1. Introduction
Please read this page carefully. It contains the terms of Use and Agreements (the "Terms of Use") governing your access to and use of Cafiola or Cafiola.com Web site/s or application and the Services (as each are defined below) provided by Kbert LLC, a Washington LLC doing business as Cafiola or Cafiola.com (collectively, "Cafiola"). Cafiola provides a platform that enable meal providers such as restaurants, cooks and chefs to provide catering or meals to users and the general public.
2. Binding Agreement
These Terms constitute a binding agreement between You the USER(dinner) and Cafiola or the company operating the Web site for the country in which You live or in which business is headquartered ("Cafiola"), and are deemed accepted by You each time that You use or access any Cafiola Website or application, Services. If You do not accept these Terms of Use and Conditions or You do not meet or comply with their provisions, You may not use the Cafiola Websites or Services. These Terms of Use and Conditions are effective as of January 01,2017. Cafiola may revise these Terms at any time by posting an updated version to this Web page. You should visit this page periodically to review the most current Terms because they are binding on You. Your access to or use of the Cafiola Website or Services indicates your acceptance of these Terms. You are agreeing to use the Site at your own risk.
3. Terms &Eligibility
You must be 18 years of age or older to visit or use any Cafiola Site in any manner, and, if under the age of 18 or the age of majority as that is defined in Your jurisdiction, must use any Cafiola Site under the supervision of a parent, legal guardian, or other responsible adult. By using the Cafiola Sites, applications, or accepting these Terms, You represent and warrant to Cafiola that You have reached the age of majority in your jurisdiction, and that You have the right, authority and capacity to agree to and abide by these Terms. Cafiola owns and operates this website (cafiola.com), and any related mobile sites and mobile applications, and selected other domains (collectively, the "Sites"). These terms of use (the “Agreement”) constitute a contract between you and us The restaurants, chefs or cooks ( collectively the “ meal providers”) available on our sites (Cafiola.com and all other related sites) operate independently and have entered into agreements with us to provide the food, available to you on the Sites. Cafiola would provide on some occasion the delivery, of the food or meals provided by the cooks, chefs or restaurants to you the customers and would collect payments on behalf of those restaurants. The “meal providers” are required to comply with federal, state and local laws, rules, regulations, and standards pertaining to the preparation, sale and marketing of food, including food preparation and safety and menu disclosure; Cafiola is not responsible for the “meal providers’ food preparation or safety and does not verify any restaurant’s compliance with applicable laws. In addition, Cafiola does not guarantee the quality of what the “meal providers” sell, nor does it guarantee the services provided by the restaurant, including in those cases where the restaurant provides the delivery or pickup services. All chefs and restaurants are required to use facilities that meet health and safety conditions or standards of the states where they operate. In addition, Cafiola does not independently verify representations made by “meal providers” regarding their food, including without limitation any menu- or restaurant, chef or cook -level descriptors, ingredient lists, calorie information or disclosures. Some deliveries are provided by Cafiola’s network of independent delivery service providers (“DSPs”) or by Cafiola own drivers or are made available at “designated pickup locations”. DSPs have entered into agreements with Cafiola, which require DSPs to comply with all applicable federal, state and local laws, rules and regulations, including without limitation traffic laws, requirements of the applicable Department of Motor Vehicle, and applicable insurance requirements. Cafiola shall not be liable or responsible for any delivery services provided by DSPs or any errors or misrepresentations made by them. You may only use the Sites to order if you are the authorized holder of the credit card used for payment or an authorized user of a corporate account and if you are able to form a binding contract with us. In addition, if you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites, and your parent or legal guardian must read and agree to this Agreement prior to your using the Sites. Notwithstanding the foregoing, you are prohibited from using the Sites if you are under the age of 13. Use of the Sites to order requires that you register and/or create an account ("Account"). To register and create an Account, you must create a username and password and provide certain personal information. In consideration of the use of the Sites' services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Cafiola has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Cafiola has the right to block your current or future use of the Sites (or any portion thereof). You are responsible for maintaining the confidentiality and security of your Account and password and for all activities or any other actions that occur under or are taken in connection with your password or Account. You agree to (a) immediately notify Cafiola of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. Cafiola will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.
Policy for Alcoholic beverages
Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you acknowledge that you are at least 21 years of age. Upon delivery or pickup, as applicable, you shall present a government-issued identification card, evidencing your age. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you shall forfeit the cost of such beverages.
Membership policy/Services
Membership is required in order to be able to buy some items at discounted prices on Cafiola's web site. A valid credit card is required for registration as a member of Cafiola. Members will be charged an annual fee in order to be become members. Members would be notified every year prior to expiration of their membership to renew their membership. Cafiola reserved the right to change the membership fee amount at any time and it sees appropriate in order to operate effiently. The amount charged for membership can be different based on user location, zipcode or state where Cafiola operates. Such disparities shall be made to accomodate for operating discrepancies related to locations. Membership benefits include discounted prices, free deliveries in items ordered from your stores located in members' zipcode. Cafiola might make changes to its offered services at its own discretion.
Credit policy
Unless prohibited by law, in the event of any error in your order or the amount you were charged, you are entitled to a credit, provided it is brought to our attention within 60 days of your order date. If you do not raise the issue within 60 days of your order date, you waive the ability to receive a credit for any error. Material, site Contents With the exception of User Content (defined below), the Sites and everything on them, from text to photos to videos to graphics and software, (collectively, the "Materials") are owned by or licensed to Cafiola. The Sites and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties and/or other proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Sites and except for the trademarks, service marks, logos and trade names of other companies that are displayed on the Sites, all trademarks, service marks, logos, trade dress and trade names are proprietary to Cafiola, including without limitation; CAFIOLA; Please be advised that Cafiola enforces its intellectual property rights to the fullest extent of the law. We grant you a limited, non-exclusive, non-transferable and revocable license to access and use the Sites and/or the Materials for your personal use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Sites. Any other use of the Sites and/or the Materials is strictly prohibited. No Materials may be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on the Sites should be interpreted as granting to you any license or right to use any of the Materials and/or third party proprietary content on the Sites without the express written permission of Cafiola or the appropriate third party owner, as applicable. If you download any software from the Sites, you may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form. Cafiola reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Sites and/or services offered on or through the Sites (or any part thereof), including but not limited to the Sites' features, look and feel, and functional elements and related services.
Content and User Contact
I. User Conduct By accessing the Sites, you agree:
• to comply with all applicable laws regarding online conduct and submission of acceptable User Content;
• not to use the Sites or the services or submit content to the Sites if you are under the age of 13;
• not to use the Sites to purchase alcohol unless you and the alcohol recipient are 21 or older and present a valid photo identification(s) verifying your age at the time of alcohol delivery;
• not to access the Sites or services using a third-party's account/registration without the express consent of the account holder;
• not to attempt, through any means, to gain unauthorized access to any part of the Sites and/or any service, other account, computer system and/or network connected to any Cafiola server;
• not to attempt to impersonate another user or person;
• not to advertise, or solicit, any user to buy or sell any products or services, unless authorized by Cafiola;
• not to deep-link to the Sites and/or access the Sites manually and/or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy and/or monitor any portion of the Sites and/or any Materials and/or other content on the Sites, unless Cafiola has given you specific permission to do so in writing;
• not to conduct any kind of systematic retrieval of data or other content from the Sites;
• not to create or compile, directly or indirectly, any collection, compilation, database or directory from the Site content;
• not to use the Sites in any manner that could damage, disable, overburden and/or impair any Cafiola server, or the network(s) connected to any Cafiola server, and/or interfere with any other party's use and enjoyment of the Sites;
• not to transmit any chain letters or junk email;
• not to use any information obtained from the Sites or the Cafiola services in order to contact, advertise to, solicit, or sell to any user or restaurant;
• not to sell or transfer your profile;
• not to use the Sites to engage in commercial activities apart from sanctioned use of Cafiola services;
• not to use the Sites as part of an effort to compete with Cafiola, the Sites, or the Cafiola services;
• not to copy any content, including, but not limited to restaurant menu content and third-party reviews, for republication in any format or media;
• not to license, sell and/or otherwise provide access to and/or use of the Sites to any third party, including without limitation to build a competitive product and/or service;
• not to create restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Sites;
• not to copy, publish or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
• not to harass, annoy, intimidate or threaten any Cafiola employees or agents engaged in providing any portion of Cafiola's services;
• not to display an advertisement, or accept payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Sites or
Cafiola's services on behalf of that person, such as posting blogs or bulletins with a commercial purpose;
• not to delete the copyright or other proprietary rights notice from any User Content or any portion of the Sites or Cafiola's services;
• not to upload or transmit viruses or other harmful, disruptive or destructive files;
• not to disrupt, interfere with, or otherwise harm or violate the security of the Sites, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Sites or affiliated or linked sites (including those of our restaurant partners); and
• not to use the Sites for any illegal purposes.
• that any information on the website( such as calories,servings) are not to be held as scientific and that Cafiola shall not be held responsible for inacurate information.
You agree that the consequences of commercial use or re-publication of User Content or Materials from the Sites or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that Cafiola will be entitled to temporary and permanent injunctive relief to prohibit such use or activity, without the need to prove damages.
II. Content You Provide
Cafiola may provide you with interactive opportunities on the Sites, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked restaurants (collectively, "Interactive Areas"). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings and/or other materials and/or content that you submit, post and/or otherwise transmit to the Sites ("User Content").
III. Use of Your Content
The works of authorship contained in the Cafiola.com Website (the "Website"), including but not limited to all design, text, sound recordings and images, are owned, except as otherwise expressly stated, by Cafiola.com and its subsidiaries. Except as otherwise expressly stated herein, they may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without the prior written consent of Cafiola, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C. Article 107), as amended, and then, only with notices of Cafiola's proprietary rights provided that You may download information and print out hard copies for your personal use, so long as You do not remove any copyright or other notice as may be contained in information, as downloaded. Cafiola is the trademark name of the Cafiola company
IV. Conduct within Interactive Areas
By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Sites. We do our best to encourage civility and discourage disruptive communication on the Sites. We also discourage communications that incite others to violate our standards. We expect your cooperation in upholding our standards. You are responsible for all of your User Content.
You agree not to provide any User Content that:
• is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically and/or otherwise objectionable;
• has a commercial, political or religious purpose;
• is false, misleading and/or not written in good faith;
• infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
• is illegal and/or promotes illegal activity;
• contains unauthorized advertising and/or solicits users to a business other than those on the Sites; and/or
• is intended to interrupt, destroy or limit the functionality or integrity of any computer software, hardware or Materials on the Sites or other websites.
Cafiola may monitor any and all use of the Sites; however, we are under no obligation to do so. We may manage the Sites in a manner intended to protect our property and rights and to facilitate the proper functioning of the Sites. If any User Content or conduct on our Sites violates our standards, or any other terms and conditions of this Agreement; or interferes with other peoples' enjoyment of the Materials or our Sites; or that we believe is inappropriate; in our sole judgment, we reserve the right to change, delete or remove, in part or in full, any such User Content or Materials; and we further reserve the right to terminate or suspend access to any Interactive Areas or any Sites. Cafiola will cooperate with local, state and/or federal authorities to the extent required by applicable law in connection with User Content.
V. Ratings and Reviews
The Sites may allow you to rate and post reviews of restaurants and other businesses ("Ratings and Reviews"). Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of Interactive Areas and the Sites' standards of conduct. Ratings and Reviews are not endorsed by Cafiola, and do not represent the views of Cafiola or of any affiliate or partner of Cafiola. Cafiola does not assume liability for Ratings and Reviews or for any claims, liabilities or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the restaurant; (2) you may not have a proprietary or other affiliation with either the restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the restaurants' products, services or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
Electronic contacts Diners placing orders will receive up to text messages or email alert indicating order confirmation. The number of messages or email can be up to six. User can stop message by replying stop or unsubscribing to the services on the cafiola web site. Additionally, diners may receive some text messages following receipt of a delivered order soliciting feedback relating to that order. If you do not respond to a text question soliciting your feedback, the remainder of the questions pertaining to that order will cease. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from Cafiola when making subsequent orders on the site. One must successfully complete the delivery of an order. Standard data and message rates may apply for text message alerts depending on your. mobile phone carrier.
DISCLAIMER
THE SITES, THE MATERIALS AND ALL OTHER CONTENT ON THE SITES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE MATERIALS AND ALL OTHER CONTENT ON THE SITES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CAFIOLA DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE SITES WILL BE SECURE, UNINTERRUPTED AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE SITES, THE MATERIALS AND/OR OTHER CONTENT ON THE SITES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. CAFIOLA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES, THE MATERIALS AND/OR ANY OTHER CONTENT ON THE SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE QUALITY AND/OR TIMING OF A DELIVERY ORDERED ON THE SITES AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT CAFIOLA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SITES, THE MATERIALS AND/OR OTHER CONTENT ON THE SITES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU. THIS EXCLUSION IS ENFORCEABLE IN NEW JERSEY.
LIMITATION OF LIABILITY
IN NO EVENT SHALL CAFIOLA BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF CAFIOLA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), IN A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SITES. CAFIOLA ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SITES. CAFIOLA ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL CAFIOLA'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR NEGLIGENCE EXCEED (A) THE AMOUNT PAID BY YOU TO CAFIOLA OR A CAFIOLA'S RESTAURANT, IF ANY, OR (B) $1000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS LIMITATION IS ENFORCEABLE IN NEW JERSEY. YOU AND CAFIOLA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND CAFIOLA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH THE SITE OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION.
THIRD PARTY LINKS The Sites may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). Cafiola does not review, monitor, operate and/or control the Third Party Websites and Cafiola makes no guarantees, representations and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, Cafiola is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access and/or use of the Third Party Websites, including providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. Cafiola reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
ADDITIONAL TERMS Your use of the Sites is subject to any and all additional terms, policies, rules or guidelines applicable to Cafiola's services or certain features of the Sites that we may post or link to on the Sites (collectively, the "Additional Terms"), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions or content on the Sites. All such Additional Terms are hereby incorporated into this Agreement by reference. .
Privacy policy
Cafiola respects the intellectual property of others, and we ask our Users and content partners to do the same. The unauthorized posting, reproduction, copying, distribution, modification, public display or public performance of copyrighted works constitutes infringement of the copyright owners rights. As a condition to your use of the CafiolaSites, You agree not to use any CafiolaSite to infringe the intellectual property rights of others in any way. We will terminate the accounts of any the CafiolaSites Users, and block access to the Cafiola Sites of any Users who are repeat infringers of the copyrights, or other intellectual property rights, of others. We reserve the right to take these actions at any time, in our sole discretion, with or without notice, and without any liability to the User who is terminated or to the User whose access is blocked. If you believe that your copyrighted work has been copied and is accessible on the Sites or a website through which our services may be accessed in a way that constitutes copyright infringement, please provide Cafiola's administration with notification containing the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
3. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Sites;
4. Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
5. A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
VIOLATIONS/CHANGES OF THE AGREEMENT
Cafiola reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including without limitation the right to block access to the Sites from a particular account, device and/or IP address.
We may change this Agreement from time to time and without prior notice. If we make a change to this Agreement, it will be effective as soon as we post it, and the most current version of this Agreement will always be posted under the "Terms of Use" tab ("Updated Terms"). If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the Sites after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you will stop using the Sites. This Agreement will govern any disputes arising before the effective date of the Updated Terms.
GOVERNING LAW
You acknowledge and agree that your access to and/or use of the Sites, the Materials and other content on the Sites is subject to all applicable international, federal, state and local laws and regulations. The terms, conditions and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflict of laws principles.
DISPUTE RESOLUTION
I. Arbitration You agree that all claims, disputes or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to your use of the Sites, the Materials and/or other content on the Sites, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a 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. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and Cafiola are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Cafiola otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under this Agreement will be brought within one year of its accrual or it will be waived.
II. Arbitration Rules The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425& or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
III. Arbitration Process A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dDocName=ADRSTAGE2034889&RevisionSelectionMethod=LatestReleased and a separate affidavit for waiver of fees for California residents only at https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dDocName=ADRSTG_004304&RevisionSelectionMethod=LatestReleased .) The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. Arbitration Location and Procedure Unless you and Cafiola otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Cafiola submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
V. Arbitrator's Decision The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law. Cafiola will not seek, and hereby waives all rights Cafiola may have under applicable law to recover attorneys' fees and expenses if Cafiola prevails in arbitration.
VI. Fees Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $15,000, Cafiola will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
VII. Changes Cafiola reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if Cafiola changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Sites after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Cafiola written notice of such rejection by mail or hand delivery to: Cafiola, Attn: Dispute Resolutions, 111 West Washington Street, Chicago, Illinois 60602, or by email from the email address associated with your account to: admin@Cafiola.com, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Cafiola in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
WAIVER AND SEVERABILITY
Any waiver by Cafiola of any provision of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to terms contained herein.