These TERMS OF USE (this “Agreement“) govern your use of all information, data, and other content (collectively “Content”) available via Oh Waiter’s website at www.OhWaiter.com/ (the “Site”) and are agreed to between you or, if you are accessing the Site or using the Content on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “You” or “Your”) and Oh Waiter, Inc. , with its principal place of business at 2461 Santa Monica Boulevard, No. 213, Santa Monica, CA (“Oh Waiter”).
By accessing or using any part of the Site or any Content, or by clicking “I agree” to this Agreement, you agree to enter into and be bound by this Agreement. If you are entering into this Agreement on behalf of an Entity, by accessing or using any part of the Site or any Content, you represent and warrant that you have authority to bind that Entity to this Agreement. If you do not have such authority, or you do not agree to be bound by this Agreement, do not access or use any part of the Site or any Content.
SECTION 14 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND OH WAITER ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT IN SECTION 14 WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND OH WAITER TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. PLEASE SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT.
1. Definitions. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
2. Term. This Agreement is entered into as of the earlier of the date You first access or use Site or any Content (the “Effective Date”) and will continue until terminated as set forth herein.
3. Modifications. Oh Waiter reserves the right, at any time, to modify the Site or any of the Content, as well as the terms of this Agreement, whether by making those modifications available on the Site or by providing notice to You as specified in this Agreement. Any modifications will be effective upon posting to the Site or delivery of such other notice. You may cease using the Site or Content or terminate this Agreement at any time if you do not agree to any modification. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Site or Content following such notice.
4. Eligibility. The Site is intended for use by individuals 18 years of age and older. By accessing or using the Site or any Content, you represent and warrant that you are over 18 years of age.
5. Access.
5.1 To Oh Waiter. Subject to Your compliance with this Agreement, Oh Waiter will permit You to access and use the Site and the Content solely for lawful purposes and only in accordance with the terms of this Agreement. You are solely responsible for obtaining and maintaining all equipment, facilities, and connectivity required to use the Site.
5.2 To Content. You may be provided with access to a variety of Content through the Site. All Content is owned by Oh Waiter or Oh Waiter’s third party providers. All Content is provided for informational purposes only, and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) use, alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Content. Oh Waiter has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Content provided by third parties through the Site. You are granted no licenses or rights in or to any Content.
6. Communications. Any communication or materials you transmit to or through the Site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like are non-confidential and nonproprietary. Anything that you transmit or post to or through the Site may be used by Oh Waiter for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Oh Waiter shall be free to use any ideas, concepts, know-how, or techniques sent to or through the Site for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing its products and services using such information, without compensation or acknowledgment to You.
7. Termination. This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination of this Agreement for any reason (1) all rights and subscriptions granted to You under this Agreement will terminate and (2) You will immediately cease all use of and access to the Site and all Content obtained prior to termination. Sections 1 (Definitions), 7 (Termination), 9 (Representations and Warranties), 10 (Disclaimers), 11 (Indemnity), 12 (Limitation on Liability), 13 (Consent to Process), 14 (Disputes), 15 (Governing Law), 16 (Notices) and 17 (Additional Terms) will survive any expiration or termination of this Agreement.
8. Suspension. Without limiting Oh Waiter’s right to terminate this Agreement, Oh Waiter may also suspend Your access to the Site, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Oh Waiter to be inappropriate or detrimental to Oh Waiter, the Site, or any other Oh Waiter customer or user.
9. Representations and Warranties. You represent and warrant to Oh Waiter that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf; (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement; and (d) Your use of and access to the Site and Content, will comply with all applicable laws, rules, and regulations and will not cause Oh Waiter itself to violate any applicable laws, rules, or regulations.
10. Disclaimers. THE Site, including all content, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Oh Waiter and its providers do not warrant or guarantee the accuracy, completeness, adequacy or currency of any Content and do not endorse the views or opinions that may be expressed or provided through the Site. Oh Waiter and its providers EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE Site, Content, AND THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, title or non-infringement. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Oh Waiter, ITS EMPLOYEES, PROVIDERS, AGENTS, or the Site, WILL INCREASE THE SCOPE OF, OR CREATE ANY WARRANTIES.
11. Indemnity. You hereby agree to indemnify, defend, and hold harmless Oh Waiter and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Site, including any Content; (2) any communications or materials You provide through the Site; and (3) Your breach of any representation, warranty, or other provision of this Agreement. Oh Waiter will provide You with notice of any such claim or allegation, and Oh Waiter will have the right to participate in the defense of any such claim at its expense.
12. Limitation on Liability. Oh Waiter will not BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE Site OR CONTENT, EVEN IF Oh Waiter HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF data, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. Oh Waiter’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT and its provision of the Site and all Content, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (1) AMOUNTS YOU ACTUALLY PAID TO OH WAITER FOR USE OF THE Site IN THE PRECEDING 3 MONTHS OR (2) $100. You agree THAT Oh Waiter WOULD NOT ENTER INTO THIS AGREEMENT or provide access to the site and content WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OH WAITER’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Analytics. Oh Waiter will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to and use of the Site.
14. Disputes.
14.1 Agreement to Arbitrate. Except as otherwise provided in Section 14.2, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 14.2, if any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the Rules of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Oh Waiter in Los Angeles, California, U.S.A. The arbitrator will apply the law set forth in Section 15 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
14.2 Exception to Arbitration. You agree that if Oh Waiter reasonably believes You have, in any manner, violated or threatened to infringe Oh Waiter’s intellectual property rights, then Oh Waiter may seek emergency, preliminary or other appropriate interim relief in the federal or state courts located in Los Angeles, California.
14.3 YOU MAY OPT OUT OF ARBITRATION. YOU CAN CHOOSE TO REJECT THE PROVISIONS IN THIS AGREEMENT REQUIRING ARBITRATION BY EMAILING AN OPT-OUT NOTICE TO ARBITRATIONOPTOUT@OHWAITER.COM (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN 30 DAYS AFTER (A) THE DATE YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME OR (B) THE DATE OH WAITER POSTS A NEW VERSION OF THIS AGREEMENT TO THE SITE.
15. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California (U.S.A.) as such laws apply to contracts between California residents performed entirely within California, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof. Subject to Section 14.1, each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court located in Los Angeles, California (U.S.A.), and You irrevocably submit to the personal jurisdiction and venue of such courts in any such action or proceeding brought in such courts by Oh Waiter.
16. Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Oh Waiter by postal mail to the address for Oh Waiter listed above. Oh Waiter may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to Oh Waiter in connection with Your use of the Site, provided that in the case of any notice applicable both to You and other users of Site, Oh Waiter may instead provide such notice by posting on Site. Notices provided to Oh Waiter will be deemed given when actually received by Oh Waiter. Notice provided to You will be deemed given 24 hours after posting to Site or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
17. Additional Terms. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Oh Waiter under this Agreement must be in writing or later acknowledged by Oh Waiter in writing. Any waiver or failure by Oh Waiter to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Oh Waiter of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. You may not assign or transfer either this Agreement or any of Your rights or obligations hereunder (in whole or in part and including by sale, merger, consolidation, or other operation of law) without Oh Waiter’s prior written approval. Any assignment in violation of the foregoing will be null and void. Oh Waiter may assign this Agreement to any party that assumes Oh Waiter’s obligations hereunder. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. The Site may contain links to third-party sites that are not under the control of Oh Waiter. Oh Waiter is not responsible for any content on any linked site and You access any third-party site from Site at Your own risk.