Diner App, Co. End User License Agreement and Terms of Service
Last Updated: May 4, 2017
The Diner App, Co. End User License Agreement and Terms of Service (“EULA”) is a binding contract between you, an individual user (“you”) and Diner App, Co. (“Diner,” “we,” or “us”) governing your use of the Diner website found at http://www.dinerapp.co, and mobile application (the “App”) (the Website and the App are, collectively, the “Service”). BY INSTALLING THE APP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU ARE USING THE SERVICE ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU: (i) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND THAT ENTITY TO THE EULA; AND (ii) AGREE TO BE BOUND BY THE EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE SERVICE.
Summary of Material Terms. As provided in greater detail in the EULA (and without limiting the express language of the EULA), you acknowledge the following:
the App is licensed, not sold to you, and that you may use the App only as set forth in the EULA;
the use of the App may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
the App is provided “as is” without warranties of any kind, and Diner’s liability to you is limited;
disputes arising under the EULA will be resolved by binding arbitration. By accepting the EULA, as provided in greater detail in Section 22 of the EULA, you and Diner are each waiving the right to a trial by jury or to participate in a class action;
the App requires access to the following service on your mobile device: your device identifier; and
if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” in Section 25.
Diner Service Overview.
The Service is a networking and communication platform that allows hosts and users to set up events (meals) chat, post content, make comments and share photos, and share other content with other users, specifically designed as an event management tool that connects people for meals (authentic networking opportunities).
You must be at least 18 years of age to use the Service. By agreeing to the EULA, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to the EULA and you agree to be bound by the EULA on behalf of that organization.
Scope of License to Users.
License Grant to You.
The Service is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, Diner hereby grants you a personal, limited, revocable, non-transferable license to: (i) use the App on compatible, authorized devices that you own or control; and (ii) access and use the Website, in both instances solely for your own use or for the entity on whose behalf you are authorized to act.
You may not modify, alter, reproduce, or distribute the App. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
Applicability to Updates.
The EULA will govern any updates provided to you by Diner that replace or supplement the App, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
Accounts and Registration.
To access most features of the Service, you may need to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com. The Service may allow you to register and log in using sign-on functionality provided by social networks or third party sites or services, such as Facebook. You agree to abide by the social networks’ or third parties’ terms and conditions applicable to you. Diner reserves the right to accept or deny any request to create an account in its sole discretion for any reason or no reason at any time.
User Content Generally.
Certain features of the Service may permit users to upload content to the Service, including comments, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
Limited License Grant to Diner.
By posting or publishing User Content, you grant Diner a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any and all media or distribution methods (now know or later developed) as permitted by the functionality of the Service.
Limited License Grant to Other Users.
By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by the EULA and the functionality of the Service.
User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Diner and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Diner, the Service, and the EULA; and
your User Content, and the use of your User Content as contemplated by the EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Diner to violate any law or regulation.
User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Diner may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates the EULA or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Diner with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to the EULA, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Diner does not permit copyright-infringing activities on the Service.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Diner App Co. ATTN: Legal Department (Copyright Notification) 140 Scholes Street, NY 11206 Email: firstname.lastname@example.org
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; a description of the copyright-protected work or other intellectual property right that you claim has been infringed; a description of the material that you claim is infringing and where it is located on the Service; your address, telephone number, and email address; a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Diner will promptly terminate without notice the accounts of users that are determined by Diner to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
By using the Service you agree not to:
use the Service for any illegal purpose or in violation of any local, state, national, or international law; violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right; post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server; perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other account on the Service without permission, or falsifying your age or date of birth; sell or otherwise transfer the access granted under the EULA or any Materials (as defined below) or any right or ability to view, access, or use any Material; or attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.
Third-Party Services, Third Party Fees, and Linked Websites.
Access to Third Party Services. The Service may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third Party Services”).
No Control Over Third Party Services.
Diner does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services, Diner does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services.
Terms of Third Party Services.
Disclaimer of Liability for Third Party Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. Diner disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against Diner with respect to the content or operation of any Third Party Services.
Third Party Fees.
Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all of those fees and abide by all of those terms. You are solely responsible for all of those fees incurred by you for use of the Service.
Third Party Software.
The software you download consists of a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of the EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in the EULA is intended to impose further restrictions on your use of the Third Party Software.
Fees; Payment Terms.
Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Diner changes the fees for the Service, including by adding additional fees or charges, Diner will provide you advance notice of those changes. If you do not accept the changes, Diner may discontinue providing the Service to you. Diner will charge the payment method you specify at the time of purchase via its third party payment processor. You authorize Diner (or its third party payment processor) to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Diner (or its third party payment processor) may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Diner (or its third party payment processor) to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 30 business days for the update or cancellation to take effect.
Termination of Use; Discontinuation and Modification of the Service.
You may terminate your account at any time by contacting customer service at email@example.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of the EULA, your permission from us to use the Service will terminate automatically. In addition, Diner may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 13. All Additional Terms are incorporated by this reference into, and made a part of, the EULA.
You Must Have Permission to Send SMS Text Messages to Others. You may be able to use the Service to send SMS text messages, which may include marketing content, to individuals who are not users of the Service. For example, you may invite others to use the Service by text message. You represent and warrant that you will initiate and send text messages using the Service only to those individuals who have expressly agreed to receive SMS text messages, including marketing text messages, from you and us. You agree that you control the sending of text messages you initiate through the Service and that we are limited to facilitating your text message transmissions.
You Consent to Receive SMS Text Messages from Us.
By providing us with your mobile telephone number, you consent to receive text messages at that number as requested for account verification, invitations, and other purposes related to the Service. While we do not charge a fee for text messages, your carrier may charge standard messaging, data, and other fees. You are responsible for these charges. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
Modification of the EULA.
We reserve the right, at our discretion, to change the EULA on a going-forward basis at any time. Please check the EULA periodically for changes. If a change to the EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified EULA. Immaterial modifications are effective upon publication. Disputes arising under the EULA will be resolved in accordance with the version of the EULA that was in effect at the time the dispute arose.
Ownership; Proprietary Rights. The Service is owned and operated by Diner. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Diner are protected by intellectual property and other laws. All Materials included in the Service are the property of Diner or our third-party licensors. Except as expressly authorized by Diner, you may not make use of the Materials. Diner reserves all rights to the Materials not granted expressly in the EULA. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Diner an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
You are responsible for your use of the Service, and you will defend and indemnify Diner and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Diner Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of the EULA, any representation, warranty, or agreement referenced in the EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE DINER ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE DINER ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE DINER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THE EULA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE DINER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY DINER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 22.4(iii), THE AGGREGATE LIABILITY OF THE DINER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THE EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO DINER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THE EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE EULA. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Disputes.
DINER IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE DINER (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
The EULA is governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under the EULA, then you and Diner agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Kings County, New York for the purpose of litigating any dispute. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Diner in the most expedient and cost effective manner, you and Diner agree that every dispute arising in connection with the EULA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE EULA, YOU AND DINER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 22.1, nothing in the EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Diner will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Diner.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Diner’s address for Notice is: Diner App Co., 140 Scholes Street, Brooklyn., N.Y. 11206. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Diner may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Diner must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Diner will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Diner in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with the EULA, Diner will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Kings County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Diner for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions.
YOU AND DINER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Diner agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision.
If Diner makes any future change to this arbitration provision, other than a change to Diner’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Diner’s address for Notice, in which case your account with Diner will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 22.6 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to the EULA.
Consent to Electronic Communications.
The Service is offered by Diner App Co., located at 140 Scholes Street., Brooklyn, NY 11206. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
Notice Regarding Apple.
If you are using our mobile applications on an iOS device, the terms of this Section 25 apply. You acknowledge that the EULA is between you and Diner only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 25 of the EULA, and upon your acceptance of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 25 of the EULA against you. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.