes and fees on the Chef Offerings that you sell using our Services.
- f. You agree to defend, indemnify and hold harmless Dished and each of its officers, directors, employees and agents against and in respect of any loss, debt, liability, damage, obligation, claim, demand, fines, penalties, forfeitures, judgment, or settlement of any nature or kind, including without limitation all reasonable costs and expenses incurred (legal, accounting or otherwise) (collectively, “Damages”) arising out of, resulting from or based upon any claim, action or proceeding by any third party, including any governmental or regulatory body, alleging facts or circumstances constituting a breach of the obligations, representations or warranties contained in this Section. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
13. Labeling and Ingredients; Allergens
Disher agrees that for any Chef Offerings that require labeling, and when posting any food products in the Marketplace, the Disher will provide a list of ingredients contained in, or otherwise used to prepare the food, including any known allergens. Dishers must, if applicable, advise the Consumers that food may be prepared using the same equipment or in the same facilities that are used to prepare food containing other allergens. Dished is not responsible for the accuracy of the labeling of foods available through our Marketplace and shall not be liable for any illness, health problem, or other damages that may result from the consumption of any food purchased through the Marketplace.
14.Your Access and Use of our Services
- b. The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) you shall not access the Services in order to build a similar or competitive Service; and (iv) except as expressly stated herein, no part of the 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 Services shall be subject to these Terms.
- c. Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
- d. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.
- e. Our Services may have "publicly accessible areas" that allow users to post User Content (defined hereafter) that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that Dished shall not, under any circumstances, be liable in any way for any User Content.
- f. You shall not use any communication systems provided on our Services including, without limitation email and chat services for any commercial or solicitation purposes or to circumvent our Services.
- g. You shall not solicit for commercial purposes any users of our Services, that are not intended by the purpose of our Services, without our prior written permission.
- h. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Services.
15.Privacy and Your Personal Information
16. Information Accuracy
- a. We make no representation as to the completeness, accuracy, or currency of any information appearing on our Service or other content available on this Site including, without limitation, information posted or uploaded by any Disher.
- b. We attempt to ensure that information on this Service is complete, accurate and current, however, despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date and Dished disclaims any responsibility or liability for such information. By using the Services, you agree to accept such risks.
17. Proprietary Rights
- a. As between Dished and you, Dished or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Dished.
18. Intellectual Property Rights
- a. Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), are owned by Dished. You may not use the Proprietary Marks without our prior written permission.
- b. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.
- c. The information, descriptions, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, "Our Content"), including, without limitation, all text, graphics, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
- d. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").
- e. All software used on, or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
- f. You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement..
19. Use of Our Content; License
- a. We grant you a limited, nonexclusive, non-transferable license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your noncommercial personal use provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.
- b. You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental. You may not decompile, reverse engineer, or disassemble Our Content, and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.
20. User Content Rights and Related Responsibilities; License
- a. "User Content" means, without limitation, any photos, digital files, images, personal profile (including your photo), artwork, videos, audio, messages, texts, reviews, comments, feedback, suggestions, documents, or any other content you upload, transmit or otherwise make available to Dished and its users via the Services. You represent and warrant that you own or otherwise control the rights to your User Content and that each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use those parts at any and all times. You further agree to indemnify Dished and its affiliates for all claims arising from or in connection with any claims to any rights in your User Content or any damages arising from your User Content.
- b. By submitting User Content on or through the Service, you grant Dished a perpetual, worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, re-use, reproduce, transmit, print, publish, display, exhibit, distribute, re-distribute, copy, host, store, cache, archive, index, categorize, comment on, broadcast, stream, download, edit, alter, modify, adapt, translate, create derivative works based upon and publicly perform such User Content without attribution, and without the requirement of any permission from, or payment to, you or to any other person or entity, in any manner including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes, and in any and all media now known or hereafter devised.
- c. In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
- d. You agree that any User Content you submit to our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.
- e. Dished expressly disclaims any liability for the loss or damage to any User Content or any losses or damages you incur as a result of the loss or damage of any User Content. It is your responsibility to back-up any User Content to prevent its loss.
- f. You are solely responsible for your User Content, including, without limitation, reviews, comments and feedback, and any damages suffered by Dished resulting there from.
- g. Dished may block, remove or return any User Content at any time for any reason whatsoever, or for no reason at all. We are not responsible for the authenticity, accuracy, completeness, appropriateness, or legality of User Content.
- h. You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
- i. User Content is not considered to be confidential. You agree not to submit User Content in which you have any expectation of privacy.
- j. Dished has no control over User Content once posted, and it is possible that visitors to the Site may copy User Content and repost it elsewhere.
- k. You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material. The following includes, without limitation, examples of the things you may not do:
- • Impersonate any person or entity.
- • Stalk, harass, defame, abuse, bully, threaten or otherwise violate the legal rights of others.
- • Advocate for or harass or intimidate another person.
- • Promote information that is false or misleading.
- • Promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable.
- • Promote violence, racism, bigotry, hatred or physical harm of any kind against any group or individual.
- • Transmit anything that exploits children or minors or that depicts cruelty to animals. Promote violence, racism, bigotry, hatred or physical harm of any kind against any group or individual.
- • Solicit personal information from anyone under the age of 18.
- • Use the service in an illegal manner or to commit an illegal act.
- • Transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware.
- • Transmit any content that contains video, audio, or images of another person without his or her permission or that of their legal guardian.
- • Promote material that exploits people in a sexual, pornographic or violent manner.
- • Provide instructional information about illegal activities.
- • Infringe upon someone else's trademark, copyright or other intellectual property or other rights.
- • Promote commercial activities including without limitation sales, contests, sweepstakes, barter, advertising, and business offers, which are not in accord with the purpose for which this Platform was designed.
21. User Comments
Dished does not investigate any posted user reviews, comments, suggestions or feedback for accuracy or truth. Users may be held legally responsible for damages suffered by other users or third parties as a result of their comments if they are legally actionable or defamatory. You agree that Dished is not legally responsible for any comments posted or made available on our Services by any users or third parties, even if that information is defamatory or otherwise legally actionable. Dished reserves the right to remove user comments or information that, in our sole judgment, violates this Agreement or negatively affects our Services.
22. Dished Mobile App Software License
We make software available to users in order to access the Dished App via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Dished does not warrant that the Mobile Software will be compatible with your mobile device. Dished hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Dished account on a mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright, trademark and other proprietary rights notices on the Mobile Software. You acknowledge that Dished may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Dished or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Dished reserves all rights not expressly granted under this Agreement. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Dished App.
23. Mobile Application from a Third Party App Store
The following applies to any App Store Sourced Application accessed through or downloaded from a Third Party App Store:
- b. You acknowledge that the Third Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- c. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the Third Party App Store, and the Third Party App Store will refund the purchase price for the App Store Sourced Application to you, and to the maximum extent permitted by applicable law, the Third Party App Store will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Dished and the Third Party App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Dished.
- d. You and Dished acknowledge that, as between Dished and the Third Party App Store, the Third Party App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- e. You and Dished acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Dished and the Third Party App Store, Dished, not the Third Party App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- f. You and Dished acknowledge and agree that the Third Party App Store, and their subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, the Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
24. Interruption of Service
- a. Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
- b. You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.
25. Suspension and Termination of Services
- a. We reserve the right to modify, suspend or terminate the Service, any user account or your access to the Service for any reason, without notice, at any time, and without liability to you.
- b. You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
- c. We reserve the right to refuse access to the Service to anyone for any reason at any time.
26. Third Party Links, Services and Content
27. Electronic Communications
- a. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by electronic means including, without limitation, email, telephone, text, SMS or by posting notices on our Services. When you use our Services, you consent to communicating with us electronically.
- b. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- c. Dished Services may now, or in the future, provide users the ability to participate in private chat communication activities ("Messages"). Dished does not monitor or moderate these Messages. All users agree that Dished shall not be responsible or liable for any content exchanged in any Messages between users. Furthermore, although we are not obligated to do so, we reserve the right at all times, and without liability, to i) remove or refuse to distribute any Messages on the Service; ii) to suspend or terminate users; and iii) block participants from using Dished Services. Users may report any content or actions of users that violate any of the terms of this Agreement by contacting us at email@example.com.
28. Electronic Transactions
- a. Your use of the Services includes the ability to enter into agreements, including these Terms, and to make purchase transactions electronically, including financial transactions, payments and purchases. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements, financial transactions, payments and purchases.
- b. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including purchases, financial transactions, notice of cancellation, policies, contracts, and applications.
- c. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Dished may collect and store location data to provide you the features and functionality of the Service. We may collect your location information through your IP address, WiFi, Bluetooth, and GPS coordinates (e.g., latitude/longitude) available through your mobile device. We may also gather information about your location using other technologies and sensors which may provide us with information about nearby devices, WiFi access points and networks, and nearby cell towers. We may also share de-identified (anonymous) location information with our partners for tailored advertising, attribution, analytics, research and other purposes. If you want to opt-out of the collection of your location data, please adjust your settings in your mobile device to limit our access to your location data.
30. Third Party Social Networking
Violating the security of our Website, App and Services is prohibited and may result in criminal and civil liability. Dished may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
32. Copyright and Intellectual Property Policy
We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Services which allegedly infringe upon another person's copyright, trademark or other intellectual property right, and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringe upon another person's intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").
A valid complaint under the DMCA must provide the following information in writing:
- a. An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
- b. Identification of the copyrighted work that you claim has been infringed.
- c. Identification of the material that is claimed to be infringing and where it is located on the Service.
- d. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, email address.
- e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.
- f. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. Federal law provides that if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees. The above information must be submitted to the Copyright Agent at: firstname.lastname@example.org
33. Dished Verification Disclaimer; Consumer Release
- a. Dished makes no representations, guarantees or warranty regarding any Disher representations about their Chef Offerings and their Qualifications including, without limitation, licenses, permits and certifications required to handle, cook, prepare, package and sell food. It is the sole responsibility of each Consumer to evaluate the Disher and their qualifications.
- b. Consumer agrees to release Dished, our agents and employees from all claims, demands and damages, actual and consequential and direct and indirect, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Dished Services to the fullest extent permitted by law.
34. INTERACTION WITH OTHERS
- a. You are solely responsible for determining the identity, suitability, and for your interactions with the people you choose to engage with through the Marketplace. When interacting with other users, you should exercise caution and common sense to protect your personal safety and property. We make no representations or warranties as to the conduct of the people you choose to interact with. While not obligated to do so, Dished reserves the right at its sole discretion to conduct any criminal or other background check or screenings at any time and using available public records.
- b. You assume all risk when using our Services, including, without limitation, all risks associated with any online or offline personal interactions with others.
- c. In no event shall Dished, its employees, consultants, executives or officers be liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of a user or anyone else in connection with the use of our Service including, without limitation, theft, bodily injury, emotional distress, death and/or any other damages resulting from communications with, contact with or personal interaction with other users.
35. Disclaimers; No Warranties
- a. ALL SERVICES AND CHEF OFFERINGS AVAILABLE FROM DISHED ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, DISHED AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “DISHED PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- b. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT SOME INTERACTIONS THROUGH OR RELATED TO OUR SERVICES MAY CARRY INHERENT RISK, AND BY USING THE SERVICES, YOU CHOOSE TO ASSUME THOSE RISKS KNOWINGLY AND VOLUNTARILY. THE CHEF OFFERINGS PREPARED BY DISHERS AND PURCHASED BY CONSUMERS MAY CARRY RISK OF ALERGIC REACTION, FOOD BORNE ILLNESS, BODILY INJURY, OR DEATH AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO USE OUR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS DISHED FROM ALL LIABILITIES AND CLAIMS THAT RESULT IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM RELATED TO YOUR USE OF OUR SERVICES.
- c. WE MAKE NO WARRANTY THAT (I) THE SERVICES OR THE CHEF OFFERINGS ADVERTISED ON OUR WEBSITE, INCLUDING THE CHEF OFFERINGS OF THE DISHERS WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY SERVICES, CHEF OFFERINGS OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM OR THOUGH THE MARKETPLACE WILL MEET YOUR EXPECTATIONS.
- d. THE SERVICES CAN INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. FURTHERMORE, THE INFORMATION OR SERVICES ON THIS SITE MAY BE OUT OF DATE. WE MAY MAKE CHANGES TO THE SERVICES, CHEF OFFERINGS AND INFORMATION ON THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES OR CHEF OFFERINGS LISTED HEREIN AT ANY TIME WITHOUT NOTICE, HOWEVER WE HAVE NO OBLIGATION TO DO SO.
- e. THE DISHED PARTIES DO NOT WARRANT THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY CHEF OFFERING DESCRIPTION OR OTHER CONTENT OFFERED AS PART OF THE SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
- f. IF YOU DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE.
- g. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME.
- h. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME PARTS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
36. LIMITATION OF LIABILITY
- a. IN NO EVENT SHALL WE BE RESPONSIBLE OR LIABLE TO YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY PERSONAL INJURY TO YOU OR OTHERS, OR LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES AND CHEF OFFERINGS; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
- b. THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER PRODUCTS OR SERVICES RECEIVED THROUGH, OR ADVERTISED IN, OUR SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OUR SERVICES.
- c. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
- d. OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT, OR ANY CLAIMS HEREUNDER, SHALL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE SUM OF ONE HUNDRED DOLLARS ($100).
- e. YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.All software used on, or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
- f. CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
- a. As a user of our Services, you agree that you will be personally responsible for your use of the Service and you agree to defend, indemnify and hold harmless Dished and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your infringement upon the property rights, intellectual property rights (copyrights and trademarks) or other rights of others; (iv) your violation of any third party right, including without limitation publicity, confidentiality, or privacy right; (v) serious physical or emotional harm, including death, to you or any third party resulting from your use of the Services, or (vi) any disputes or issues between you and any third party.
- b. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
38. General Release
- a. By using the Services, you release, to the maximum extent allowed by law, Dished, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, and any interaction with other users through the Services, including without limitation, any serious physical or emotional harm, including death, to you or any third party.
- b. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
39. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. THIS SECTION CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS SECTION ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
You and Dished agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Dished (including any claim or dispute between you and a third-party agent of Dished) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Services, the actions of Dished or its agents, or any products or Chef Offerings sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Dispute Resolution Section.
Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of North Carolina, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Dished, except as otherwise stated in this Agreement.
Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Dished, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by entering into these Terms, you and Dished are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. If you reside in the U.S., the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- c. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND DISHED AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DISHED AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution. We at Dished believe that most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Dished should be sent to the address provided in the Contact Us section at the end of these Terms of Service ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Dished and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Dished may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Dished or you shall not be disclosed to the arbitrator during the arbitration proceeding.
Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope and enforceability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Dished and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for USD $10,000 or less, Dished agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds USD $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys' fees will be governed by the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection titled
"Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the subsection above titled
"Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Arbitration Agreement above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of North Carolina in and for the County in which Dished has established its principal office. You and we agree to submit to the personal jurisdiction of the courts located within the State of North Carolina for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of North Carolina; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of North Carolina.
40. Governing Law
This Agreement, and any separate agreements whereby we provide you Services, shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in the State of North Carolina in and for the County in which Dished has established its principal office.
41. Our Remedies
- a. You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
- b. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the state courts of record or a United States District Court for the State of North Carolina in and for the County in which Dished has established its principal office. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
42. Disputes Between Users
The Dished Platform is a venue for connecting users of our Service and we are not a party to any contact or agreement between users. In the event that you have a dispute with another user, you release Dished and its affiliates, officers, directors, agents, subsidiaries, and employees from any and all claims, demands, or damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
43. Law Enforcement
- a. Dished is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Dished receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
- b. Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Dished may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. Dished will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
44. Notice To California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing, currently at: 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone, currently at (800) 952-5210 in order to resolve a complaint regarding our Site or to receive further information regarding use of our Site.
45. Amendments to this Agreement
We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
47. No Waiver
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
49. Entire Understanding
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at:
Our office address:
651 N Broad St, Ste 205 #5897
Middletown DE 19709
Last updated: August 8, 2022