BY ACCESSING THE PLATFORM, OR BY ORDERING, RECEIVING OR USING ANY MEAL KIT INGREDIENTS OR OTHER PRODUCTS OR SERVICES OFFERED BY SMG THROUGH THE PLATFORM (collectively, “Products”), YOU AGREE TO BE BOUND BY THESE TERMS WITHOUT ANY MODIFICATION. DO NOT ACCESS THE PLATFORM OR ORDER, RECEIVE OR USE PRODUCTS THROUGH THE PLATFORM IN ANY WAY IF YOU DO NOT AGREE TO THESE TERMS. IF YOU ARE ACCESSING AND USING THE PLATFORM OR ORDERING, REEIVING OR USING ANY PRODUCTS ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND SUCH ENTITY TO THESE TERMS.
IMPORTANT NOTICE: YOUR USE OF THE PLATFORM OR ORDER, RECEIPT OR USE OF ANY PRODUCTS IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 12, REQUIRING ALL CLAIMS TO BE RESOLVED VIA INDIVIDUAL BINDING ARBITRATION.
SMG may change or modify these Terms at any time in our sole discretion. If we make changes to these Terms, we will post the updated Terms on the Platform and modify the “Last Updated” date at the beginning of these Terms. Other than updating the date at the top of these Terms, we are not obligated to provide you with notice of any changes, but reserve the right to do so. Unless otherwise stated in the amended version of these Terms, any changes to these Terms will apply immediately upon posting. By continuing to access or use the Platform or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. You should review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Platform or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Platform or order, receive or use the Products.
The Platform is not targeted toward or intended for use by anyone under the age of 18. By using the Platform, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Platform, or engaged in any activity that could result in suspension or removal from the Platform, (d) have not created or do not have more than one SMG account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
SMG reserves the right, with or without notice, to terminate your account or refuse to provide Products to you if you (a) violate these Terms, (b) violate any third party’s intellectual property, privacy or publicity rights, (c) abuse other users of the Platform, (d) misuse the Platform, or (e) otherwise engage in inappropriate conduct, in each case, as determined by SMG in its sole discretion.
To access and use certain areas or features of the Platform, you will need to register for an account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Platform on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Platform or your account. You further understand and agree that SMG may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your account.
By creating an account, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Platform). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
By providing your mobile phone number to us through the Platform or in connection with your order, receipt or use of our Product(s), you consent to receive calls or text messages at any such phone number sent by or on behalf of SMG, including autodialed calls and/or text messages, for marketing, promotional, operational or transactional purposes, such as updates on the delivery status of your order of our Product. You may opt out of marketing and promotional calls or messages by following the applicable unsubscribe instructions provided to you. Following such opt-out, you may continue to receive calls or messages for a short period of time while SMG processes your request. It is your responsibility to keep your account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. Please contact your mobile phone carrier for details.
The Platform will identify cooking events that will be streamed on our Platform. We also may email or text you about upcoming cooking events that we are offering. Each event will be listed with a time and date, along with a deadline for registration. If you would like to view the cooking event and participate remotely in the meal preparation, you will need to register for the applicable event through the Platform before the registration deadline.
Each event will have a specific menu of ingredients. No substitutions for ingredients are available although we will do our best to accommodate food allergies and sensitivities. The Platform will identify all applicable ingredients. You are responsible for determining whether you have any dietary restriction or food allergy or sensitivity and for sharing this information with us.
After you register for an event, the applicable meal kit containing the ingredients will be sent to the delivery address you provide. Note: we currently are unable to deliver meal kits to all locations. The Platform will inform you if you are in a location that is ineligible for delivery of a meal kit. You are responsible to ensure that you are present to receive delivery of the meal kit. Upon receipt of the meal kit, you are responsible for the proper storage and care of the ingredients prior to usage, including storing ingredients at the correct temperature.
You will be provided an applicable registration code or link to view the cooking event. At the designated time, you should go to the Platform, launch your event and enter your registration code or click the event link. The guest chef will demonstrate how to prepare the meal using the ingredients in the meal kit. You can participate at your location by following the steps and instructions provided by the chef. You are responsible for furnishing all cooking utensils, appliances, containers, kitchenware and other items necessary to prepare the food, and you are responsible to ensure proper and safe use of all such items.
PLEASE NOTE: PREPARING FOOD CAN RESULT IN CUTS, BURNS AND OTHER INJURIES. YOU SHOULD USE ALL UTENSILS, APPLIANCES AND OTHER DEVICES IN ACCORDANCE WITH THE MANUFACTURER’S INSTRUCTIONS. SHARP ITEMS SUCH AS KNIVES AND BLADES ON FOOD PROCESSORS SHOULD BE HANDLED WITH EXTREME CARE. BE CERTAIN THAT POTS, PANS, DISHES, CONTAINERS AND OTHER KITCHEN ITEMS ARE CLEAN AND SAFE FOR THE MANNER IN WHICH YOU ARE USING THEM. NOT ALL ITEMS ARE MICROWAVE-SAFE; PLEASE ONLY PLACE ITEMS IN THE MICROWAVE THAT ARE SAFE FOR MICROWAVE USE. NOT ALL POTS, PANS OR SERVING-WARE CAN BE PLACED IN AN OVEN OR ON A STOVE BURNER. BE CERTAIN THAT THE ITEMS YOU ARE USING ARE SAFE TO BE PLACED IN AN OVEN OR ON A STOVE BURNER. USE CAUTION WHEN OPENING THE OVEN OR CONTAINERS THAT HAVE BEEN HEATED, AS HEAT OR STEAM MAY BE RELEASED AND CAUSE BURNS. IF YOU ARE COOKING WITH A GAS STOVE OR RANGE, BEWARE THAT FLAMMABLE OBJECTS CAN CATCH FIRE WHEN NEAR A FLAME. HOT OIL, BUTTER OR SAUCES CAN SPLATTER OR SPILL AND CAUSE BURNS. FOOD ITEMS CAN CAUSE STAINS ON CLOTHING; USE CAUTION WHEN MOVING, POURING OR PLATING ANY FOOD TO AVOID SPLATTERS OR SPILLS. DO NOT PLACE ANY HOT FOOD OR HOT OIL IN A GARBAGE CAN AS IT MAY CAUSE A FIRE. IF YOU ARE INJURED SEEK IMMEDIATE MEDICAL ATTENTION AND CALL 911 IF IT IS A MEDICAL EMERGENCY. BE SURE YOU KNOW HOW TO RESPOND IN THE EVENT OF A KITCHEN FIRE. The U.S. Consumer Product Safety Commission provide tips for fire prevention and recommendations for putting out a kitchen fire at this website: https://www.cpsc.gov/safety-education/safety-guides/home-fire/recipe-safer-cooking.
All prices on our Platform are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice, including without limitation, as based on geographic or other criteria as we may establish from time to time; provided, however, that if we change the amounts or other charges associated with our Products, we will provide advance notice of such changes. We will not be able to notify you of changes in any applicable taxes.
All Products are subject to availability. We reserve the right to reject all or part of an order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients or entire meals) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at email@example.com or call (888) 518-5274.
We will collect applicable sales, use and other tax (collectively, "Tax") on Products shipped to jurisdictions for which we determine we have a duty to collect Tax applicable to your purchase. If an item is subject to Tax, you agree that the amount of Tax shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in applicable Tax rates.
You agree to pay any additional shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third party courier. When you purchase a Product from our Platform, any shipping times shown are estimates only. Actual delivery dates may vary.
All Products purchased from us are made pursuant to a shipment contract. This means that when you purchase a Product that is fulfilled by one of our third party fulfillment partners, title to and the risk of loss of such Product passes to you upon the fulfillment partner’s delivery of such Product to the third party courier, and when you purchase a Product that is fulfilled by us title to and the risk of loss of such Product passes to you upon the third party courier’s delivery of such Product to you.
You are responsible for inspecting all Products for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. We recommend that you use a thermometer to ensure that the internal temperature of any meat, poultry or seafood Product is 40° F or below. In the unlikely event that such temperature is above 40° F, or you have any other reason to believe that any other Product in your delivery or purchase is not suitable for consumption, contact us at firstname.lastname@example.org or call (888) 518-5274. and discard the item. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery or purchase and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. We recommend that you follow the USDA’s instructions on safe food handling, which can be found here. We also recommend that you use a food thermometer to ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here.
If you are not at home when your meal delivery arrives, the courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. Our meal ingredients may be packaged with insulated liners and gel packs and will typically remain cold and fresh for several hours, but depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for immediate and proper storage of your meal ingredients prior to consumption. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your order, we will attempt to deliver your order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. If timely delivery of your meal ingredients is not feasible, we may cancel your meal kit delivery for the period so affected and issue you a credit or refund of the purchase price for that meal delivery.
You are not permitted to resell or otherwise use the Products for commercial purposes.
If you are dissatisfied with a meal or meal ingredient ordered on our Platform for any reason, please contact us at email@example.com within 48 hours of the date you received the meal. Depending on the circumstances, we may, in our sole discretion, replace the meal kit at our expense, provide you a full or partial refund of the purchase price for that meal kit, or provide you with credits for that meal kit, as applicable.
We may require the return or photographic documentation of any Product that you are dissatisfied with before we provide you a refund, replacement, or credit.
In certain circumstances, such as if we want to thank you for your patience with a delayed delivery or to address another customer service issue, we may provide you customer experience credits of promotional value that will be automatically applied to your next eligible order. Credits are promotional in nature, are not transferable, and are not redeemable for cash or other property.
Credits only remain available if you maintain a valid SMG account. That means that if you cancel your SMG account, any outstanding credits associated with your cancelled SMG account will immediately expire. All decisions regarding your credit balance will be determined in our sole discretion and are final.
As between you and SMG, (a) all Platform content (not including User Content), including the Platform design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Platform, (b) all videos, images, audio and animations on the Platform, (c) all rights to the names, images and likenesses of any chef or other person appearing on the Platform, whether in photos or in any live streaming or recorded events, classes or promotions (collectively, “SMG Content”) are owned by or licensed to SMG and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Subject to the rights expressly granted in these Terms, SMG reserves all rights in and to the Platform and the SMG Content. “Sizzle Media Group,” the SMG logo and any other SMG Product names, logos or slogans that may appear on the Platform or Products are trademarks of SMG and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Platform or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
Subject to your compliance with these Terms, SMG grants you a non-exclusive, non-transferable, revocable right to access and make personal use of the Platform and to view the SMG Content on the Platform. No part of the Platform or SMG Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use. Your access to the Platform is provided on a temporary basis with no guarantee for future availability.
In addition to complying with other terms and conditions applicable to your use of the Platform, and viewing of the SMG Content you agree that when using the Platform and viewing the SMG Content, you will not:
In order to protect the integrity of the Platform, SMG reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Platform. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by SMG to limit, restrict, or prevent access to the Platform.
Any unauthorized use of the Platform or SMG Content may also violate applicable laws or the rights of third parties.
Nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of SMG or any third party, whether by estoppel, implication or otherwise.
Notwithstanding anything to the contrary in these Terms, the Platform and SMG Content may include software components provided by SMG or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
There may be times when the Platform is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Platform will always be available or is completely free of human or technological errors. You must provide the equipment and Internet connections necessary to access the Platform at your own expense. We do not guarantee that the Platform will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.
The Platform may include features that allow you to upload, submit, or send content (e.g., user reviews, ratings, photos, or comments) (“User Content”) to the Platform or to third-party platforms (e.g., social media such as Facebook, Instagram, etc.).
This Section provides the terms and conditions governing your use of such features on the Platform. If you share User Content to any third-party platforms, you also will be bound by the terms and conditions applicable to those third-party platforms (including the privacy policies for such third-party platforms), and you should read and be sure you understand the applicable terms and conditions for such third-party platforms. SMG has no responsibility to you regarding your use of any third-party platform or your decision to share User Content to any third-party platform.
You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively “Post”) through the Platform and once Posted, it cannot always be withdrawn. If you decide to Post User Content to the Platform or to third-party platforms, you understand that your User Content will be viewable by others.
You agree not to Post through the Platform any User Content which is false, defamatory, infringes upon a third party’s intellectual property, or is otherwise illegal. By Posting User Content on the Platform, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.
By submitting User Content to the Platform, you grant, and represent and warrant that you have the right to grant, SMG a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform User Content in all media now known or hereafter created without attribution for any purpose. You hereby waive all moral rights to User Content.
You agree that you will not use the Platform to send, Post, or publish:
Your User Content is your sole responsibility and you assume all risks associated with your Posted User Content. Under no circumstances will we be liable in any way for User Content or for any loss or damage of any kind incurred as a result of the use of any of User Content. SMG further reserves the right (but does not undertake the obligation) to monitor, delete or modify any User Content that it deems offensive, inappropriate, advertising, illegal, off-topic or which otherwise violates these Terms.
As provided in 47 U.S.C. § 230(c)(1), SMG is only a distributer, and not the publisher or speaker, of any User Content. As such, SMG cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the Platform are those of their respective authors alone. SMG does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will SMG be responsible for any loss or damage resulting from any person’s reliance on any User Content.
Subject to Section 7 below regarding the DMCA, SMG reserves the right to remove or not remove any User Content from the Platform for any reason or no reason at all, in SMG’s sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. SMG reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
We welcome your comments regarding the Platform, SMG Content, and our services. In addition to the license you grant to us, above, for User Content, if you elect to provide or make available to us any suggestions, comments, ideas, improvements, or other information or materials in connection with or related to the Platform, SMG Content or our services (including any related technology) (collectively, “Suggestions”), whether you send such Suggestions to us through the Platform or through a separate communication channel and regardless of whether you mark or identify such Suggestions as confidential or proprietary, you hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Suggestions to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Suggestions in any manner. Do not send us any Suggestions if you do not wish to grant us the rights set forth in this paragraph.
SMG respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). Anyone who believes that their work has been reproduced on the Platform in a way that constitutes copyright infringement may notify SMG’s designated copyright agent in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information:
Notifications of claimed infringement should be forwarded to SMG’s designated agent as follows:
Name of Designated Agent: Carrie Paul
After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification. If you posted or submitted material to SMG which SMG removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to SMG’s designated agent listed above:
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in 10 to 14 business days after our designated agent’s receipt of the counter-notification, at our sole discretion.
SMG reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
The Platform may use or provide access to the websites of one or more third parties to process payments, process account or user registrations, or provide other services. Your interactions with any of these third parties is controlled by the terms and conditions imposed by those third parties. Any disputes arising regarding a third party’s services must be resolved directly between you and the third party. SMG disclaims all warranties or representations regarding any third-party services. SMG, in its sole discretion, and without notice to you or any user, may subcontract any services related to the Platform to be performed by a third party.
SMG makes no claim or representation regarding the quality, content, nature or reliability of third-party websites accessible by hyperlink from our Platform. Such third-party websites are not under SMG’s control and such hyperlinks are provided solely as a convenience. The inclusion of any link on our Platform to a third-party website does not and shall not be deemed to imply our endorsement of any third-party website or service. When you leave the Platform, these Terms do not govern your use of any third-party website or service. When you access a third-party website, you are subject to the privacy and data gathering practices of such third party, and you should read and understand the privacy policies and practices of such third party.
TheTo the fullest extent permitted by applicable law, you agree to indemnify and hold harmless SMG, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “SMG Parties”), from and against all actual or alleged SMG Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Platform or Products by you or any third party you allow to access or use such Platform or Products, (b) any User Content you create, post, share or store on or through the Platform or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify SMG of any third party Claims, cooperate with the SMG Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the SMG Parties shall have control of the defense or settlement of any third party Claims.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE PLATFORM, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR PLATFORM, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE PLATFORM DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE PLATFORM MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE PLATFORM DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE PLATFORM AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SMG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PLATFORM, SMG CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE PLATFORM OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all SMG Content and to modify, suspend or stop providing access to the Platform (or any features or functionality of the Platform) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SMG PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE PLATFORM OR SMG CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY WEBSITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY SMG PARTY, OR FROM EVENTS BEYOND THE SMG PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SMG PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SMG PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM SMG EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF MEAL INGREDIENTS, OR ACCESS OR USE OF THE PLATFORM OR SMG CONTENT, EXCEED THE GREATER OF $100 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE SMG PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE SMG PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH SMG PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SMG AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 5 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and SMG agree (a) to waive your and SMG’s respective rights to have any and all Disputes arising from or related to these Terms, or the Platform, SMG Content or Products, or User Content, resolved in a court, and (b) to waive your and SMG’s respective rights to a jury trial. Instead, you and SMG agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
You and SMG agree that any Dispute arising out of or related to these Terms or the Platform, SMG Content or Products, or User Content, is personal to you and SMG and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and SMG agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and SMG agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
You and SMG agree that these Terms affect interstate commerce and that the enforceability of this Section 12 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
You and SMG agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to SMG shall be sent by certified mail or courier to: Attn: World Chef C/O SMG 10866 Washington Blvd, #1111, Culver City, Ca 90232. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your SMG account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and SMG cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or SMG may, as appropriate and in accordance with this Section 12, commence an arbitration proceeding or, to the extent specifically provided for in Section 12.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 5 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND SMG AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR SMG WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND SMG WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and SMG agree that (a) any arbitration will occur in the State of California, County of Los Angeles, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Los Angeles, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 12 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 12 will remain valid and enforceable. Further, the waivers set forth in Section 12.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 12 by writing to: Attn: World Chef C/O SMG 10866 Washington Blvd, #1111, Culver City, Ca 9023. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 13.
These Terms, your access to and use of the Platform and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Los Angeles.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Platform and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your SMG account:Sections 2, 6, and 9-17.
These Terms constitute the entire agreement between you and SMG relating to your access to and use of the Platform and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of SMG. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and SMG’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.