Last Updated: February 7th, 2020View Maker Terms
Welcome to Tastemade!
CHANGES TO TERMS
We may change the Terms at any time, in our sole discretion. If we do so, you agree that Tastemade may notify the updated Terms by posting them on the Services, and that your use of the Services after the effective of the updated Terms (or doing such other conduct as we may reasonably specify) constitutes your agreement to the updated Terms. It’s important that you review the Terms whenever we modify them because if you continue to to use the Services after we have posted modified Terms on our website, you are indicating that you agree to be bound by modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Arbitration Notice: Unless you opt out of arbitration within 30 days of the date you first agree to these by following the opt-out procedure specified in the “Arbitration” section below, and except for certain types of disputes described in the “Arbitration” section below, you agree that disputes between you and Tastemade will be resolved by binding, individual arbitration and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
WHO MAY USE THE SERVICES
To use the Services, you must be at least 13 years or older and capable of forming a binding contract with Tastemade and are not barred from using the Services under applicable law. Tastemade may, in its sole discretion, modify or revise these Terms and policies at any time.
When creating your account, you must provide accurate and complete information. Tastemade prohibits the creation of, and you agree that you will not create, an account for anyone other than yourself. You also represent that all information you provide or provided to Tastemade upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy. You are solely responsible for the activity that occurs on your account, and it’s your sole responsibility to protect your password from unauthorized use. You must notify Tastemade immediately of any breach of security or unauthorized use of your account. You agree that you will not solicit, collect or use the login credentials of other Tastemade users. Additionally, you may never use another’s account without permission.
Although Tastemade will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Tastemade or others due to such unauthorized use, and we might have to suspend or terminate your account in such case. Tastemade will not be responsible for any unauthorized access to, or alteration of, data sent to or received by your account, regardless of whether the data is actually received by Tastemade.
The Services are a temporary free service (except as described below for paid subscriptions) and Tastemade can begin charging at any time for use of any or all parts of the Services. Tastemade reserves the right to discontinue any aspect of the Services at any time. Tastemade reserves the right to reclaim user names that become inactive or on behalf of businesses or individuals that hold legal claim or trademark on those usernames. These Terms apply to all users of the Services, including users who contribute submissions, as described below.
CONTENT OWNERSHIP, RESPONSIBILITY AND REMOVAL
For purposes of these Terms: (i) “Content” means text, graphics, images, music, audio, video, works of authorship of any kind and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that account holders (including you) provide to be made available through the Services. Tastemade doesn’t claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the that, Tastemade and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content. The Services may also feature the trademarks, service marks and logos of third parties and each owner retains all right in such trademarks, service marks and logos, and any use thereof will inure solely to the benefit of their respective owners.
RIGHTS GRANTED BY TASTEMADE
Subject to your compliance with these Terms, Tastemade grants you a limited, non-exclusive, non-transferable, revocable, license, with no right to sublicense, to access and view the Content and User Content where applicable, available via the Services, solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
RIGHTS IN USER CONTENT GRANTED BY YOU
By making any User Content available through Services you hereby grant to Tastemade a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable license, with the right to grant sublicenses, to access, use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, view, download, and print your User Content in connection with operating and providing the Services and Content, in any and all media now existing or hereafter developed.
You are solely responsible for all your User Content. This means that you represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Tastemade on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You understand and agree that we may enable functionality where any User Content you submit will be publicly available on our mobile, desktop and other software applications (the “Apps”).
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
If we do add such functionality, we will include the ability for you to remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
CONTENT FROM SOCIAL MEDIA AND NETWORKING SITES
As part of the functionality of the Services, you may link your account to an SNS Account by allowing Tastemade to access your SNS Account, as permitted under the applicable terms and conditions that govern your use of each SNS Account. You agree that you won’t disclose your SNS Account login information to Tastemade and/or grant Tastemade access to your SNS Account unless you are permitted to do so by the applicable SNS. Tastemade won’t have any obligation to pay any fees or be subject to any usage limitations imposed by SNS’s.
By linking your SNS Account to your Tastemade account, you understand that Tastemade will access, make available and store (if applicable) some of the content that you have provided to and stored in your SNS Account so that it is available on and through the Services via your account. Unless otherwise specified in these Terms, all such content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the SNS Accounts you choose and subject to applicable SNS privacy settings, personal information that you post to your SNS Accounts and information about your SNS network will be available on and through your Account. Please note that if an SNS Account or associated service becomes unavailable or Tastemade’s access to such SNS Account is terminated by the third party service provider, then the content from your SNS Account will no longer be available on and through the Services. You may disable the connection between your Account and your SNS Accounts by emailing us at [email protected] with your request. We’ll take steps to disable such connection as soon as practicable.Please note that your relationship with the SNS Account service providers associated with your SNS Accounts is governed solely by your agreement(s) with such SNS Account service providers.
Please refer to our social media moderation policy here.
As part of the Services, you may (if enabled) receive push notifications, text messages, alerts, emails or other types of messages directly sent to you outside or inside the Apps (“Push Messages”). If you decide to enable such Push Messages, you agree to receipt of communications from Tastemade via the Push Messages. You have control over the Push Messages settings and can opt in or out of these Push Messages through the Services (with the possible exception of infrequent, important service announcements and administrative messages). Please be aware that third party messaging or data fees may occur relating to these Push Messages depending on the plan you have with your wireless carrier.
You acknowledge and agree that the Services and all materials incorporated by Tastemade on the platforms on which the Services are made available, including, without limitation, all Content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, API’s, products, software, services and all other elements of the Services (collectively, “Material”) constitute the proprietary and valuable property of Tastemade and are protected by United States and international copyrights, patents, trade secrets or other proprietary rights and laws (“IP Rights”). Any use of the Services other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Tastemade. Some of the characters, logos or other images incorporated by Tastemade on Tastemade websites are also protected as registered or unregistered trademarks, trade names and/or service marks owned by Tastemade, Inc.or others (collectively, “Trademarks”). You agree not to use any Tastemade Trademarks without Tastemade’s written consent. Other trademarks, service marks, trade names, logos and other branding used and displayed via the Services (“Third Party Mark(s)”) may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Tastemade. Except as expressly provided in these Terms or in terms provided by the owner of a Third Party Mark, nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Tastemade Trademarks displayed on the Services, without Tastemade’s prior written permission in each instance. All goodwill generated from the use of Tastemade Trademarks will inure to the exclusive benefit of Tastemade.
YOUR USE OF MATERIAL
Your right to make use of the Services and any Material made available to you is subject to your compliance with these Terms. Material is provided to you “as is”. Modification or use of the Material or any other content made available to you by Tastemade for any purpose not permitted by these Terms may be a violation of IP Rights and is prohibited. You may access and display Content for non-commercial, personal, entertainment use only on a single computer or device at a time. The Material and all other content on Tastemade platforms may not otherwise be copied, reproduced, republished, uploaded, posted, transmitted, distributed or used in any way unless specifically authorized by Tastemade. Using any Material on any other web site or networked computer environment is prohibited. Also, decompiling, reverse engineering, disassembling or otherwise reducing the code used in any software for the Services into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited. You understand that when using the Services, you will be exposed to Material from a variety of sources, and that Tastemade is not responsible for the accuracy, timeliness, usefulness or IP Rights of or relating to such Material.
TERMS SPECIFIC TO TASTEMADE APPS
Subject to your compliance with these Terms, Tastemade grants you a limited non-exclusive, non-transferable license to download and install a copy of the applicable App on the mobile devices, computers or smart televisions that you own or control and to run those copies of the App solely for your own personal non-commercial purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store, as applicable (“App Store Sourced Application”), you’ll use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS or an Android-powered product that runs Android, as the case may be; and (ii) as permitted by the terms and conditions of such App Store Sourced Application. Tastemade reserves all rights in and to the App not expressly granted to you under these Terms.
You may not: (i) copy, modify or create derivative works based on the Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (iii) reverse engineer, decompile or disassemble the Apps; or (iv) make the functionality of the Apps available to multiple users through any means.
ADDITIONAL TERMS FOR Apple Applications
For any App Store Sourced Application obtained through the Apple App Store, you acknowledge and agree to the following:
- These Terms are concluded between you and Tastemade, and not with the Apple, and that Tastemade (not Apple), is solely responsible for the App Store Sourced Application. Apple has no obligation to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App Store Sourced Application to conform to any warranty will be the sole responsibility of Tastemade. Apple is not responsible for addressing any claims that you or any third party may have relating to the App Store Sourced Application or your possession or use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App Store Sourced Application or your possession or use of that App Store Sourced Application infringes that third party’s intellectual property rights, Tastemade will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by these Terms.
- Apple and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. You must also comply with all applicable third-party terms of service when using the App Store Sourced Application.
We may charge a fee to access certain Services that require a subscription in order to offer such Services that Tastemade would not otherwise make available without charging a fee. We reserve the right to determine which Services are subject to a subscription fee and may change this from time to time. If you elect to subscribe to such Services, you are a “subscriber”. You can find specific details regarding your subscription at any time by logging into your Tastemade account. You agree your subscription is for individual use only.
By providing a credit card or other payment method accepted by Tastemade (“Payment Method”) for your subscription, you are expressly agreeing that we (or an authorized third-party payment processor such as Stripe, Apple or Google) are authorized to charge you a subscription fee, any other fees for additional services you may purchase and any applicable taxes in connection with your use of your subscription to the Payment Method.
As used in these Terms, “billing” indicates either a charge or debit, as applicable, against your Payment Method. If you elect for a monthly billing option for the applicable Service, the subscription fee will be automatically billed at the beginning of your subscription, andyour subscription will automatically renew monthly and you will be billed each following month unless and until you cancel your subscriptionor the account or Service is otherwise suspended or discontinued pursuant to these Terms. If you elect for an annual billing option for the applicable Service, the subscription fee will be automatically billed at the beginning of your subscription, andyour subscription will automatically renew annually and you will be billed each following year unless and until you cancel your subscriptionor the account or Service is otherwise suspended or discontinued pursuant to these Terms. Subscription fees are fully earned upon payment. To see the start date for your next renewal period, log into your Tastemade account.
For subscriptions, Tastemade, or its third–party payment service provider authorized to accept payments on Tastemade’s behalf (such as Stripe, Apple or Google), automatically bill your Payment Method each month (or year, as applicable) on the calendar day corresponding to the start of your subscription (each such monthly or annual period, a “Billing Period”). In the event your subscription began on a day not contained in a given month, we bill your Payment Method on the last day of such month. If you change your Payment Method, this could result in changing the calendar day upon which you are billed. You acknowledge that the amount billed each Billing Period may vary due to promotional offers, changes in your subscription and changes in applicable taxes, and you authorize us to charge your Payment Method for the corresponding amounts. If Tastemade changes the subscription fee or other charges for your subscription, we will give you advance notice of these changes by email. However, we will not be able to notify you of changes in any applicable taxes.
Very rarely, if there are special circumstances where Tastemade determines it is appropriate (e.g., your subscription Service is unavailable for days due to technical difficulties), we may provide credits to affected subscribers. The amount and form of such credits, and the decision to provide them, are at Tastemade’s sole and absolute discretion, and the provision of credits in one instance does not entitle anyone to credits in the future under similar or different circumstances.
Note that if you subscribe to a Service via an Apple iTunes account or a Google Play account, you must manage your subscription directly through those services, respectively. While the terms of subscription are generally similar to that described above, please refer to the applicable Apple or Google subscription terms for the terms applicable to your subscription, including renewal terms.
ONGOING SUBSCRIPTION AND CANCELLATION
If you selected a subscription option, your subscription will continue in effect on amonth-to-month or year-to-year basis, depending on the option you selected, unless and until you cancel your subscription or the account or Service is otherwise suspended or discontinued pursuant to these Terms. You must cancel your subscription before your renewal date (which you can find in your Tastemade account) in order to avoid the next billing. We will bill the monthly or annual subscription fee plus any applicable taxes to the Payment Method you provide to use during registration (or to a different Payment Method if you change your account information). If you cancel your subscription, cancellation will be effective at the end of the current Billing Period, which means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. You can cancel your subscription by logging into your Tastemade account and clicking “Cancel Subscription”.
brWe may offer a number of subscription plans from time to time with differing conditions and limitations. Any materially different terms from those described in these Terms will be disclosed at your sign-up or in other communications made available to you. Some promotional subscriptions are offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend our offered subscription plans.
brIt is important that each subscriber honor the payment obligations to which the subscriber agreed. Accordingly, we reserve the right to pursue any amounts you fail to pay in connection with your subscription. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
brNote that if you subscribe to a Service via an Apple iTunes account or a Google Play account, you must manage your subscription and cancel directly through those services, respectively. While the terms of subscription are generally similar to that described above, please refer to the applicable Apple or Google subscription terms for the terms applicable to your subscription, including specific renewal terms and when and how to cancel a subscription.
We may offer to certain qualifying users paid subscriptions on a free trial basis (“Free Trial”) for a specified period of time. If we offer you a Free Trial, the specific terms of your Free Trial will be provided at signup and/or in the promotional materials describing the Free Trial and your use of the Free Trial is subject to your compliance with such specific terms. Certain limitations may exist with respect to combining free trials with any other offers. Except as may otherwise be provided in the specific terms for the Free Trial offer, Free Trials are only available to users who have not previously held a paid subscription. When you agree to a Free Trial, you are also agreeing to sign up for a paid subscription as described above and, consequently, unless you cancel your subscription prior to the end of your Free Trial, we (or our third party payment processor) will begin charging your payment method on a recurring monthly basis for the applicable monthly fee (plus any applicable taxes and other charges) at the end of the Free Trial until you cancel your subscription. Please note that you will not receive a notice from Tastemade that your Free Trial has ended and that payment for your subscription is due. If you wish to avoid charges to your Payment Method, you must cancel your subscription prior to midnight Eastern Time on the last day of your Free Trial period. Instructions for cancelling your subscription are stated in the section above titled “Ongoing Subscription and Cancellation”. To the extent subscriptions are offered in conjunction with purchase of, or payment for, third party products or services, you agree that Tastemade will not be liable to you for any claims arising out of or related to your purchase or use of such third party products or services.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at [email protected]. If you provide us any Feedback, you grant us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services, or any individual element within the Services, Tastemade’s name, any Tastemade trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Tastemade’s express written consent.
- Access, tamper with or use non-public areas of the Services, Tastemade’s computer systems or the technical delivery systems of Tastemade’s providers;
- Attempt to probe, scan, or test the vulnerability of any Tastemade system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tastemade or any of Tastemade’s providers or any other third party (including another user) to protect the Services or Content.
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Tastemade or other generally available third party web browsers.
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
- Use any meta tags or other hidden text or metadata utilizing a Tastemade trademark, logo, URL or product name without Tastemade’s express written consent.
- Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms.
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information.
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content.
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services or Apps from other users of the Services without their express permission.
- Impersonate or misrepresent your affiliation with any person or entity.
- Violate any applicable law or regulation.
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to, or use of, the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We reserve the right to suspend and/or terminate your account and your access to and use of the Services if we determine, in our sole discretion, that your User Content is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Tastemade respects copyright law and expects its users to do the same. It is Tastemade’s policy to terminate, in appropriate circumstances, account holders or subscribers who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Tastemade’s Copyright and IP Policy for further information.
LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Services and Apps may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
EXPORT CONTROL AND RESTRICTED COUNTRIES
You may not use, export, re-export, import or transfer any App except as authorized by United States law, the laws of the jurisdiction in which you obtained such App and any other applicable laws. In particular, but without limitation, no Apps may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Apps and Services, you 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. You also will not use the Apps and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
We may suspend and/or terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending an email to us at [email protected]. If you want to cancel a subscription for a paid Service, please see the “Paid Subscriptions” section above. Upon any termination, suspension, discontinuation or cancellation of Services or your account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability and dispute resolution provisions.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Tastemade and its officers, directors, stockholders, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your User Content; or (iii) your violation of these Terms.
LIMITATION OF LIABILITY
NEITHER TASTEMADE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TASTEMADE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL TASTEMADE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO TASTEMADE FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO TASTEMADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TASTEMADE AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
You and Tastemade agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an“IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Tastemade with written notice of your desire to do so by email at [email protected] or mail at 3019 Olympic Blvd., Stage C, Santa Monica, CA 90404, Attn: General Counsel, within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Tastemade with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Tastemade with an Arbitration Opt-out Notice, will be the state and federal courts located in the Central District of California in Los Angeles, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Tastemade with an Arbitration Opt-out Notice,you acknowledge and agree that you and Tastemade are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Tastemade 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.
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/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
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 Arbitrationhere) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of 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.
ARBITRATION LOCATION AND PROCEDURE
Unless you and Tastemade 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 the documents that you and Tastemade 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.
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 of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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. Tastemade will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
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 $75,000, Tastemade 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)).
Notwithstanding the provisions of the “Changes to Terms” section above, if Tastemade changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Tastemade’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Tastemade in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Tastemade and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Tastemade and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by a court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Tastemade’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Tastemade may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Tastemade under these Terms, including those regarding modifications to these Terms, will be given by Tastemade via email or provided through the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted, and for notices made through the Services, the date of access of the Services with such notice will be deemed the date on which such notice is transmitted.
Tastemade’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Tastemade. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services please contact Tastemade at Tastemade, Inc., 3019 Olympic Blvd, Stage C, Santa Monica, CA 90404, or via e-mail at [email protected]