These Terms of Use (this “Agreement”) apply to your use of (1) the Fine Diners Over 40™ (FDO40) website at http://stage.finedinersover40.com, (2) the restaurant reservation services made available by FDO40 through the FDO40 website, and (3) the payment services used by the FDO40 website as described in Part II below (the “Payment Services”). Together items (1) through (3) are the “Services.” In this Agreement “FDO40” and “we” mean FDO40 LLC and “member,” “user” and “you” mean any member/user of the Services. This Agreement incorporates FDO40’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “FDO40 Policies”). By joining FDO40 and accessing and using the Services, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services outlined in this Agreement, including among other things, an arbitration provision containing a class action waiver.
FDO40 may update or revise this Agreement (including any FDO40 Policies) from time to time. You agree that you will review this Agreement periodically so you can decide whether or not to accept a modified version of this Agreement; accepting this Agreement, as modified, is required for you to continue using the Services. If you do not agree to the terms of this Agreement or any modified version of it, your sole recourse is to terminate your membership and use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by FDO40, any use of the Services (e.g., Reservation Services, Payment Services) is subject to the version of this Agreement in effect at the time of use.
Part I – Restaurant Reservation Services
1. Restaurant Reservations. FDO40 provides Reservation Services to members of FDO40 for the purpose of participating in scheduled events. The availability of reservations is determined at the time of a member’s query. When you make a reservation through the FDO40 website, FDO40 will confirm the reservation has been made.
2. Payment at Time of Reservation. Payment is made via credit or debit card or PayPal (payments@finedinersover40.com) at the time of reservation.
3. Cancellations and Refunds. You may cancel your reservation via the FDO40 website. FDO40 reservations are subject to each restaurant’s cancellation policy. Many of the featured establishments have strict cancellation policies. If you cancel we will offer your reservation to members on the waiting list. If we are able to fill your spot we will process a refund, less the PayPal fee. If we are unable to fill your spot and the restaurant cooperates in not charging us, we will process a refund, less the PayPal fee. Members agree that all final no-show determinations will be made by FDO40 in its sole discretion.
Part II –
4. Certain Limitations. You acknowledge and agree that FDO40 uses PayPal only as a convenience and is not a party to your payment transactions performed using PayPal. FDO40 is an independent contractor for all purposes and is not your agent or trustee. FDO40 is not responsible for, and has no liability for, the products or services paid for with PayPal. FDO40 is not responsible for any overcharges or other payment disputes with restaurants. Members must resolve payment and other disputes directly with restaurants.
Part III – Terms for All Services
5. Privacy Policy. Please review the FDO40 Privacy Policy for details about how we collect, use, and disclose information in connection with the Services.
6. Your Account. When joining FDO40, you must provide true, accurate, current, and complete data about yourself on the FDO40 registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and the information in your account, and, except as otherwise required by applicable law, you are solely responsible for all use of your account, whether or not authorized by you. You agree to immediately notify FDO40 of any unauthorized use of your account or any other breach of security related to your use of the Services.
7. Communications from FDO40. If you provide a mobile phone number to FDO40, you hereby expressly consent to receive SMS text messages from FDO40 regarding the Services and as otherwise described in our Privacy Policy. The communication standards for the Services include, but are not limited to, SMS and web-based browser technology. In order to use the SMS-based Services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access the Services.
8. Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier charges resulting from your use of the Services, including from any notifications provided by the Services. FDO40 does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have JavaScript (or similar technologies) enabled to use the FDO40 website, and some features and portions of the FDO40 website may not be accessible with JavaScript disabled.
9. Modifications to Services. FDO40 reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the FDO40 website. FDO40 shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all Services.
10. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “FDO40 Content”) are provided to user by FDO40 solely to support User’s permitted use of the Services. The FDO40 Content may be modified from time to time by FDO40 in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the FDO40 Content by User shall constitute a material breach of this Agreement. FDO40 and its partners or licensors retain all rights in the Services and FDO40 Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of FDO40 or any third party is granted under this Agreement.
11. Use Restrictions. The Services and FDO40 Content are offered solely for Member’s personal use for the purposes described in this Agreement; any and all other uses are prohibited. FDO40 expressly reserves all its rights and remedies under applicable state and federal laws. FDO40 reserves the right, in its sole discretion, to refuse service, terminate accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or FDO40 Content, except as expressly authorized by FDO40; (2) take any action that imposes or may impose (in FDO40’s sole determination) an unreasonable or a disproportionately large load on the Services or FDO40’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to, or sublicense any portion of the Services or FDO40 Content to a third party; (5) use any portion of the Services or FDO40 Content to provide, or incorporate any portion of the Services or FDO40 Content into any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to FDO40); (7) modify any Services or FDO40 Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or FDO40 Content; (9) use the Services or FDO40 Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or FDO40 Content or access or use the Services or FDO40 Content for competitive analysis or benchmarking purposes.
12. Export Control. You may not use, export, or re-export any aspect of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Termination. FDO40 may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, FDO40 may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any FDO40 Policies) or, with respect to use of PayPal, if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that FDO40 shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time.
14. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE FDO40 PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT or (2) ANY USE OF THE SERVICES, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE PAYMENT SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE FDO40 SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES. FDO40 IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT AT WHICH EVENTS ARE HELD. IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREETHAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE PRICE YOU PAID FOR YOUR MOST RECENT EVENT (AS APPLICABLE) OR FIFTY U.S. DOLLARS ($50). You and FDO40 understand and agree that the disclaimers, exclusions, and limitations in this Section 14 and in Section 15 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that FDO40 would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
15. Disclaimer of Warranties. THE SERVICES AND ANY OTHER INFORMATION CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. FDO40 EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. FDO40 DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT FDO40 WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. FDO40 SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FDO40. THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Links to Third-party Websites. The Services may contain hypertext links to websites operated by parties other than FDO40. Such hypertext links are provided for User’s reference only; FDO40 does not control such websites and is not responsible for their content. FDO40’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. FDO40 assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
17. Release. Restaurants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your interaction with or visit to any Restaurant or from any product or service of any Restaurant. You hereby release FDO40 from any and all such Claims.
18. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
19. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by FDO40.
20. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
21. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the FDO40 Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order.
You and FDO40 must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR FDO40 MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) FDO40 also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (4) the arbitrator shall honor claims of privilege and privacy recognized at law; (5) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (6) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (7) FDO40 shall be entitled to reimbursement from You for any and all costs, fees (including attorneys’ fees), and expenses incurred in connection with any lawsuit, arbitration, or other legal proceeding between You and FDO40 where FDO40 prevails on its claims or defenses asserted therein, as the case may be. In the event FDO40 does not prevail, each side shall pay its own costs, fees (including attorneys’ fees), and expenses incurred in connection with any such lawsuit, arbitration, or other legal proceeding.
Notwithstanding the foregoing, either you or FDO40 may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York, for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor FDO40 shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York. For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
22. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles that provide for the application of the law of another jurisdiction.
DATE: March 24, 2015