Terms of Use Agreement

THIS AGREEMENT AND THESE TERMS OF USE PERTAIN TO WEB SITE(S) AND SOFTWARE APPLICATIONS INCLUDING, WITHOUT LIMITATION, ANY IOS APP, ANDROID APP OR WEB APPLICATION OWNED, ADMINISTERED, PUBLISHED AND/OR HOSTED BY DERISE KITCHEN, LLC (“Derise Kitchen”).  BY USING ANY DERISE KITCHEN WEB SITE OR APPLICATION, YOU AGREE TO THESE TERMS OF USE.  IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST NOT USE ANY DERISE KITCHEN WEB SITE OR SOFTWARE APPLICATION.

 

Conspicuous and Fair Notice

Be advised that this agreement contains provisions that could limit or restrict your rights, including, without limitation, disclaimers and limitations of liability(section 8) and mandatory arbitration and waiver of class action and other rights by you (section 14). 

 

  1. Acceptance of Agreement.

You agree to the terms and conditions set forth in this Terms of Use Agreement (“Agreement”) with respect to any Derise Kitchen web site and/or software application.  As used in this Agreement, the term “Derise Kitchen App” shall include, without limitation, any web site or software application owned, administered, published, distributed and/or hosted by Derise Kitchen (including, without limitation, our Derise Kitchen web site at https://www.goodeats.wpengine.com  and/or any iOS app, Android app or other web application), together with any content, products, software or services provided in connection therewith.   Subject to Section 7 hereof, this Agreement constitutes the entire and only agreement between Derise Kitchen and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Derise Kitchen App and/or the subject matter of this Agreement.  The latest Terms of Use Agreement will be posted on and available through the Derise Kitchen App and web site.  You must review this Agreement in its entirety prior to using the Derise Kitchen App.

  1. Limited Right to Use.

The viewing, printing or downloading of any content, graphic, information or software from the Derise Kitchen App grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (not for resale or redistribution).

  1. ONLINE ORDERING

 

If you place an order through the Derise Kitchen App, you are responsible for ensuring that your order is correct and you have designated the proper store for pick-up or address for delivery.  You may only place orders if you are at least 18 years old

Pre-Authorization

If you are paying by credit card, we will pre-authorize your credit card to verify availability of funds.  In either case, if the order is modified prior to pick-up or delivery, any overage will be charged to your credit card.

Cancellation

You may cancel your order up to 15 minutes for pick up and up to 5 minutes for delivery after the order has been placed. After cancellation window, you will be charged for your order whether or not you pick it up and the amount paid will not be refunded for any reason. If you do not pick up your order for any reason you will be charged for your order.

Delivery Policy

We will attempt to deliver your order as soon as possible.  We reserve the right not to deliver: outside our designated delivery times; outside our delivery zone; in inclement weather or dangerous driving conditions; to minors; to customers in public establishments; or in those instances in which we believe our delivery would conflict with, compromise or affect our business.  If we are unable to deliver your order because you provided an inaccurate address, you will be charged for your order, even if we are unable to deliver your order.  If you request that your order be left at your door or another location, you will be charged, and we will have no further liability, for any delivery left in the specified location. If you request that your order be delivered to you personally and we are unable to locate you at the address provided, we will attempt to contact you by phone or SMS.  If you are not at the designated location at the time of delivery and we are unable to contact you, you will be charged for your order.

Third Party Delivery Service

You acknowledge that we use third party delivery services (collectively, the “Delivery Services”), such as Waitr, to deliver your order.  When you place your order with us, we will provide your name, address, contact information, including phone number, and information regarding your order to the Delivery Service so that they may deliver your order to you.  In addition, we may provide other information to the Delivery Service, such as information regarding comments, reviews or ratings we receive from you regarding the Delivery Service to help improve the quality of their service.

Out-of-Stock Items

If you order an item that is not in stock, we will attempt to contact you to provide you with an opportunity to designate a replacement item.  If a replacement item is not designated, the original item will be removed from your order and you will not be charged for it. If none of the items in your order are available, we will attempt to contact you to let you know that your order is being cancelled.

  1. Copyright, Editing, Deleting and Modification.

All content, organization, graphics, design, audio, animation, video, compilation, magnetic translation, digital conversion and other matters related to the Derise Kitchen App are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights.  The copying, redistribution, use or publication by you of any such matters or any part of the Derise Kitchen App is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Derise Kitchen App. The posting of information or materials on the Derise Kitchen App does not constitute a waiver of any right in such information and materials.  Derise Kitchen reserves the right, in our sole discretion, to edit or delete any documents, information or other content appearing on or available through the Derise Kitchen App.

  1. Indemnification.

You will defend, indemnify and hold Derise Kitchen, its parent, subsidiaries, affiliates and/or their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, business and promotional partners, operational service providers, suppliers, resellers and contractors, harmless from and against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable fees of lawyers and other professionals) of any party  arising out of or in connection with your use of the Derise Kitchen App(s), breach or violation of this Agreement, infringement, misappropriation or any violation of rights of any other party, violation or non-compliance with any law or regulation, or otherwise in connection with this Agreement.   You shall promptly notify Derise Kitchen of any such claim.  Derise Kitchen reserves the right to assume, at Derise Kitchen’s expense, the exclusive defense and control of any claims or actions and all negotiations for settlement or compromise, and you agree to fully cooperate with us upon such request.

  1. Nontransferable.

Your right to use the Derise Kitchen App is not transferable. Any password or right given to you to obtain information or documents or otherwise access content via the Derise Kitchen App is not transferable.

  1. Software

7.1 If you use or receive any software from Derise Kitchen as part of any services provided in connection with a Derise Kitchen App, then the terms of this Agreement (including, without limitation, the remainder of this Section 7) apply to such software and your use thereof.

7.2 The software is licensed, not sold, and Derise Kitchen reserves all rights to the software not expressly granted by Derise Kitchen hereunder, whether by implication, estoppel, or otherwise.   Any third party scripts or code, linked to or referenced from the Derise Kitchen App are licensed to you by the third parties that own such code, not by Derise Kitchen.

7.3 In addition to the other restrictions in this Agreement, you may not circumvent or bypass any technological protection measures in or relating to the software or any Derise Kitchen App or disassemble, decompile, or reverse engineer any software or other aspect of a Derise Kitchen App that is included in or accessible through a Derise Kitchen App, except and only to the extent that the applicable copyright law expressly permits doing so; separate components of the software or Derise Kitchen App for use on different devices; publish, copy, rent, lease, or lend the software or a Derise Kitchen App; or transfer the software, any software licenses, or any rights regarding a Derise Kitchen App, except as expressly permitted by this Agreement. You may not use any Derise Kitchen App in any unauthorized way that could interfere with anyone else’s use of them or gain access to any service, data, account, or network. You may not enable access to any Derise Kitchen App by unauthorized third-parties or third party applications.

7.4 Derise Kitchen may automatically check your version of any Derise Kitchen software. We may also automatically download updates to the software from time to time. You agree to accept such updates subject to these terms unless other terms accompany the updates. If so, those other terms apply. Derise Kitchen isn’t obligated to make any updates available and doesn’t guarantee that Derise Kitchen will support the version of the system for which you licensed the software.

  1. Disclaimer and Limitation of Liability.

THE INFORMATION FROM OR THROUGH THE DERISE KITCHEN APP ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.  DERISE KITCHEN, TOGETHER WITH ITS PARENT, SUBSIDIARIES, AFFILIATES AND/OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, ADVERTISERS, BUSINESS AND PROMOTIONAL PARTNERS, OPERATIONAL SERVICE PROVIDERS, SUPPLIERS, RESELLERS AND CONTRACTORS (COLLECTIVELY “AFFILIATED PARTIES”), HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, DERISE KITCHEN AND ITS AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE DERISE KITCHEN APP AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE DERISE KITCHEN APP SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES IS EXPRESSLY DISCLAIMED BY DERISE KITCHEN. DERISE KITCHEN WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT MAY RESULT FROM USE OF OR INABILITY TO USE ANY DERISE KITCHEN APP. DERISE KITCHEN’S MAXIMUM LIABILITY TO YOU UNDER ALL CIRCUMSTANCES WILL BE EQUAL TO THE PURCHASE PRICE YOU PAY FOR ANY GOODS, SERVICES OR INFORMATION.

  1. Privacy Policy.

You hereby agree that Derise Kitchen, its parent, subsidiaries, affiliates, and their respective successors and assigns, may collect and use certain information associated with your use of the Derise Kitchen App, in accordance with Derise Kitchen’s Privacy Policy available at Privacy Policy [LINK], as it may change from time to time.  Derise Kitchen’s Privacy Policy is a part of this Agreement.

  1. Links to other Web Apps.

The Derise Kitchen App may contain links to other web sites or software applications.  Derise Kitchen is not responsible for the content, accuracy or opinions expressed in such other web Apps, and such web sites or applications are not investigated, monitored or checked for accuracy or completeness by Derise Kitchen.  Inclusion of any linked web site on any Derise Kitchen App does not imply approval or endorsement of the linked web site or any related content or information by Derise Kitchen.  If you decide to leave a Derise Kitchen App and access any third-party web site, you do so at your own risk.

  1. Information and Press Releases.

The Derise Kitchen App may contain information and/or press releases about Derise Kitchen. While this information was believed to be accurate as of the date prepared, Derise Kitchen hereby expressly disclaims any duty or obligation to update such information and/or any press releases. Information about third parties other than Derise Kitchen contained in a press release or otherwise, should not be relied upon as being provided or endorsed by us.

  1. Trademarks.

“Derise Kitchen” and “GOOD EATS KITCHEN” are trademarks of Derise Kitchen, LLC in the United States and/or other countries. All other trademarks and registered trademarks are the property of their respective owners.

  1. Miscellaneous.

13.1 Entire Agreement. This Agreement is the entire agreement between you and Derise Kitchen with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements and agreements.  No statement or representation (verbal or otherwise) has been made by any party to this Agreement, in order to induce a party to execute this Agreement or any document or instrument to be executed pursuant hereto, which is not contained herein or in a written instrument to be executed and delivered pursuant to this Agreement.

13.2 Assignment.  Derise Kitchen shall have the right, but not the obligation, to assign this Agreement or any portion hereof to any Affiliated Party, successor in interest, or other person without your prior written consent.  This Agreement is intended solely for the benefit of the parties and their respective successors and assigns.  Nothing in this Agreement shall be construed to create any duty to, or standard of care with reference to, or liability of, any person not a party to this Agreement.  Nothing in this Agreement shall be deemed to constitute any fiduciary or special relationship or duty between the parties.

13.3 Waiver.  No failure to exercise and no delay on the part of Derise Kitchen in exercising any power or right hereunder constitutes a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or, discontinuance of steps to enforce such a right or power, preclude any other or future exercise of that right, power, or privilege or the exercise of any other right or power.   

13.4 Singular and Plural.  Words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa.  The definitions of words in the singular herein shall apply to such words when used in the plural and vice versa, unless the context shall otherwise require.

13.5 Titles of Articles, Sections and Subsections. All titles or headings to articles, sections, subsections or other divisions of this Agreement are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other content of such articles, sections, subsections or other divisions, such other content being controlling as to the agreement between the parties hereto.

13.6 Cumulative Rights.  The rights and remedies of Derise Kitchen under this Agreement shall be cumulative and not exclusive; the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other right or remedy provided in this Agreement or otherwise by law.

13.7 Time for Action.  Subject to Section 14 of this Agreement, any claim or cause of action by you with respect to any Derise Kitchen App (and/or any information, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred.  

13.8 Severability.  If any provision of this Agreement is determined to be invalid, illegal, or otherwise unenforceable (including, without limitation, Section 14 hereof), such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision shall be deemed not to be a part of this Agreement.

13.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Louisiana exclusive of its rules governing choice of law and conflict of laws.

13.10 Conflict.  To the extent that anything in or associated with any Derise Kitchen App is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

  1. BINDING ARBITRATION AND CLASS ACTION WAIVER

14.1. Notice of Dispute. In the event of a Claim (as defined below), you or Derise Kitchen must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Claim, and the relief requested. You must send any Notice of Dispute by certified or registered U.S. Mail to Derise Kitchen, LLC, 305 SANCTUARY LANE, LAFAYETTE, LA 70503. Derise Kitchen will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address.  You and Derise Kitchen must attempt to resolve any dispute in good faith through informal negotiation within sixty (60) days from the date the Notice of Dispute is received.  After sixty (60) days, you or Derise Kitchen shall have the right, but not the obligation, to commence arbitration in accordance with this Section 14 of this Agreement.

As used herein, the term “Claim” shall mean and include any claim, dispute or controversy of every kind and nature, whether based in law or equity, between you and Derise Kitchen or any of the Affiliated Parties arising from or relating to any Derise Kitchen App or this Agreement, including, without limitation, the validity, enforceability or scope of this Section 14 or the Agreement.  

14.2 Agreement to Arbitrate Disputes.  In the event that the parties are unable to resolve a Claim described in a Notice of Dispute through informal negotiation, such dispute must be resolved through binding arbitration. This means that neither you nor Derise Kitchen will have the right to litigate that Claim in court or have a jury trial on that Claim.  Other rights that you would have in court also may not be available or may be limited in arbitration, including your right to appeal and your ability to participate in a class action. Nothing in this provision precludes you from filing and pursuing your individual Claim in a small claims court of competent jurisdiction in your state or municipality, so long as that Claim is pending only in that court.

14.3 Initiation of Arbitration Proceeding/Selection of Administrator.  Any Claim shall be resolved, upon the election by you or Derise Kitchen, by arbitration pursuant to this Section 14 and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed (the “Code”), except to the extent the Code conflicts with this Agreement.  Claims shall be referred to either JAMS (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration.  If a selection by Derise Kitchen of either of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitration administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact (1) JAMS at 1920 Main Street, Suite 300, Irvine, CA, 92614; www.jamsadr.com or (2) AAA at 335 Madison Avenue, New York, NY 10017, www.adr.org. In addition to the arbitration organizations listed above, Claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and Derise Kitchen.

14.4 Class Action Waiver and Other Restrictions.  Arbitration shall proceed solely on an individual basis without the right for any Claim(s) to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to Claims between you and Derise Kitchen alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.  

14.5 Arbitration Procedures.  This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (“FAA”), and the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. Federal or state rules of civil procedure or evidence shall not apply. Written requests to expand the scope of discovery rest within the arbitrator’s sole discretion and shall be determined pursuant to the applicable Code. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the written arbitral award may be entered in any court having jurisdiction. Subject to the right of appeal under the FAA, the arbitrator’s written decision will be final and binding unless you or we take an appeal from the award by making a dated, written request to the arbitration organization within 30 days from the date of entry of the written arbitral award. A three-arbitrator panel administered by the same arbitration organization shall consider anew any aspect of the award objected to by the appellant, conduct an arbitration pursuant to its Code and issue its decision within 120 days of the date of the appellant’s written notice. The panel’s majority vote decision shall be final and binding.

14.6 Location of Arbitration/Payment of Fees.  The arbitration shall take place in Lafayette, Louisiana. Irrespective of who prevails in arbitration, you will only be responsible for paying your share, if any, of the arbitration fees required by the applicable Code.  At your written request, Derise Kitchen will consider in good faith making a temporary advance of all or part of your share of the arbitration fees; provided, however, that Derise Kitchen reserves the right to refuse making any such advance for any reason in its sole discretion. Waivers also may be available from the JAMS or AAA.

14.7 Continuation: This Section 14 shall survive use of any Derise Kitchen App, as well as voluntary payment in full of any shortages, and any bankruptcy by you or Derise Kitchen.  

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