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Terms and Conditions

Effective: May 1, 2020

Stockthefreezer, LLC (“Stockthefreezer” “we,” “our,” or “us”) owns and operates certain websites, including, without limitation, https://stockthefreezer.com and its subdomains, any mobile, tablet and other smart device applications (to the extent available), and /or other online platforms (collectively, the “Platform”) and all associated services as further described herein (collectively, the “Services”); in each case, that reference these Terms of Use. As used in these Terms of Use (this “Agreement”), “you” means any visitor, user, or other person who accesses our Platform or Services; whether or not such person is registered for an Account (as defined below).

This Agreement constitutes a contract between you and Stockthefreezer that governs your access and use of the Platform and Services. By accessing and/or using the Platform or our Services, or by clicking a button or checking a box marked “I Agree” (or something substantially similar thereto), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the Platform or Services. The Platform is made available solely for your personal, non-commercial use.

We may change this Agreement from time to time and without prior notice (“Updated Terms”). If we make a change to this Agreement, it will be effective as soon as we post it and the most current version of this Agreement will always be posted under the “Terms of Use” link available on our Platform. If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the Platform and/or Services after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you will stop using the Platform and/or accessing the Services. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event which gave rise to the dispute.

In addition to the terms set forth herein, your use of the Platform is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Platform that we may post or link to on the Platform (collectively, the “Additional Terms”), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions, or content on the Platform. All such Additional Terms are hereby incorporated into this Agreement by reference.

PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH STOCKTHEFREEZER THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND STOCKTHEFREEZER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST STOCKTHEFREEZER. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

 

  1. OUR SERVICES

Stockthefreezer is a virtual marketplace to place orders for certain frozen food and/or other goods from various restaurants and businesses (collectively, “Restaurants”) through its online Platform.

Stockthefreezer is not a restaurant or food preparation entity, and all Restaurants available on our Platform operate independently from Stockthefreezer. Stockthefreezer is not liable or responsible for any Restaurants’ food preparation or safety, does not verify their compliance with any applicable laws, and does not guarantee the quality of what the Restaurants sell. Stockthefreezer is not a delivery company or a common carrier. Stockthefreezer does not guarantee the services provided by any Restaurant, including, without limitation, where, or if, any Restaurant provides the delivery services. Stockthefreezer does not independently verify, and is not liable for, representations made by Restaurants regarding their food, including, without limitation, any Restaurant-level descriptors or disclosures.

 

  1. CREATING AN ACCOUNT

You may only create and hold one account on the Platform (an “Account”) for your personal use. In consideration of the use of the Platform and the Services, you agree that you are able to create a binding legal obligation with Stockthefreezer, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete. If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Platform, and your parent or legal guardian must read and agree to this Agreement prior to your using the Platform. Notwithstanding the foregoing, you are not authorized to use the Platform or otherwise access the Services if you are under the age of 13. If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company. If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if Stockthefreezer has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Stockthefreezer has the right to block your current or future use of the Platform and/or the Services (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits, or other promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.

You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, other third party login information. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify Stockthefreezer of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. Stockthefreezer will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.

 

  1. PAYMENT AND OUR CREDIT POLICY

Certain features of the Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments, including commissions or other fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by Stockthefreezer. Stockthefreezer, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.

Stockthefreezer will charge, and you authorize Stockthefreezer to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, Stockthefreezer may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase.

Stockthefreezer reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for restaurant food and beverage items. Stockthefreezer may also, in its sole discretion, make certain promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing or by telephone.

 

  1. STOCKTHEFREEZER MATERIALS AND LICENSES

With the exception of User Content (defined below), the Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the “Materials”) is owned by or licensed to Stockthefreezer. The Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to Stockthefreezer. Please also be advised that Stockthefreezer enforces its intellectual property rights to the fullest extent of the law.

Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any additional terms contained on the Platform. Any other use of the Platform is strictly prohibited. Nothing contained on the Platform and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the Platform without the express written permission of Stockthefreezer or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by Stockthefreezer.

 

  1. YOUR CONDUCT ON THE PLATFORM

By accessing the Platform or the Services, you agree:

  • to comply with the Agreement and all applicable laws, rules and regulations in connection with your use of the Platform and Services, including, without limitation, laws regarding online conduct and User Content (as defined below);
  • not to use the Platform or Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
  • not to access the Platform or Services using a third party’s account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
  • not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by Stockthefreezer to protect the Platform;
  • not to use the Platform or Services in any manner that could damage, disable, overburden, and/or impair the Platform;
  • not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Platform;
  • not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Platform or Materials;
  • not to create Restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Platform;
  • not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from your use of the Platform;
  • not to harass, annoy, intimidate, or threaten any Stockthefreezer employees, contractors, or agents engaged in providing any portion of the Services;
  • not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of User Content (as defined below) or from any portion of the Platform or the Services;
  • not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Platform and its Services; and
  • not to disrupt, interfere with, or otherwise harm or violate the security of the Platform, or any Services, system resources, accounts, passwords, servers or networks connected to or accessible through the Platform or affiliated or linked sites (including, without limitation, those of our Restaurant).

You agree to comply with the above conduct requirements, and agree not to assist or permit any person in engaging in any conduct that does not comply with the above conduct. Further, you agree that the consequences of commercial use or re-publication of User Content or Materials from the Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that Stockthefreezer will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.

 

  1. CONTENT YOU PROVIDE

 

  1. You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to Stockthefreezer through the Platform or otherwise in connection with your use of our Services, including, without limitation, information and materials provided or made available in connection with any third party login (“User Content”). User Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a Stockthefreezer member, textual, visual, or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.

 

  1. You grant Stockthefreezer an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with Stockthefreezer’s or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented. All uses of such User Content will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, if you provide any suggestions, input, or other feedback relating to the Platform or the Services we provide (collectively, the “Feedback”), Stockthefreezer shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant Stockthefreezer a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.

 

  1. By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform. We expect your cooperation in upholding our standards. You are responsible for all of User Content. You agree that User Content will not:
  • be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;
  • have a commercial, political, or religious purpose;
  • be false, misleading, and/or not written in good faith;
  • infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
  • be illegal and/or promote illegal activity;
  • contain unauthorized advertising and/or solicits users to a business other than those on the Platform; and/or
  • be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Platform or other websites.
  1. You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose Stockthefreezer and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to User Content, or for any damages you allege to incur as a result of or relating to any third-party content.

 

  1. The Platform may allow you to rate (each, a “Rating”) and post reviews (each, a “Review”) of Restaurants. Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement. Ratings and Reviews are not endorsed by Stockthefreezer, and do not represent the views of Stockthefreezer. Stockthefreezer does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Platform may be removed or excluded by us without notice.

If any of User Content or conduct on our Platform violates our standards, or any other terms of this Agreement; or interferes with other peoples’ enjoyment of the Materials or our Platform or Services; or is inappropriate in our judgment; we reserve the right, in our sole discretion and without notice to you, (i) to change, delete or remove, in part or in full, any of User Content, and (ii) to terminate or suspend access to all or any part of our Platform. Stockthefreezer will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with User Content.

 

  1. COMMUNICATIONS & TEXT MESSAGES

By voluntarily providing your e-mail, cell phone number, or other contact information to Stockthefreezer, you agree that Stockthefreezer and any Restaurant with which you place an order may contact you by e-mail, telephone, SMS, MMS, or other means of electronic communication using the information you have provided, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand and consent that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving notices from Stockthefreezer by sending a request to Stockthefreezer using the contact information below or otherwise by communicated to you by Stockthefreezer.

If you unsubscribe from receiving text messages from Stockthefreezer through the process described above, you may continue to receive text messages for a short period while Stockthefreezer processes your request(s). If you change or deactivate the phone number or e-mail you provided to Stockthefreezer, you have an affirmative obligation to update your account information and the phone number(s) and e-mail address(es) attached to your account. Any new phone number(s) or e-mail address(es) you attach to your account may receive Stockthefreezer’s standard e-mail, SMS or MMS messages unless you also unsubscribe via the above procedures. Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages.

  1. ALCOHOLIC BEVERAGES.

Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age. Upon delivery or pickup, as applicable, you shall present a government-issued identification card, evidencing your age, consistent with applicable legal requirements. You also agree that Restaurants may withhold delivery of the alcoholic beverages if you appear or the recipient appears intoxicated when receiving such products. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you may forfeit the cost of such beverages.

 

  1. THIRD PARTY WEBSITES.

The Platform may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”). We do not review, monitor, operate and/or control the Third Party Websites and we make no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. Stockthefreezer reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.

 

  1. ADDITIONAL TERMS FOR MOBILE APPLICATIONS

We may make available software to access Stockthefreezer’s Platform via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. Stockthefreezer does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Stockthefreezer hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that Stockthefreezer may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications.

 

  1. DISCLAIMER

THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. STOCKTHEFREEZER DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. STOCKTHEFREEZER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY OR PICKUP ORDERED ON THE PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED OR PROVIDED.

STOCKTHEFREEZER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND STOCKTHEFREEZER’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STOCKTHEFREEZER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

STOCKTHEFREEZER RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. STOCKTHEFREEZER DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THE PLATFORM OR THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.

 

  1. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL STOCKTHEFREEZER BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF WHETHER OR NOT STOCKTHEFREEZER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY STOCKTHEFREEZER. STOCKTHEFREEZER ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. STOCKTHEFREEZER ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL STOCKTHEFREEZER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO STOCKTHEFREEZER OR A RESTAURANT, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.

YOU AND STOCKTHEFREEZER AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND STOCKTHEFREEZER AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES.

IMPORTANT NOTE TO NEW JERSEY CONSUMERS

IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THESE TERMS OF USE DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE NEW YORK GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).

 

  1. PRIVACY POLICY

The terms and conditions of the Privacy Policy are incorporated into this Agreement by reference. By accepting the terms of this Agreement, you hereby agree to the terms set forth in our Privacy Policy.

 

  1. TERMINATION AND VIOLATIONS OF THE AGREEMENT

Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, Stockthefreezer reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Platform and/or Services offered on or through the Platform (or any part thereof), including but not limited to the Platform’s features, look and feel, and functional elements and related Services. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Platform and Services provided herein.

Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Platform and Services; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Content You Provide;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”

You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.

 

  1. GOVERNING LAW

You acknowledge and agree that your access to and/or use of the Platform, the Services, the Materials, and other content on the Platform is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.

 

  1. DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH STOCKTHEFREEZER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 17 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

 

  1. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Stockthefreezer may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). You and Stockthefreezer agree that this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted after the effective date of this Agreement. BY ACCEPTING THESE TERMS OF USE YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH STOCKTHEFREEZER, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST STOCKTHEFREEZER IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
  2. Arbitration Rules and Forum.Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be resolved by final and binding arbitration.  The arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by the arbitral tribunal. The place of arbitration shall be Buffalo, New York. The language of the arbitration shall be English. The claimant shall commence the arbitration by delivering a notice of arbitration to the respondent setting out the nature of the claim(s) and the relief requested. Within thirty (30) days of the receipt of the notice of arbitration, the respondent shall deliver to the claimant its answer and any counterclaim(s), setting out the nature of such counterclaims(s) and the relief requested. The tribunal shall consist of one (1) arbitrator appointed by Stockthefreezer. Any challenge of an arbitrator for lack of impartiality or other ground shall be decided by the American Arbitration Association. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law. The tribunal shall decide the procedures to be followed in the arbitration after consultation with the parties. The tribunal shall have the power to grant any provisional or final remedy or relief that it deems appropriate, including conservatory measures and an award of attorneys’ fees.
  3. YOU AND STOCKTHEFREEZER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Stockthefreezer are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
  4. YOU AND STOCKTHEFREEZER AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Stockthefreezer is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court in accordance with the terms of this Agreement.
  5. This Arbitration Agreement will survive any termination of your relationship with Stockthefreezer.
  6. Notwithstanding any provision in the Agreement to the contrary, we agree that if Stockthefreezer makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

 

  1. LITIGATION CLASS ACTION WAIVER

To the extent allowed by applicable law, separate and apart from the Arbitration Agreement, you agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and you further not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). You further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

  1. WAIVER AND SEVERABILITY

Any waiver by Stockthefreezer of any term of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.

 

  1. ENTIRE AGREEMENT

This Agreement, together with any amendments and any additional agreements you may enter into with Stockthefreezer in connection with the Platform and the Services hereunder, shall constitute the entire agreement between you and Stockthefreezer concerning the Platform and the Services hereunder.

 

  1. CONTACT

If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.

 

 

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