Last Updated: January 30th, 2019
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SERVICE YOU REPRESENT TO TENDER GREENS THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE ANY PORTION OF THE SERVICE.
We may modify these Terms at any time by any means of notice deemed to be reasonable under the circumstances, in our sole discretion, including by posting the revised version to the Site or any Application, as applicable (each a “Revised Version”) on the Site. Any Revised Version will be effective as of the time it is posted or otherwise communicated to you, but no Revised Version will apply retroactively. Your continued use of the Service after you receive any such notification of a Revised Version constitutes your acceptance of such Revised Version. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS
2. Capacity to Agree
By agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and have given us your consent to allow any of your minor dependents to use the Service.
3. Our Products
(a) Products. The Service enables Tender Greens to offer, to you and other users, various food, beverage and other related products (collectively, the "Product"). The Products advertised or otherwise made available for purchase via the Service or any Third-Party Service are determined solely by Tender Greens. We reserve the right to modify, discontinue, suspend or otherwise limit the sales of any of our Products to any person, based on geographic region, jurisdiction, availability or otherwise, and you acknowledge that we may exercise this right on a case-by-case basis. Tender Greens will have no liability to you or to any third party for any such modification, discontinuation, suspension, limitation or unavailability of any Products.
(b)Product Pricing. Any Product pricing listed on any part of the Service or any Third-Party Service (each defined below) is subject to change without notice to you. Tender Greens reserves the right to, at any time, modify such pricing, for any Product, without advance notice to you. We will not be liable to you or to any third party for any such modification.
You acknowledge and agree that the availability of any Applications is dependent on the third party from whom you received the Application license (e.g., the Apple iTunes or Google Play app stores) (each an "App Store"). You further acknowledge that these Terms are between you and Tender Greens and not with any applicable App Store. Tender Greens, not such App Store, is solely responsible for its own Application, with applicable third parties responsible for any such third party Applications, the content thereof, and the maintenance, support services, and warranty, if any, therefor, and for addressing any claims relating thereto (e.g., products liability claims, legal compliance or intellectual property infringement). In order to use any 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 the Service, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using any part of the Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce them.
5. Third-Party Services, Links, and Materials
(a) Third-Party Services. We may provide you with access, via the Service, to certain tools and services provided by third parties, including any Delivery Services (defined below) (each a “Third-Party Service”). You acknowledge that we neither monitor nor have any control over any Third-Party Service and agree that your use of any Third-Party Services offered through the Service is entirely at your own risk and discretion. You should ensure that you are familiar with and approve of the terms and conditions upon which such Third-Party Services are provided by the relevant third-party provider (“Third-Party Terms”). Any Third-Party Service to which we provide you access, whether via a hyperlink provided via the Service, is provided by Tender Greens "as is" and "as available," without any warranties, representations or conditions of any kind and without any endorsement by us. Tender Greens will have no liability whatsoever arising from or relating to your use of any Third-Party Services.
(b) Third-Party Links; Third-Party Materials. We may, via hyperlinks provided through the Service (“Third-Party Links”), provide you with the ability to access certain third-party websites and content owned or offered by third-parties (“Third-Party Materials”). Any Third-Party Links you click on via the Service may direct you to Third-Party Materials that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy of, and we do not warrant and will not have any liability or responsibility for, any Third-Party Materials. We are not liable for any harm or damages related to the purchase or use of any goods, services, resources, content, or any other transactions made in connection with any Third-Party Links or Third-Party Materials. Please review carefully the applicable third-party's policies and practices and make sure you understand them before you engage in any such transaction. Complaints, claims, concerns, or questions regarding any Third-Party Services, Third-Party Links, or Third-Party Materials should be directed to the applicable third party.
6. User Content
(b) User Comments. You may be provided the ability to upload to the Service or otherwise submit to Tender Greens, with or without our request, whether online, by email, by postal mail, or otherwise, certain content, including feedback, recommendations, reviews, suggestions, proposals, plans, creative ideas or other materials, whether your original content or that of a third party (collectively, “User Comments”). You agree that Tender Greens may use User Comments without restriction at any time, including but not limited to editing, copying, publishing, distributing, or translating such User Comments, in any form or medium. Tender Greens is and will be under no obligation to (1) maintain any User Comments in confidence; (2) pay compensation to you or any third party for use of any User Comments; or (3) respond to any User Comments.
(c) User Content. You represent and warrant to Tender Greens that any PII or User Comments (collectively, the “User Content”) you upload to the Service or otherwise submit to Tender Greens will not violate any right of any third-party, including any copyright, trademark, or other intellectual property right or any privacy, personality or other personal or proprietary right of a third party. You further agree that any such User Content will not contain any libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of any part of the Service. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any User Content. You are solely responsible for the truthfulness and accuracy of any User Content you provide via the Service, and Tender Greens disclaims any and all responsibility and liability for any such User Content.
7. Intellectual Property Ownership
Except for any PII and User Content (subject to the rights granted to Tender Greens with respect thereto), you provide to Tender Greens via the Service, you agree that Tender Greens owns all rights, title and interest in and to all other content included in any and all parts of the Service, and that all trademarks, service marks, trade names, brand names, logos and other source identifiers related thereto or included therein ("Marks") that appear on or in connection with any Products or any part of the Service are exclusively the property of Tender Greens and its affiliates, licensors (including Tender Greens) or licensees, as applicable. You are not authorized to use any Marks in any manner other than as expressly permitted in writing by Tender Greens.
8. Term: Termination
These Terms will remain effective unless and until terminated by either you or Tender Greens. You may terminate these Terms at any time by notifying us that you no longer wish to use the Service, or when you cease using the Service. If, in our sole judgment, you fail, or we suspect that you have failed, to comply with any term or provision of these Terms Tender Greens may suspend your ability to use the any or all parts of the Service or may terminate these Terms, in our sole discretion, effective immediately, with or without notice to you. Upon termination of these Terms, your right to use the Service will automatically terminate immediately. Tender Greens will not have any liability whatsoever to you for any such suspension or termination. All provisions of these Terms, which by their nature should survive, shall survive termination of these Terms, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.
9. Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR OWN RISK. ALL PARTS OF THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TENDER GREENS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. TENDER GREENS MAKES NO WARRANTY THAT ANY PART OF THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE SERVICE ARE OBTAINED AT YOUR OWN RISK, AND TENDER GREENS MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TENDER GREENS OR OTHERWISE THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.
10. Limitation of Liability
YOU UNDERSTAND THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TENDER GREENS OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE OR YOUR PURCHASE OF ANY PRODUCTS VIA THE SERVICE OR ANY THIRD-PARTY SERVICE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF TENDER GREENS TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE SERVICE OR ANY PRODUCTS PURCHASED VIA THE SERVICE OR ANY THIRD-PARTY SERVICE, EXCEED TO ONE HUNDRED DOLLARS ($100). THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK AGREED UPON AS REASONABLE BY THE PARTIES AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY INCLUDED. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
You agree to indemnify, defend and hold harmless Tender Greens and its agents, employees, representatives, licensors, affiliates, officers and directors, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) resulting or arising from any third-party claim based upon or arising in connection with (a) your use of or access to the Service; (b) any information you submit or transmit through the Service, including any User Content; (c) your violation of these Terms; (d) your violation of any rights of any third party in connection with your use of the Service; or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the Service.
12. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury
Please read the terms of this Section 12 (this “Arbitration Agreement”) carefully. It is part of your contract with Tender Greens and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of any product or service provided by Tender Greens that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Tender Greens, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (a "Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Tender Greens should be sent to [email protected]. After the Notice is received, you and Tender Greens may attempt to resolve the claim or dispute informally. If you and Tender Greens do not resolve the claim or dispute within thirty (30) days after such Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS online at http://www.jamsadr.com
or by phone at 1-800-352-5267. To begin an arbitration proceeding, you must serve Tender Greens’ registered agent for service of process: National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, DE 19904 United States.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Tender Greens will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Tender Greens will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.
Any arbitration will take place in county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone to the extent permitted by the JAMS Rules. The arbitrator may award on an individual basis the same damages and relief as a court (including injunctive relief).
Judgment on the award may be entered in any court of competent jurisdiction.
(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Time Limits. If you or Tender Greens pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Tender Greens, and the dispute 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 JAMS Rules, and these Terms. 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 Tender Greens.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Tender Greens in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TENDER GREENS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tender Greens.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Tender Greens may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, 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.
(p) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit for such purpose to the personal jurisdiction of the courts located within Los Angeles County, California.
(a) Choice of Law. These Terms are governed by U.S. federal law and the laws of the State of California, consistent with the Federal Arbitration Act and without resort to any conflicts of law provisions.
(b) Notice. Where Tender Greens requires that you provide an e-mail address, you are responsible for providing Tender Greens with your most current e-mail address. In the event that the last e-mail address you provided to Tender Greens is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, Tender Greens’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tender Greens only at the following address: T.Y.P. Restaurant Group, Inc. d/b/a Tender Greens, 1201 West 5th Street, Suite T-400, Los Angeles, California 90017, with a copy to [email protected]. Such notice shall be deemed given when received by Tender Greens by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
(c) Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(d) Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
(e) Export Control. You may not use, export, import, or transfer any part of the Service or any Products except as authorized by U.S. law, the laws of the jurisdiction in which you obtained such Products or such Service, and any other applicable laws. In particular, but without limitation, no Product and no part of the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) 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 the Service, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service or any Products 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 Company 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 any Products or any part of the Service or any other technology of Tender Greens, either directly or indirectly, to any country in violation of such laws and regulations.
(f) Electronic Communications. The communications between you and Tender Greens use electronic means, whether you visit the Service or send Tender Greens e-mails, or whether Tender Greens posts notices on any part of the Service or communicates with you via e-mail. For contractual purposes, you (i) consent to receive communications from Tender Greens in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tender Greens provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
(g) Release. You hereby release Tender Greens, its affiliates and each of their officers, directors, employees, and agents 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 the Service, 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 these Terms or your use of the Service. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
(h) Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tender Greens’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
(i) Force Majeure. Tender Greens 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, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
(j) Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, or any Products obtained by you via the Service, please contact us by writing to: T.Y.P. Restaurant Group, Inc. d/b/a Tender Greens, 1201 West 5th Street, Suite T-400, Los Angeles, California 90017, with a copy to [email protected]. 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.
(k) 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 400 R Street, Sacramento, California 95814, or by telephone at (800) 952-5210.
(l) Entire Agreement. The Terms are 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.