Effective as of July 18, 2022
PLEASE BE AWARE THAT THE SECTION OF THIS AGREEMENT ENTITLED “DISPUTE RESOLUTION” CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
USE OF THE SERVICES AND ODEKO PROPERTIES
The Platform, the Services, and the information and content available on the Platform and Services and all prior versions or branding of the Application, the Website and the Services (including the Cloosiv application) (each an “Odeko Property” and collectively the “Odeko Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Odeko grants you a limited license to use the Odeko Properties solely for your personal or internal business purposes. Unless otherwise specified by Odeko in a separate license, your right to use any and all Odeko Properties is subject to the Agreement.
Application License. Subject to your compliance with the Agreement, Odeko grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
Your Content License. By posting Your Content (as defined below) to the Platform, you grant Odeko a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, store, and prepare derivative works of Your Content. This allows us to provide the Services and to promote Odeko or the Services in general, in any formats and through any channels, including across any Odeko Services, third-party website, or advertising medium. You agree not to assert any moral rights or rights of publicity against Odeko for using Your Content. You also recognize Odeko’s legitimate interest in using it, in accordance with the scope of this license, to the extent Your Content contains any personal information. If you are a business entity, you grant Odeko a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use and display your name and all related graphics, logos, service marks, and trade names you provide to the extent necessary for Odeko to carry out its responsibilities under this Agreement.
Updates. You understand that Odeko Properties are evolving. As a result, Odeko may require you to accept updates to Odeko Properties that you have installed on your computer or mobile device. You acknowledge and agree that Odeko may update Odeko Properties with or without notifying you. You may need to update third-party software from time to time in order to use Odeko Properties.
Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Odeko Properties or any portion of Odeko Properties, including the Website, Application, or Mobile Ordering; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Odeko Properties (including images, text, page layout or form) of Odeko; (c) you shall not use any metatags or other “hidden text” using Odeko’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Odeko Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website or Application (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Odeko Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Odeko Properties. Any future release, update or other addition to Odeko Properties shall be subject to the Agreement. Odeko, its suppliers and service providers reserve all rights not granted in the Agreement.
Any unauthorized use of any Odeko Property terminates the licenses granted by Odeko pursuant to the Agreement.
Odeko Communications. By entering into this Agreement or using the Odeko Properties, you agree to receive communications from us, including via messages through the Application, e-mails, text messages and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Odeko Properties, updates concerning new and existing features on the Odeko Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Odeko and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL MATERIALS, YOU CAN (A) UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF AND/OR (B) UNSUBSCRIBE FROM PUSH NOTIFICATIONS BY FOLLOWING THE OPTIONS IN THE APPLICATION.
Registering Your Account. In order to access certain features of Odeko Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has an account with the provider of the Application for the user’s mobile device.
Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Odeko Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Odeko Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Odeko immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Odeko has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Odeko has the right to suspend or terminate your Account and refuse any and all current or future use of Odeko Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform. Odeko reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Odeko Properties if you have been previously removed by Odeko, or if you have been previously banned from any of Odeko Properties.
Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Odeko.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Odeko Properties, including but not limited to, a mobile device that is suitable to connect with and use Odeko Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Odeko Properties.
RESPONSIBILITY FOR CONTENT
Types of Content. You acknowledge that all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials accessible through Odeko Properties (collectively, “Content”), including Odeko Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Odeko, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Odeko Properties (“Your Content”), and that you and other Registered Users of Odeko Properties, and not Odeko, are similarly responsible for all Content that you and they Make Available through Odeko Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Odeko has no obligation to pre-screen Content (including, but not limited to, User Content), although Odeko reserves the right in its sole discretion to pre- screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Odeko pre-screens, refuses or removes any Content, you acknowledge that Odeko will do so for Odeko’s benefit, not yours. Without limiting the foregoing, Odeko shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Odeko in writing elsewhere, Odeko has no obligation to store any of Your Content that you Make Available on Odeko Properties. Odeko has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Odeko Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Odeko retains the right to create reasonable limits on Odeko’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Odeko in its sole discretion.
Odeko Properties. Except with respect to Your Content and User Content, you agree that Odeko and its suppliers own all rights, title and interest in Odeko Properties (including but not limited to, any computer code, objects, stories, dialogue, artwork, moral rights, documentation, and any Odeko software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Odeko Properties.
Trademarks. The Odeko name and all related graphics, logos, service marks and trade names used on or in connection with any Odeko Properties or in connection with the Services are the trademarks of Odeko and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Odeko Properties are the property of their respective owners. As noted earlier in this Agreement, if you are a business entity, you grant Odeko a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use and display your name and all related graphics, logos, service marks, and trade names you provide to the extent necessary for Odeko to carry out its responsibilities under this Agreement.
Your Content. Odeko does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Odeko Properties, you represent that you own and/or have an appropriate license to use and display Your Content (in whole or in part) on the Odeko Properties.
Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Odeko Properties, you hereby expressly permit Odeko to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content. If you decide to not have your full name serve as the name associated with your account, you may not use language that is offensive, vulgar, infringes someone’s intellectual property rights, or otherwise violates this Agreement.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Odeko through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Odeko 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. You hereby grant to Odeko a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Odeko Properties and/or Odeko’s business.
As a condition of use, you agree not to use Odeko Properties for any purpose that is prohibited by this Agreement or by applicable law. This includes any local, state, federal, and international laws that may apply to you. For example, it is your responsibility to obtain any permits or licenses required, and to meet applicable legal requirements in applicable jurisdiction(s). This includes the sale and delivery of your items. You may not sell anything that violates any laws; and you may not engage in fraud (including false claims or infringement notices), theft, anti-competitive conduct, or any other unlawful acts or crimes against Odeko, another Odeko user, or a third party.
You shall not (and shall not permit any third party to) either (a) take any action or (b) Make Available any Content on or through Odeko Properties that: (i) infringes any intellectual property right of any person or entity; (ii) is threatening, abusive, or otherwise offensive; (iii) constitutes unsolicited advertising; (iv) impersonates any person or entity, including any employee or representative of Odeko; (v) interferes with or attempts to interfere with the proper functioning of Odeko Properties or uses Odeko Properties in any way not expressly permitted by this Agreement; (vi) is false and misleading or uses the Platform or Services in a manner that is fraudulent of deceptive, or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Odeko Properties, including but not limited to violating or attempting to violate any security features of Odeko Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Odeko Properties, introducing viruses, worms, or similar harmful code into Odeko Properties, or interfering or attempting to interfere with use of Odeko Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Odeko Properties.
Odeko may, but is not obligated to, monitor or review Odeko Properties and Content at any time. Without limiting the foregoing, Odeko shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Odeko does not generally monitor user activity occurring in connection with Odeko Properties or Content, if Odeko becomes aware of any possible violations by you of any provision of the Agreement, Odeko reserves the right to investigate such violations, and Odeko may, at its sole discretion, immediately terminate your license to use Odeko Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS
User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Odeko reserves the right, but has no obligation, to intercede in such disputes. You agree that Odeko will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users. Odeko Properties may contain User Content provided by other Registered Users. Odeko is not responsible for and does not control User Content. Odeko has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
FEES AND PURCHASE TERMS
General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services, including Mobile Ordering. All fees set forth in this Agreement and the Odeko Payments Policy and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Odeko’s software, and, furthermore, any use of Odeko’s software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
The Seller appoints Odeko as a limited collection agent. If Odeko does not settle to the Seller any such payments as described in the Agreement, such Seller will have recourse only against Odeko and not you, as payment is deemed made by you to the Seller upon constructive or actual receipt of funds by Odeko.
You are also responsible for paying any governmental taxes imposed in connection with use of the Platform or the purchase of any products or services made available through the Platform, including sales, use and excise taxes (excluding only taxes on Odeko’s net income). To the extent that Odeko is obligated to collect such taxes, the applicable tax will be added to your billing account.
You understand that the prices for product or menu items displayed through the Platform may differ from the prices offered or published by Businesses for the same product or menu items and/or from prices available at other third-party websites/mobile applications. Prices for product or menu items displayed through the Platform may not be the lowest prices at which the product or menu items are sold. Odeko does not control how much a Business will charge for a particular product or menu item.
Odeko will charge the payment method you specify at the time of purchase or as otherwise specified by you in your Account.
Odeko, in its sole discretion, may provide users with product credits, or make promotional offers with different features and different rates to any consumers. These credits and offers may be used for future transactions on the Platform. Such credits or offers are non- transferrable, may not be resold, and are not redeemable for cash or other consideration. Odeko reserves its right to expire, limit, or modify any credits or promotion at any time. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future credits or promotional offers and any other forms of unredeemed value in or associated with your Account without prior notice to you.
No Returns or Refunds Policy. Odeko does not sell goods or services, but only provides a platform for transactions between Businesses and their customers. Odeko does not have any return or refund policy, and all refunds or returns shall be in accordance with the return and refund policy of the applicable Business. If you are not satisfied with any goods or services you have purchased, please be in direct contact with the applicable Business.
Notwithstanding the above, if an accidental price discrepancy between the actual price in the store and the payment processed via the Services is discovered following the use of the Services, contact Odeko at firstname.lastname@example.org to resolve such discrepancy.
Advertising Revenue. Odeko reserves the right to display third-party Ads before, after, or in conjunction with User Content posted on the Platform or Services, and you acknowledge and agree that Odeko has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Odeko as a result of such advertising).
You agree to indemnify and hold Odeko, its parents, subsidiaries, affiliates, officers, employees, agents, payment processors, partners, suppliers, and licensors (each, a “Odeko Party” and collectively, the “Odeko Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Odeko Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Odeko 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 Odeko in asserting any available defenses. This provision does not require you to indemnify any of the Odeko Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Odeko Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF ODEKO PROPERTIES IS AT YOUR SOLE RISK, AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ODEKO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, THE ODEKO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) ODEKO PROPERTIES OR THE BUSINESSES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF ODEKO PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF ODEKO PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH ODEKO PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS ODEKO PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ODEKO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ODEKO OR THROUGH ODEKO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Odeko may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Odeko’s sole discretion. The provisions of this section apply with full force to such features or tools.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ODEKO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ODEKO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING BUSINESSES AND ANY PRODUCTS OBTAINED FROM SUCH BUSINESSES, AS WELL AS OPERATORS OF EXTERNAL SITES. YOU ALSO ACKNOWLEDGE THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF ODEKO PROPERTIES. YOU UNDERSTAND THAT ODEKO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF ODEKO PROPERTIES. ODEKO MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ODEKO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY BUSINESS OR USER CONTENT OBTAINED THROUGH ODEKO PROPERTIES.
Third-Party Materials. As a part of Odeko Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Odeko to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL ODEKO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ODEKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF ODEKO PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE ODEKO PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH ODEKO PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON ODEKO PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO ODEKO PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, ODEKO PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO ODEKO BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $20; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ODEKO AND YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
It is Odeko’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Odeko by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Odeko Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Odeko Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Odeko’s Copyright Agent for notice of claims of copyright infringement is as follows: Odeko Inc., 241 Centre St., 3rd Fl., New York, NY 10013, Attn: Legal Department.
MONITORING AND ENFORCEMENT
Odeko reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Odeko Properties or the public, or could create liability for the Odeko; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Odeko Properties; and/or (e) terminate or suspend your access to all or part of the Odeko Properties for any or no reason, including without limitation, any violation of this Agreement.
If Odeko becomes aware of any possible violations by you of the Agreement, Odeko reserves the right to investigate such violations. If, as a result of the investigation, Odeko believes that criminal activity has occurred, Odeko reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Odeko is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Odeko Properties, including Your Content, in Odeko’s possession in connection with your use of Odeko Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Odeko, its Registered Users or the public, and all enforcement or other government officials, as Odeko in its sole discretion believes to be necessary or appropriate.
TERM AND TERMINATION
Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Odeko Properties, unless terminated earlier in accordance with the Agreement.
Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Odeko Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Odeko Properties, unless earlier terminated in accordance with the Agreement.
Termination of Services by Odeko. Odeko has the right to, immediately and without notice, suspend or terminate any Services, including Mobile Ordering, provided to you. You agree that all terminations for cause shall be made in Odeko’s sole discretion and that Odeko shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate the Services, including Mobile Ordering, provided by Odeko, you may do so by closing your Account for all of the Services that you use.
Effect of Termination. Termination of any Service, including Mobile Ordering, includes removal of access to such Service and barring of further use of the Service.
Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Odeko will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
No Subsequent Registration. If your registration(s) with, or ability to access, Odeko Properties or any other Odeko community, is discontinued by Odeko due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Odeko Properties or any Odeko community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Odeko Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Odeko reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Odeko and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Platform, to any products sold or distributed through the Platform, or to any aspect of your relationship with Odeko, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Odeko may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to Odeko Inc., 241 Centre St., 3rd Fl., New York, NY 10013, Attn: Legal Department, with a copy to email@example.com. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Odeko will pay them for you. In addition, Odeko will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Odeko. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND ODEKO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Odeko are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section entitled “Application of Arbitration Agreement” above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to firstname.lastname@example.org within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Odeko username (if any), the email address you used to set up your Odeko account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in the section entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Odeko.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Odeko makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Odeko at email@example.com.
Market Place Exchange. Odeko Properties can be used to facilitate the purchase and sale of services or merchandise through Odeko Properties from other persons not affiliated with Odeko (“Seller(s)”). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Odeko makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers.
App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Odeko and not with the App Store. Odeko, not the App Store, is solely responsible for Odeko Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Odeko Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Odeko Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
Release. You hereby release Odeko Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Odeko Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Odeko Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Odeko Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Odeko’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Relationship. Except as expressly stated herein, this Agreement does not create any agency, partnership, joint venture, employment, or franchisee relationship between you and Odeko.
Force Majeure. Odeko shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If you are a United Kingdom resident and if a force majeure event occurs that affects Odeko’s performance of its obligations under the Agreement: (a) Odeko will contact you as soon as reasonably possible to notify you; and (b) Odeko’s obligations under the Agreement will be suspended and the time for Odeko’s performance of its obligations will be extended for the duration of the force majeure event.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Odeko Properties, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT. IF AND ONLY IF YOU ARE A RESIDENT OF THE UNITED KINGDOM each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Notice. Where Odeko requires that you provide an e-mail address, you are responsible for providing Odeko with your most current e-mail address. In the event that the last e-mail address you provided to Odeko is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Odeko’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Odeko at the following address: 241 Centre St., 3rd Fl., New York, NY 10013. Such notice shall be deemed given when received by Odeko by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Odeko Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Odeko Properties, and any other applicable laws. In particular, but without limitation, Odeko Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Odeko Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Odeko Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Odeko are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Odeko products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. The 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.
End of Agreement