These terms of use are entered into by and between You and PACIFIC CLOUD KITCHENS Technology Inc. and its affiliates (“PACIFIC CLOUD KITCHENS,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Use”), govern (i) your access to and use of our U.S. and Canadian websites, including any content, functionality, and services offered on or through our U.S. and Canadian websites (the “Websites”), whether as a guest or a registered user, (ii) your use of PACIFIC CLOUD KITCHENS’s mobile applications (each and collectively an “App”), and (ii) your use or receipt of any content, functionality, service, technology, good, or product provided to you by PACIFIC CLOUD KITCHENS (each a “Service” and collectively the “Service”). The Websites, App and Service are together referred to throughout these Terms of Use as the “Digital Services.”
IMPORTANT: THIS TERMS OF USE CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 20 BELOW AND WITH LIMITED EXCEPTIONS, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS, INCLUDING CLASS ACTION LAWSUITS, IN COURTS AND ONLY SPECIFIC REMEDIES ARE AVAILABLE TO YOU. Read more here.
This Terms of Use also contain additional terms that apply specifically to PACIFIC CLOUD KITCHENS Logistics Waitlist Services, such as PACIFIC CLOUD KITCHENS Q, and PACIFIC CLOUD KITCHENS Grocery and Meal Order and Delivery through Stock-Up Mart.
Please read the Terms of Use carefully before you start to use the Digital Services. By using the Digital Services, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at https://www.pacificcloudkitchens.com/privacy-policy/ (the “Privacy Policy”), incorporated herein by reference. Each time you access or use the Digital Services, you agree to be bound by the Terms of Use along with our Privacy Policy and any additional guidelines, terms, procedures or rules that may apply to a specific feature of the Digital Services. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Digital Services.
By using the Digital Services, you represent and warrant that you are of legal age to form a binding contract with PACIFIC CLOUD KITCHENS and meet all of the eligibility requirements in this Terms of Use. If you do not meet all of these requirements, you must not access or use the Digital Services.
1. Changes to the Terms of Use
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Digital Services thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Digital Services.
Your continued use of the Digital Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
2. Accessing the Digital Services, and Account Security
We reserve the right to withdraw or amend the Digital Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Digital Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Websites, or the entire Websites, or the Digital Services to users, including registered users.
You are responsible for:
· Making all arrangements necessary for you to have access to the Digital Services, and maintaining the accuracy of any information you submit to PACIFIC CLOUD KITCHENS in relation to your access and use of the Digital Services.
· Ensuring that all persons who access the Digital Services through your internet connection or device are aware of these Terms of Use and comply with them.
To access the Digital Services or some of the resources they offer, you may be asked to provide certain registration details or other information. It is a condition of your use of the Digital Services that all the information you provide on or through the Digital Services is correct, current, and complete. You agree that all information you provide to register for the Digital Services or otherwise, including, but not limited to, through the use of any interactive features on the Digital Services, is governed by the Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Digital Services or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.
3. Intellectual and other Property Rights
The Digital Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by PACIFIC CLOUD KITCHENS, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Use permit you to use the Digital Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Digital Services, except as follows:
· Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
· You may store files that are automatically cached by your Web browser for display enhancement purposes.
· You may print one copy of a reasonable number of pages of the Digital Services for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
· If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
· If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
· Modify copies of any materials from the Digital Services.
· Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
· Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Digital Services or any data or materials available to you in the Digital Services.
If you, directly or indirectly through yourself or a third party, print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Digital Services in breach of the Terms of Use, your right to use the Digital Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Digital Services or any content on the Digital Services is transferred to you, and all rights not expressly granted are reserved by the PACIFIC CLOUD KITCHENS. Any use of the Digital Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
4. Trademarks
The PACIFIC CLOUD KITCHENS name and all related names, logos, product and service names, designs, and slogans are trademarks of PACIFIC CLOUD KITCHENS or its affiliates or licensors. You must not use such marks without the prior written permission of PACIFIC CLOUD KITCHENS. All other names, logos, product and service names, designs, and slogans on the Digital Services are the trademarks of their respective owners.
5. Prohibited Uses
You may use the Digital Services only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Digital Services:
· In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
· For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
· To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
· To impersonate or attempt to impersonate PACIFIC CLOUD KITCHENS, a PACIFIC CLOUD KITCHENS employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
· To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Digital Services, or which, as determined by us, may harm the PACIFIC CLOUD KITCHENS or users of the Digital Services, or expose them to liability.
Additionally, you agree, directly or indirectly on your own or through a third party, not to:
· Use the Digital Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Digital Services, including their ability to engage in real time activities through the Digital Services.
· Deep-link to the Digital Services or access the Digital Services manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of the Digital Services or any content on the Digital Services.
· Use any manual process to monitor or copy any of the material on the Digital Services, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
· Conduct any systematic retrieval of data or other content from the Digital Services.
· Use any device, software, or routine that interferes with the proper working of the Digital Services.
· Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Digital Services, the server on which the Digital Services are stored, or any server, computer, or database connected to the Digital Services.
· Attack the Digital Services via a denial-of-service attack or a distributed denial-of-service attack.
· Otherwise attempt to interfere with the proper working of the Digital Services.
6. User Contributions
The Digital Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Digital Services.
All User Contributions must comply with the Content Standards set out in these Terms of Use.
Any User Contribution you post to the Digital Services will be considered non-confidential and non-proprietary. By providing any User Contribution on the Digital Services, you grant us and our affiliates and service providers, and each of their respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose according to your account settings.
You represent and warrant that:
· You own or control all rights in and to the User Contributions and have the right to grant the license granted above.
· All of your User Contributions do and will comply with these Terms of Use.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not PACIFIC CLOUD KITCHENS, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Digital Services.
7. Monitoring and Enforcement; Termination
We have the right to:
· Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
· Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Digital Services or the public, or could create liability for the PACIFIC CLOUD KITCHENS.
· Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
· Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Digital Services.
· Terminate or suspend your access to all or part of the Digital Services for any or no reason, including without limitation, any violation of these Terms of Use.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Digital Services. YOU WAIVE AND HOLD HARMLESS PACIFIC CLOUD KITCHENS (AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS), LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THEM DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER PACIFIC CLOUD KITCHENS OR LAW ENFORCEMENT AUTHORITIES.
However, we cannot review all material before it is posted on the Digital Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
8. Content Standards
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
· Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
· Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
· Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
· Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.
· Be likely to deceive any person.
· Promote any illegal activity, or advocate, promote, or assist any unlawful act.
· Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
· Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
· Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
· Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
9. Reliance on Information Posted
The information presented on or through the Digital Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. Information relating to food or beverages should not be used by you to evaluate ingredient information, nutritional values, or potential food allergies. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user or visitor to the Digital Services, or by anyone who may be informed of any of its contents.
This Digital Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by PACIFIC CLOUD KITCHENS, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of PACIFIC CLOUD KITCHENS. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
10. Changes to the Digital Services
We may update the content on the Digital Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Digital Services may be out of date at any given time, and we are under no obligation to update such material.
11. Information About You and Your Visits to the Digital Services
All information we collect on the Digital Services are subject to our Privacy Policy located at https://www.pacificcloudkitchens.com/privacy-policy/. By using the Digital Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. Please take a moment to review our Privacy Policy, which is incorporated into this Agreement and forms part of the Agreement.
12. Linking to the Websites and Social Media Features
You may link to our Website homepages, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.
The Digital Services may provide certain social media features that enable you to:
· Link from your own or certain third-party websites to certain content on the Digital Services.
· Send emails or other communications with certain content, or links to certain content, on the Digital Services.
· Cause limited portions of content on the Digital Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us. Subject to the foregoing, you must not:
· Establish a link from any website that is not owned by you.
· Cause the Digital Services or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
· Link to any part of the Websites other than the homepages.
· Otherwise take any action with respect to the materials on the Digital Services that is inconsistent with any other provision of these Terms of Use.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
13. Links from the Digital Services
If the Digital Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Digital Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
14. Geographic Restrictions
The owner of the Digital Services is based in the United States. We provide the Digital Services for use only by persons located in the United States and Canada. We make no claims that the Digital Services or any of their content is accessible or appropriate outside of the United States or Canada. Access to the Digital Services may not be legal by certain persons or in certain countries. If you access the Digital Services from outside the United States or Canada, you do so on your own initiative and are responsible for compliance with local laws.
15. Release
If you have a dispute with one or more users of the Digital Services (including partners), you release PACIFIC CLOUD KITCHENS, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors and agents, from any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees), actual and consequential, of every kind and nature, known and unknown, arising out of or relating to such disputes. In entering into this Release, you expressly waive any and all protections (whether statutory or otherwise) to the extent permitted by applicable law that would otherwise limit the coverage of this Release to include only those claims which you may know or suspect to exist in your favor at the time you agree to this Release. Accordingly, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
16. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Digital Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE DIGITAL SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THEM, OR ON ANY WEBSITE LINKED TO THEM.
YOUR USE OF THE DIGITAL SERVICES AND THEIR CONTENT IS AT YOUR OWN RISK. THE DIGITAL SERVICES AND THEIR CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PACIFIC CLOUD KITCHENS NOR ANY PERSON ASSOCIATED WITH PACIFIC CLOUD KITCHENS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE DIGITAL SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER PACIFIC CLOUD KITCHENS NOR ANYONE ASSOCIATED WITH PACIFIC CLOUD KITCHENS REPRESENTS OR WARRANTS THAT THE DIGITAL SERVICES AND THEIR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITES OR THE SERVERS THAT MAKE THE DIGITAL SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE DIGITAL SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, PACIFIC CLOUD KITCHENS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL PACIFIC CLOUD KITCHENS, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE DIGITAL SERVICES, ANY WEBSITES LINKED TO THEM, ANY CONTENT ON THE DIGITAL SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID PACIFIC CLOUD KITCHENS IN THE PRIOR TWELVE (12) MONTHS, IF ANY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT PACIFIC CLOUD KITCHENS’S SERVICE PROVIDERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. Indemnification
You agree to indemnify, and hold harmless PACIFIC CLOUD KITCHENS, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Digital Services, including, but not limited to, your User Contributions, any use of the Digital Services’ content, services and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Digital Services.
19. Governing Law and Jurisdiction
All matters relating to the Digital Services and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York, USA without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
20. Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND PACIFIC CLOUD KITCHENS CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND PACIFIC CLOUD KITCHENS TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
a. Agreement to Arbitrate. You and PACIFIC CLOUD KITCHENS mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for any “Covered Claims” (as defined below) that arise between you and PACIFIC CLOUD KITCHENS, its related and affiliated companies, and/or any current or former employee, officer, or director of PACIFIC CLOUD KITCHENS or any related or affiliated company. you and PACIFIC CLOUD KITCHENS agree that this Arbitration and Class Action Waiver Section is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even after these Terms of Use and any Digital Services terminate. Any revision to or termination of the Terms of Use that modify or terminate this Arbitration and Class Action Waiver Section shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.
b. Claims Subject to Arbitration. Other than the exceptions listed below, the “Covered Claims” include any and all controversies, disputes, disagreements, and claims arising out of, or relating to, these Terms of Use (including its enforcement, breach, performance, interpretation, validity, or termination), or your access to and/or use of the Digital Services, or the provision of content, services, and/or technology on or through the Websites, App or otherwise to the fullest extent allowed by law..
c. Claims Not Covered by Arbitration, Jurisdiction, and Venue. The Covered Claims do not include (and thus shall not require arbitration of) the following types of claims that will hereafter be referred to as “Excluded Claims”: (a) any claims that cannot be required to be arbitrated as a matter of law (including but not limited to claims by California residents under the California Private Attorney General Act of 2004 (“PAGA”), to the extent exclusion from arbitration is required by California law, and claims or charges that must be filed with a governmental administrative agency); (b) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including but not limited to those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (c) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction.
Any Excluded Claims arising out of, or related to, these Terms of Use or the Digital Services shall be instituted exclusively in the state and federal courts located in the City of New York and County of New York, New York, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
In the event you or PACIFIC CLOUD KITCHENS chooses to pursue arbitration of both Covered Claims and Excluded Claims and the other party objects, the Covered Claims must be arbitrated. In no event will Covered Claims be joined with Excluded Claims and litigated in court unless both parties agree to waive arbitration.
d. Class Action Waiver. Except as otherwise required under applicable law, you and PACIFIC CLOUD KITCHENS agree to arbitrate any Covered Claims only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, or collective proceeding (“Class Action Waiver”). No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms of Use may: (a) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (b) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (c) arbitrate any form of a class, collective, or representative proceeding.
e. Arbitrability Determinations. If a party violates the agreement to arbitrate by commencing an action asserting a Covered Claim in a court of law, then the court (and not an arbitrator) shall have the authority to resolve any disputes about the interpretation, formation, existence, enforceability, validity, and scope of the this Arbitration and Class Action Waiver Section. If a party complies with the agreement to arbitrate and files for arbitration without filing a complaint in a court of law, then the arbitrator shall have the authority to resolve any disputes about the interpretation of this Arbitration and Class Action Waiver Section for purposes of discovery or the merits of the underlying claim, but shall have no authority to resolve any disputes about the formation, existence, enforceability, or validity of this Arbitration and Class Action Waiver Section, including the Class Action Waiver.
f. Arbitration Rules, Procedures, and Costs. To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the representatives of the other party. You and PACIFIC CLOUD KITCHENS agree that the arbitration shall be administered by JAMS before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by JAMS. Except to the extent that they are modified by the rules below, if you are an individual person, the JAMS Streamlined Arbitration Rules & Procedures that are in effect at the time of the filing of the demand (and that are available at https://www.jamsadr.com/rules-streamlined-arbitration/) will apply. Except to the extent that they are modified by the rules below, if you are not an individual person, but are an entity or company, the JAMS Streamlined Arbitration Rules & Procedures that are in effect at the time of the filing of the demand (and that are available at https://www.jamsadr.com/rules-streamlined-arbitration/) will apply.
g. The parties agree that the applicable JAMS rules are modified as follows:
i. Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under New York law.
ii. No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.
iii. All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
iv. The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Covered Claim(s).
v. Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
vi. The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
vii. The Federal Rules of Evidence shall apply to all arbitration proceedings.
viii. For discovery purposes only, an arbitrator may consolidate claims filed by multiple individuals, each on their own behalf, in a single arbitration proceeding, or may conduct a joint hearing for efficiency purposes, so long as the arbitrator does not (a) certify (conditionally or otherwise) a collective, class, or representative action that includes individuals who have not themselves already submitted their own individual claims, or (b) authorize the issuance of notice of the arbitration to individuals on the grounds that the arbitrator or any party believes there are other individuals who are similarly situated to or share commonality with a party to the arbitration.
ix. The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
x. The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
xi. The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
xii. If you initiate arbitration, you will pay the first $250, and PACIFIC CLOUD KITCHENS will pay all other filing, administrative, or hearing fees. If you are an individual person and PACIFIC CLOUD KITCHENS initiates arbitration, PACIFIC CLOUD KITCHENS will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, you will remain responsible for your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that you may recover a certain amount of attorneys’ fees and costs.
If any term or condition in this Arbitration and Class Action Waiver Section is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed and the remainder of this Arbitration and Class Action Waiver Section shall not be affected. Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in the City of New York and County of New York, New York, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
21. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE DIGITAL SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
22. Waiver and Severability
No waiver by PACIFIC CLOUD KITCHENS of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of PACIFIC CLOUD KITCHENS to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
23. Entire Agreement
The Terms of Use, our Privacy Policy and any other relevant agreement to the Digital Services constitute the sole and entire agreement between you and PACIFIC CLOUD KITCHENS regarding the Digital Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Digital Services.
24. Additional Terms Applicable to Special PACIFIC CLOUD KITCHENS Digital Services
a. Logistics Waitlist Digital Services. Any use of the PACIFIC CLOUD KITCHENS logistics waitlist Digital Services (“PACIFIC CLOUD KITCHENS Logistics Waitlist Digital Services”), including PACIFIC CLOUD KITCHENS Q, is subject to the following additional terms:
i. General. You understand that certain PACIFIC CLOUD KITCHENS Logistics Waitlist Digital Services, such as PACIFIC CLOUD KITCHENSQ and other logistics services, may be utilized by third parties to facilitate the scheduling or organization of medical appointments. You further understand and agree that through the PACIFIC CLOUD KITCHENS Logistics Waitlist Digital Services or otherwise, we do not provide medical services nor are we involved in your medical care. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE, AND YOU AGREE NOT TO HOLD PACIFIC CLOUD KITCHENS LIABLE, FOR ANY INJURY, LOSS OR DAMAGE THAT MAY RESULT IN CONNECTION WITH MEDICAL SERVICES OR ANY TREATMENT YOU RECEIVE FOLLOWING YOUR USE OF THE DIGITAL SERVICES, INCLUDING BUT NOT LIMITED TO THE PACIFIC CLOUD KITCHENS LOGISTICS WAITLIST DIGITAL SERVICES.
b. Grocery and Meal Order and Delivery through Stock-Up Mart. Any use of the PACIFIC CLOUD KITCHENS grocery and meal delivery services (available at https://www.stockupmart.com/) (“PACIFIC CLOUD KITCHENS Grocery Services”) is subject to the following additional terms:
i. General. Once you have placed an order for PACIFIC CLOUD KITCHENS Grocery Services, we will send you an order acknowledgment by email setting out what you have ordered. This is not an order confirmation or acceptance from us. In addition to the price of goods, a delivery charge as shown at checkout, if applicable, will also be payable by you. All prices quoted are exclusive of tax and you will see estimated taxes and fees when you place the order. The final taxes and fees will be calculated on the day you place your order. Title to and risk of loss for the goods purchased by you passes to you upon delivery of the items to the delivery partner. Pricing for PACIFIC CLOUD KITCHENS Grocery Services and delivery charges may change from time to time at PACIFIC CLOUD KITCHENS’s sole discretion, but pricing and delivery charges will not change after your order has been placed.
ii. Minimum Order. Deliveries may be subject to a minimum order value, which may change from time to time at PACIFIC CLOUD KITCHENS’s sole discretion.
iii. Substitution Policy. If a good becomes unavailable when filling your order, PACIFIC CLOUD KITCHENS will not substitute the unavailable good for a similar available good, but rather will issue a refund for the unavailable good. In the event that such refund results in an order total below the minimum order threshold, the minimum order requirement will be waived for that order only.
iv. Quantity Limitations. PACIFIC CLOUD KITCHENS may, for any reason in its sole discretion, limit the quantity of any particular good ordered. This may be for inventory control or other reasons. Product availability is subject to the inventory on hand and may vary geographically or change without notice. We reserve the right to source the goods from any of our facilities in any location (or the facilities of any of our affiliated companies or partners in any location).
v. Delivery. PACIFIC CLOUD KITCHENS may use its own personal or third party partners for delivery of items ordered by you from the PACIFIC CLOUD KITCHENS Grocery Services. We will use reasonable efforts to deliver your goods within the time window you select, where available, or in the window provided to you when placing your order, but PACIFIC CLOUD KITCHENS does not guarantee that goods will be delivered on or by a certain date or time. PACIFIC CLOUD KITCHENS will not be liable for delivering the goods outside of the delivery time or failing to deliver all or any of the goods in your order. In the case of inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to our delivery schedule which will cause us to suspend or delay delivery dates and times.
vi. Batching. In the event you place more than one order through different PACIFIC CLOUD KITCHENS Digital Services, PACIFIC CLOUD KITCHENS may, at its sole discretion, choose to deliver all orders at the same time or may choose to deliver them separately. If PACIFIC CLOUD KITCHENS chooses to deliver multiple orders at the same time, you will not be refunded for any delivery fees incurred for individual orders.
vii. Receipt of Delivery. You agree to provide accurate and thorough information related to the delivery location. PACIFIC CLOUD KITCHENS shall not be liable for delivery to the wrong location or unfulfilled deliveries as a result of you providing PACIFIC CLOUD KITCHENS with incomplete or inaccurate delivery information. Unattended deliveries may be made in PACIFIC CLOUD KITCHENS’s sole discretion. If PACIFIC CLOUD KITCHENS elects unattended delivery, your order will be left unattended at your door or another similar location, or at another place designated by you where such ability for you to designate an alternative delivery location is available. PACIFIC CLOUD KITCHENS is not responsible, and you agree not to hold PACIFIC CLOUD KITCHENS liable in any way, for any damage, spoilage, or theft that occurs to an unattended delivery. We reserve the right to refuse to leave an order unattended if we consider the circumstances to be unsuitable or unsafe for any reason. Where delivery is made in-person, anyone who receives the delivery at the delivery address is conclusively presumed to be authorized to receive the delivery. Should PACIFIC CLOUD KITCHENS be unable to deliver your order for any reason, including finding nobody home at the time of our delivery or the unavailability or unsuitability of an unattended delivery location, you will have 24 hours to contact us at Talk2us@thoughtfulfeed.com regarding redelivery of your order, and you may be assessed a re-delivery fee if the order is redelivered. Your order is considered forfeited without refund after 24 hours from your delivery window if you have not contacted us to make alternate arrangements within that time frame.
viii. No Refunds. PACIFIC CLOUD KITCHENS does not offer refunds or credits for goods purchased and delivered. If items in your order were not delivered, or if delivered goods were defective, contact Talk2us@thoughtfulfeed.com, and please be prepared to show photographic evidence of such, if applicable.
ix. Promo Codes. Promotion codes (“Promo Codes”) are valid only for PACIFIC CLOUD KITCHENS Grocery Services orders, subject to the terms of this Section. Your use of a Promo Code indicates your agreement to be bound by these Terms of Use and any Promo Code terms on the promotion offer itself. PACIFIC CLOUD KITCHENS will only honor a Promo Code if it is used in accordance with all applicable terms. Promo Codes issued by PACIFIC CLOUD KITCHENS are, and will remain, the property of PACIFIC PACIFIC CLOUD KITCHENS and are not transferable, cannot be resold, and have no cash value unless otherwise stated. Use of a Promo Code may be subject to you providing proof of entitlement to use the Promo Code. Promo Code values may be adjusted if the total discount value is greater than the value of your order. PACIFIC CLOUD KITCHENS reserves the right to withdraw or cancel any Promo Code at any time, either as a whole, or for specific goods or delivery areas. If this happens, then the Promo Codes may not be used for any orders placed after the date of withdrawal or cancellation. We reserve the right to reject or cancel the use of a Promo Code where fraud or misuse is suspected. You will have no claim against PACIFIC CLOUD KITCHENS in connection with such rejection or cancellation of a Promo Code. PACIFIC CLOUD KITCHENS will not be liable to any customer or household for any financial loss arising out of the cancellation or withdrawal of any Promo Code or any failure or inability of a customer to use a Promo Code for any reason. Promo Codes may not be copied, reproduced, published, or distributed directly or indirectly in any form for use by anyone other than the original recipient. By using a Promo Code, you warrant that you are the duly authorized recipient of it. You may only use one Promo Code for each order unless otherwise stated on the applicable Promo Code. We will only honor PACIFIC CLOUD KITCHENS Promo Codes and no other promotion codes will be accepted in the PACIFIC CLOUD KITCHENS Grocery Services.
x. Gratuity. Gratuity is not automatically included in or added to orders. Gratuity can be given, at your discretion, in cash at the time your order is delivered.
xi. Product Information. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION, INCLUDING NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION YOU VIEW ON THE DIGITAL SERVICES AS ACCURATELY AND COMPLETELY AS POSSIBLE. HOWEVER, PACIFIC CLOUD KITCHENS DOES NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON.
xii. Additional Disclaimer & Allergy Information. YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE THROUGH THE PACIFIC CLOUD KITCHENS GROCERY SERVICES. PACIFIC CLOUD KITCHENS SHALL NOT BE RESPONSIBLE FOR NOTIFYING YOU OF PRODUCT RECALLS FOR ITEMS YOU HAVE PURCHASED THROUGH THE DIGITAL SERVICES. YOUR USE OF THE PACIFIC CLOUD KITCHENS GROCERY SERVICES AND ITS GOODS IS AT YOUR OWN RISK. THE PACIFIC CLOUD KITCHENS GROCERY SERVICES AND ITS GOODS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “PRESENT CONDITION” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PROVIDED BY LAW, PACIFIC CLOUD KITCHENS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND WHOLESOMENESS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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 PREPARE, 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. THE GOODS YOU RECEIVE MAY HAVE SOME OR ALL OF THE ALLERGENS LISTED. IF YOU HAVE AN ALLERGIC REACTION OR OTHER ADVERSE HEALTH EVENT, CONTACT YOUR HEALTH CARE PROVIDER IMMEDIATELY.
25. Contact Us
If you have any questions about this Agreement, you may contact us by email at privacy@pacficcloudkitchens.com.