PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Last Updated: October 2022
Welcome to Food Rocket. Please read on to learn the rules and restrictions that govern your use of our website(s) (located at foodrocket.me), products, services and mobile applications (the "Services"), including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a "Product"). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Changes to the Terms
We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the https://foodrocket.me/ Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. website, by sending you an email, and/or by some other means.
If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
The Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for or otherwise use the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
Food Rocket Services
You may be required to sign up for an account, and select a password and username ("User ID"). You promise to provide us, Food Rocket, with complete and updated registration information about yourself. You may not select as your User ID a name that you don't have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity's behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services and Products you obtain for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren't authorized to use the Services. We can't and won't be responsible for your using the Services or Products in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You're responsible for any activity associated with your account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account.
As part of the Services, you may receive communications through the Services, including messages that Food Rocket sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Food Rocket to send you information that we think may be of interest to you, which may include Food Rocket using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Food Rocket, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Food Rocket. You agree to indemnify and hold Food Rocket harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to your breach of the foregoing.
Restrictions on Use
You represent, warrant, and agree that you will not use the Services or interact with the Services in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the "Content") are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Food Rocket') rights.
You understand that Food Rocket owns the Services. You won't modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn't mean that all the restrictions above don't apply – they do!
Food Rocket has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party products, websites or by any third party that you interact with through the Services. In addition, Food Rocket will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment, sale and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Food Rocket shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on the Services, or between users and any third party, you agree that Food Rocket is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Food Rocket, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says in substance: "A general release does not extend to claims which 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."
Identification of Licensed Retailer. Food Rocket is a delivery service with respect to age-restricted products (such as alcoholic beverages and tobacco-related products) (“Age-Restricted Products”) sold either by convenient stores owned or operated by Circle K Stores, Inc. (“Circle K”) or by Food Rocket itself.
Circle K Age-Restricted Products:
With respect to all sales, offers for sales, orders, and purchases of Age-Restricted Products sold or offered for sale by Circle K (“Circle K Age-Restricted Products”), all such sales, offers, for sale, orders, and purchases of Age-Restricted Products are occurring solely through Circle K. Food Rocket does not hold any licenses to sell Circle K Age Restricted Products, nor is it a licensed retailer, distributor, wholesaler, or manufacturer of Age-Restricted Products. You understand and acknowledge that, with respect to Circle K Age-Restricted Products, the purpose of the Services is to connect consumers to certain Circle K retail locations engaged in the sale, service, delivery and/or transportation of Circle K Age-Restricted Products. ALL SALES OF CIRCLE K AGE-RESTRICTED PRODUCTS ARE TRANSACTED BETWEEN YOU AND CIRCLE K. FOOD ROCKET DOES NOT FURNISH, SELL, OR OFFER FOR SALE CIRCLE K AGE-RESTRICTED PRODUCTS. Title to, and ownership of, all purchased and delivered Circle K Age-Restricted Products shall pass from Circle K to you.
At the time you purchase Circle K Age-Restricted Products, you are purchasing those items from Circle K. Your Billing Account will be charged through separate transactions: one charge for the sale of the Circle K Age-Restricted Products on behalf of Circle K; and one charge for the delivery of the Circle K Age-Restricted Products by Food Rocket.
Food Rocket Age-Restricted Products:
With respect to all sales, offers for sales, orders, and purchases of Age-Restricted Products sold or offered for sale by Food Rocket (“Food Rocket Age-Restricted Products”), all such sales, offers for sale, orders, and purchases of Food Rocket Age-Restricted Products are occurring solely through Food Rocket. Circle K has no involvement in the sale, offers for sale, orders, or purchases of Food Rocket Age-Restricted Products. All sales, offers for sales, orders, and purchases of Food Rocket Age-Restricted Products occurs directly through Food Rocket. Although Food Rocket holds licenses to sell Food Rocket Age-Restricted Products within certain specified jurisdictions, Food Rocket is not a licensed wholesaler or manufacturer of Age-Restricted Products. ALL SALES OF FOOD ROCKET AGE-RESTRICTED PRODUCTS ARE TRANSACTED BETWEEN YOU AND FOOD ROCKET. Title to, and ownership of, all purchased and delivered Food Rocket Age-Restricted Products shall pass from Food Rocket to you.
At the time you purchase Food Rocket Age-Restricted Products, you are purchasing those items from Food Rocket. Your Billing Account may be charged through separate transactions: one charge for the sale of the Food Rocket Age-Restricted Products; and one charge for the delivery of the Food Rocket Age-Restricted Products by Food Rocket.
A. Regulatory Compliance
You agree that your use of the Services with respect to Age-Restricted Products, including your purchase, delivery, and use of Age-Restricted Products, does not and will not violate any local, state, or federal laws and regulations (the “Laws”), including, but not limited to, the Family Smoking Prevention and Tobacco Control Act (123 Stat. 1776 et seq.), the Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the Prevent All Cigarette Trafficking Act (Public Law 111-154), and the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act (720 ILCS 675 et seq).
By using the Services for Age-Restricted Products, you represent and agree that you will comply with applicable Laws and will not cause Circle K or Food Rocket (including its Couriers, as defined below) to contravene applicable Laws. Without limiting the foregoing, you acknowledge and agree that:
1. Any Age-Restricted Products will not be resold or offered for sale; and
2. You are not a licensed manufacturer, wholesaler, or retailer of Age-Restricted Products of the same type or class as those purchased from Circle K through the Services.
Food Rocket and Circle K make no representations as to the legal rights of anyone to deliver, receive, accept or import Age-Restricted Products in any jurisdiction. You are solely responsible for determining the legality and the tax/duty consequences of having the Age-Restricted Product(s) delivered to the applicable destination.
You hereby certify that the intended use of the Age-Restricted Products will not be as drug paraphernalia in violation of 21 USC § 863. Food Rocket and Circle K do not promote the use of marijuana, or any other controlled substance as defined in 21 USC § 863. The Age-Restricted Products are solely for legal, personal use and nothing shall be construed as condoning or promoting use of any controlled or illegal substance.
B. Services Limited to Ages 21 and Over
Food Rocket and Circle K do not sell Age-Restricted Products to persons under the age of twenty-one (21). Further, you must be at least twenty-one (21) years of age to view, access, or use the Services with respect to Age-Restricted Products. By viewing, using, or accessing the Services in connection with an Age-Restricted Product, you represent and agree that you are twenty-one (21) years of age or older and legally authorized to purchase Age-Restricted Products. You further agree by submitting an order for an Age-Restricted Product that you will (1) be present to accept the delivery of the Age-Restricted Product(s); (2) provide photo-identification upon delivery to verify your identity and age; and (3) provide a signed acknowledgment certifying your age and confirming acceptance at the time of delivery. Food Rocket and Circle K reserve all rights to prosecute or litigate, to the fullest extent of the law any attempt by you to misconstrue your age, either directly or indirectly; or any attempt to use the Services to provide Age-Restricted Products to an individual who is under the age of twenty-one (21).
C. No Third-Party Beneficiaries
By accessing the Services for an Age-Restricted Product, you certify that such access is for your own benefit and information, and that the Age-Restricted Product(s) are solely for your own personal use and not for any other person.
D. Geographic Limitations
No deliveries of Age-Restricted Products will be made outside of Chicago, Illinois and County of Mecklenburg, North Carolina, or to PO Boxes, or APO/FPO addresses. You further acknowledge that Circle K and Food Rocket cannot sell or deliver Age-Restricted Products to areas where the sale, delivery, or possession of such Age-Restricted Product is otherwise prohibited. You further represent and agree that (a) with respect to Age-Restricted Products offered or sold in the State of Illinois, you will not access any Services from any territory outside the State of Illinois or where the content or use of the Services is illegal with respect to Age-Restricted Products; (b) with respect to Age-Restricted Products offered or sold in the State of North Carolina, you will not access any Services from any territory outside the State of North Carolina or where the content or use of the Services is illegal with respect to Age-Restricted Products.
E. Acceptance of Deliveries.
All deliveries of Age-Restricted Products must be accepted by you. You must (1) be capable of proving that you are twenty-one (21) years of age or older; (2) provide a valid form of government-issued photo-identification at the time of delivery that verifies your age and identity; and (3) provide a signed acknowledgment certifying your age and confirming acceptance at the time of delivery. If (i) you are not twenty-one (21) years of age or older or (ii) cannot provide valid identification showing that you are twenty-one (21) years of age or older, then the Food Rocket delivery driver (the “Courier”) will not complete delivery of the Age-Restricted Product(s). Additionally, if the Courier is unable to contact you at your specified delivery address, as determined in Courier’s sole discretion, the entire order may be canceled, in Courier’s sole discretion, and returned to Circle K and/or Food Rocket, and the original order balance will be returned to you, less a restocking fee, if applicable. Age-Restricted Products cannot and will not be left unattended for any reason.
By Illinois state law, all deliveries of alcohol within the State of Illinois must be completed within 12 hours from the time the product leaves the Circle K premises. Circle K and Food Rocket reserve all rights to terminate or cancel any order if the delivery cannot be accomplished within this timeframe. You agree that you will not be intoxicated when receiving delivery of such Age-Restricted Products.
F. Right to Refuse to Sell or Deliver Age-Restricted Products
Your placement of an order for an Age-Restricted Product does not necessarily assure that Circle K or Food Rocket will accept your order or that Food Rocket will arrange for delivery of your order. Circle K and Food Rocket (including its Couriers) reserve the right, at their sole discretion, to refuse to sell or deliver Age-Restricted Products for any reason, including without limitation, delivery or sales to a person:
1. Who is not of legal age in accordance with applicable Laws;
2. Who is unable to provide a valid government-issued identification;
3. Who is visibly intoxicated at the time of delivery;
4. Who is at a location that presents a safety issue to Food Rocket, Circle K, their Couriers, or any other individual; or
5. Who is located in a place or situation where delivery may be inappropriate (such as in the presence of underage individuals).
If any applicable legal requirement for the sale or delivery of an Age-Restricted Product is not met, Food Rocket and Circle K each reserve the right to cancel the sale or delivery of your entire order, in their sole discretion.
If Food Rocket believes that your use of the Services is fraudulent or unlawful, it may suspend your use of the Services.
G. Consent to Retention and Disclosure of Certain Information
By viewing, using, or accessing the Services in connection with an Age-Restricted Product, you expressly consent to:
1. Provide your full name, birthdate, residential address, and other personal information as may be required;
2. Provide a copy of your government-issued identification;
3. Circle K or Food Rocket’s verification of your name, birth date, residential address, and other information through a third-party commercially available database for the purpose of ensuring you are lawfully entitled to use the Services with respect to such Age-Restricted Product.
FURTHER, BY VIEWING, USING, OR ACCESSING THE SERVICES FOR AGE-RESTRICTED PRODUCTS, YOU HEREBY CONSENT TO CIRCLE K AND FOOD ROCKET’S RETENTION AND DISCLOSURE OF ALL PERSONAL INFORMATION THAT MAY BE REQUIRED TO BE RETAINED OR DISCLOSED UNDER APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION:
1. COPIES OF ALL INVOICES FOR AGE-RESTRICTED PRODUCTS;
2. YOUR NAME, DATE OF BIRTH, RESIDENTIAL ADDRESS, AND DELIVERY ADDRESS;
3. PHOTOCOPIES OF ANY GOVERNMENT-ISSUED IDENTIFICATION USED TO VERIFY YOUR IDENTITY, AGE, AND ADDRESS IN CONNECTION WITH THE SALE AND DELIVERY OF AGE-RESTRICTED PRODUCTS;
4. YOUR CONTACT INFORMATION; AND
5. THE BRAND AND QUANTITY OF AGE-RESTRICTED PRODUCTS PURCHASED AND DELIVERED.
You further hereby acknowledge and agree that any credit card statements or billing statements relating to the Age- Restricted Product may identify the type of Age-Restricted Product being furnished, including use of the words “tobacco product”, “alcohol product”, etc.
H. DISCLAIMER OF LIABILITY
NEITHER FOOD ROCKET NOR CIRCLE K, NOR ANY OFFICER, DIRECTOR, EMPLOYEE, SHAREHOLDER OR AGENT OF FOOD ROCKET OR CIRCLE K, SHALL BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY CLAIMS RELATING TO THE PURCHASE, SALE, DELIVERY AND/OR CONSUMPTION OF AN AGE-RESTRICTED PRODUCT OR ANY CONSEQUENCES WHICH MAY RESULT THEREOF.
I. Reliance on Age-Restricted Products Terms
In using the Services with respect to Age-Restricted Goods, you acknowledge and agree that Food Rocket and Circle K may rely upon the consents, representations, certifications, and agreements set forth in this Age-Restricted Products section.
J. Conflicting Terms & Conditions
In the event of any inconsistency, conflict, or ambiguity among the terms of this Age-Restricted Products section and the rest of the Terms, the terms and conditions of this Age-Restricted Products section shall control.
Delivery of Alcoholic Beverages
The Services enable you to search online and order delivery of alcoholic beverages and other products available for sale by licensed alcohol retailers that have agreed to use Food Rocket’s Services ("Third Parties"), or by Food Rocket itself. The Food Rocket services are not meant to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler, or distributor of alcoholic beverages to any retailer of alcoholic beverages or to facilitate any improper exclusionary practices by any alcoholic beverage licensee. When you search for a product, the Services may show you its availability, price and other information based on your location and information provided by the Third Parties or Food Rocket that service your geographical location. Delivery of alcoholic beverages may be limited in time or restricted or unavailable in some geographical locations due to local laws, regulations or other restrictions.
It is the responsibility of the Third Party or Food Rocket, respectively, to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish you with alcoholic beverages or tobacco products. Food Rocket, as the Service provider, may request your identity verification such as a valid form of photo identification with birthdate and a signed acknowledgment confirming acceptance at the time of ordering process and at the time of physical delivery, as required by local laws and regulations. When your age or identity cannot be verified, when you appear intoxicated, or when the situation is otherwise unsafe or inappropriate, Food Rocket may refuse delivery. The delivery of alcoholic beverages or tobacco products may not be left unattended and requires that you will be 21 years old or older to accept and sign for the delivery with alcoholic beverages or tobacco products. If Food Rocket is unable to deliver the order, we may charge a restocking fee. Subsequent delivery attempts are at the discretion of Food Rocket.
You agree that your use of the Services, the purchase of any of the Products, delivery of the Products, and/or use of the Products will not violate any local, state, or federal laws and regulations (the “Laws”), including, but not limited to, the Family Smoking Prevention and Tobacco Control Act (21 USC §301 et seq.), the Food, Drug and Cosmetic Act (Section 801(p)(1)), and the Prevent All Cigarette Trafficking Act (PL 111-154). You certify that the intended use of the Products will not be as drug paraphernalia in violation of 21 USC §863 (PL 113-31). Food Rocket does not promote the use of marijuana, or any other controlled substance as defined under 21 USC §863 (PL 113-31). Any tobacco and tobacco-related Products are solely for legal, personal tobacco use and nothing in the Services shall be construed as condoning or promoting the use of any controlled or illegal substance. The Services are intended for legally authorized users only. By viewing, using or accessing the Services for tobacco and tobacco-related Products, you certify that you are at least 18 years of age (or 21 years of age in states that mandate the legal age to purchase tobacco and/or tobacco related products to be 21), are legally authorized to purchase tobacco and tobacco-related products, and will present a government-issued identification, evidencing your age, consistent with applicable legal requirements. You agree that failure to comply with these terms would result in cancellation and rejection to release the tobacco and tobacco-related Products to you. Furthermore, you may be responsible for restocking fees. You agree that you will not furnish tobacco and tobacco-related Products obtained through Food Rocket to any Person who is not a lawful consumer.
Changes to Services
We're always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We'll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Food Rocket Fees
You may choose to purchase Products through the Services and such Products are offered at the prices set forth on our foodrocket.me website or our mobile applications. Food Rocket may limit or cancel quantities of Products purchased, and it reserves the right to refuse any order. In the event Food Rocket needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. The prices displayed are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. Sales tax will be determined by the shipping address of the order and will automatically be added to the order. Food Rocket is required by law to apply sales tax to orders to certain states. Purchased Products will be shipped to the shipping address of the order. Any payment terms presented to you in the process of purchasing Products are deemed part of these Terms.
Food Rocket is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Food Rocket has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
Food Rocket Mobile Applications
You acknowledge and agree that the availability of our mobile application is dependent on the third-party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an "App Store"). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
Through our mobile applications, you may purchase certain Products ("In-App Purchase"). When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html. Food Rocket is not a party to any In-App Purchase.
Food Rocket iOS Mobile Application
These Terms apply to your use of all the Services, including our iOS applications available via the Apple, Inc. ("Apple") App Store (the "Application"), but the following additional terms also apply to the Application
Warranty Disclaimer. Neither Food Rocket nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided "AS IS" and without any warranty of any kind from Food Rocket or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE PRODUCTS, SERVICES AND CONTENT ARE PROVIDED BY FOOD ROCKET (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FOOD ROCKET (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR INJURIES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID OR PAYABLE BY YOU TO FOOD ROCKET IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Food Rocket, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Food Rocket's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof. You must comply with any local, state or national laws applicable to your use of the Services, such as rules and regulations regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages and tobacco-related Products. You must comply with all applicable U.S. or other export and re-export restrictions.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Food Rocket and limits the manner in which you can seek relief from Food Rocket. Both you and Food Rocket acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Food Rocket's officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the "Rules") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees.
(c) Small Claims Court; Infringement. Either you or Food Rocket may assert claims, if they qualify, in small claims court in San Francisco, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION, YOU AND FOOD ROCKET WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Food Rocket are instead choosing to have claims and disputes resolved by arbitration. 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 any litigation between you and Food Rocket over whether to vacate or enforce an arbitration award, YOU AND FOOD ROCKET WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Food Rocket is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Foodcast, Inc., 228 Hamilton Avenue 3rd floor Palo Alto, CA 9430, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Food Rocket to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Food Rocket agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Food Rocket.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Food Rocket may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Food Rocket agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Food Rocket, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Food Rocket, and you do not have any authority of any kind to bind Food Rocket in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application you and Food Rocket agree there are no third-party beneficiaries intended under these Terms.