Terms and Conditions
Terms and Conditions:
Effective: September 9th, 2020
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND FINE DINE-IN DELIVERY SERVICE LTD. (“FINE DINE-IN DELIVERY SERVICE LTD,” “WE,” “US,” OR “OUR”). SECTION 11 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 11 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A CLAIMANT IN A REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 11 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
1. Acceptance of this Agreement
The Fine Dine-in provides an online marketplace connection, using web-based technology that connects you and other consumers and restaurants and/or other businesses. The Fine Dine-in software (the “Software”) permits consumers to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, the Fine Dine-in Software notifies us and Merchant [AS1] that a delivery and/or pickup opportunity is available and the Software facilitates completion of the pickup and/or delivery to the consumer. The Fine Dine-in is not a restaurant or food preparation business.
If you access the website located at http://www.fdi.delivery.com/, install or use Fine Dine-in’s mobile application, install or use any other Software supplied by Fine Dine-in, or access any information, function, or service available or enabled by Fine Dine-in (each, a “Service” and collectively, the “Services”), or complete the Fine Dine-in account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Fine Dine-in (the “Minimum Age”); and
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use Fine Dine-in’s Services.
Subject to Section 11 of this Agreement, Fine Dine-in reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
3. Additional Terms and Policies
By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Fine Dine-in’s http://www.fdi/privacy, which is incorporated in this Agreement by reference. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.
4. Rules and Prohibitions
By using the Services, you agree that:
(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Fine Dine-in employees, or our community.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
(c) You will only access the Services using means explicitly authorized by Fine Dine-in.
(d) You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance, annoyance or inconvenience.
(f) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, or user, unless Fine Dine-in has given you prior permission to do so in writing.
(g) You will not copy or distribute the Software or any content displayed through the Services, including Merchants’ (as defined below) menu content and reviews, for republication in any format or media.
(h) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that could damage, disable, overburden or impair any Fine Dine-in server, or the networks connected to any Fine Dine-in server.
(m) You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Fine Dine-in server.
(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Fine Dine-in may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You will not deep-link to the Fine Dine-in website or access the Fine Dine-in website 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 Fine Dine-in website or any content on the Fine Dine-in website.
(p) You will not conduct any systematic retrieval of data or other content from the Services.
(q) You will not try to harm other Users, Fine Dine-in, or the Services in any way whatsoever.
(r) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(s) You will not abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first time users.
(t) You will not attempt to undertake any of the foregoing.
5. Merchants Are Independent
You understand and agree that Fine Dine-in provides a technology platform connecting you with independent food service providers and others that provide the products offered through the Services (“Merchants”). You acknowledge and agree that Fine Dine-in does not itself prepare food and has no responsibility or liability for the acts or omissions of any Merchant. Fine Dine-in is not the retailer of any products offered by Merchants. Fine Dine-in provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery by us. Fine Dine-in will not assess or guarantee the suitability, legality or ability of any Merchant. You agree that Fine Dine-in is not responsible for the Merchants’ food preparation or the safety of the food, and does not verify Merchants’ compliance with applicable laws or regulations. Fine Dine-in has no responsibility or liability for acts or omissions by any Merchant.
You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location. You agree that Fine Dine-in holds title to or acquires any ownership interest in any goods that you order through the Services.
6. User Account
You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Fine Dine-in immediately. Fine Dine-in will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Fine Dine-in or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Fine Dine-in has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Fine Dine-in has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by Fine Dine-in, or if you have been previously banned from use of the Services.
7. User Content
(a) User Content. Fine Dine-in may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You hereby grant Fine Dine-in a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Fine Dine-in’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant Fine Dine-in a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Fine Dine-in herein shall survive termination of the Services or your account. Fine Dine-in reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or we consider to be objectionable for any reason. You agree that Fine Dine-in may monitor and/or delete your User Content (but does not assume the obligation) for any reason in Fine Dine-in’s sole discretion. Fine Dine-in may also access, read, preserve, and disclose any information as Fine Dine-in reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to User support requests, or (v) protect the rights, property or safety of Fine Dine-in, its users and the public.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Fine Dine-in through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Fine Dine-in has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Fine Dine-in a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Fine Dine-in and do not represent the views of Fine Dine-in or its affiliates. Fine Dine-in shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant or business; (ii) you will not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that Fine Dine-in’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Merchant or business; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.
8. Communications with Fine Dine-in
By creating a Fine Dine-in account, you electronically agree to accept and receive communications from Fine Dine-in or third parties providing services to Fine Dine-in including via email, text message, calls, and push notifications to the cellular telephone number you provided to Fine Dine-in. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Fine Dine-in and/or its affiliated companies, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing the Settings in your account. You may also opt-out of receiving text messages from Fine Dine-in by replying “STOP” from the mobile device receiving the messages.
9. Intellectual Property Ownership
Fine Dine-in alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Fine Dine-in. Fine Dine-in name Fine Dine-in logo, and the product names associated with the Software and Services are trademarks of Fine Dine-in or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
10. Payment Terms
(a) Prices. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) Fine Dine-in has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) Fine Dine-in reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than, if applicable, taxes based on Fine Dine-in’s income). Payment will be processed by Fine Dine-in, using the preferred payment method designated in your account.
(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Fine Dine-in has no obligation to provide refunds or credits, but may grant them, in each case in Fine Dine-in’s sole discretion.
(c) Promotional Offers and Credits. Fine Dine-in, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Fine Dine-in; (iii) are subject to the specific terms that Fine Dine-in establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; (v) are not valid for use after the date indicated in the offer or in Fine Dine-in’s Terms and Conditions for Promotional Offers and Credits. Fine Dine-in reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Fine Dine-in determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Fine Dine-in reserves the right to modify or cancel an offer at any time. Fine Dine-in may also offer gratuitous credits, which can be used for the Services. Any credit issued by Fine Dine-in is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.
In addition, the following terms and conditions to promotional offers and credits also apply:
1. To qualify for and receive any promotion and/or credit (collectively “Offer(s)”), you must meet the requirements indicated, as applicable, in the Offer, in the user’s Fine Dine-in account, and those listed in this Section 10. You must have a valid Fine Dine-in account with a valid form of accepted payment on file to take advantage of an Offer. Offer must be used when placing a order, but the Offer may not be applied if all conditions are not met after fulfillment of any order applying the Offer. Offers can only be redeemed for Fine Dine-in orders on fdi.deliver.com or on the Fine Dine-in app with the latest version, and within Fine Dine-in service areas and service hours. For Offers available only to new customers or new subscribers, as applicable, customers will be disqualified and will not be entitled to receive the Offer if Fine Dine-in has a record of their name, email, phone number, or credit card having being used for a prior Fine Dine-in order or being linked to an existing active or inactive Fine Dine-in account. All deliveries are subject to availability. Customers must be 18 or older to order alcohol. Offers are not transferable and may not be auctioned, traded, copied, transferred, bartered, modified or sold. Offers cannot be applied retroactively for prior purchases. Offers cannot be combined unless otherwise indicated. Void where restricted or prohibited by law. Let’s computer is the official date/time keeping device for all Offers. You are responsible for paying any applicable sales tax, if any, related to the use of an Offer; Fine Dine-in has no obligation for payment of any tax in conjunction with the distribution or use of any Offer.
2. Promotional codes (“promo codes”) will expire on the date indicated in the communication to you with the promo code; if no date is specified, the promo code will expire (a) for promo codes contained in mail or email, 30 days after the date the mail or email was sent and (b) for promo codes published in any form (including online), 30 days after the date on which it was last displayed to consumers. To use the promo code and apply it to an order, you should follow the instructions in the Offer. Promo codes for credits cannot be applied towards taxes, if applicable, or fees other than delivery fees (including but not limited to service fees, small order fees, and surge fees). Promo codes may be limited to a one-time use as indicated in the offer. One-time-use offers apply to charges associated with an order from a single merchant location only. Promo codes cannot be applied to the purchase of alcohol. Unless otherwise indicated in offer, all promo codes are limited to one per person.
3. Other fees (including but not limited to service fees, small order fees, and surge fees), any applicable taxes (if any), and gratuity still apply.
4. Discount codes cannot be applied toward the purchase of alcohol. Pickup discount codes are applicable only for pickup orders; pickup only available at participating merchants. Delivery discount codes are applicable only to delivery orders.
5. Fine Dine-in credits can only be redeemed for Fine Dine-in orders on fdi.deliver.com or on the Fine Dine-in app with the latest version, and within Fine Dine-in service areas and service hours. Credits cannot be applied towards alcohol purchases. Credits are applied toward order subtotals (excluding gratuity and alcohol purchases). Credits may not be applied with any other Offer.
(d) Fees for Services. Fine Dine-in may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees.
(e) Referral Program. Under the Fine Dine-in Referral Program (the “Referral Program”), Fine Dine-in offers its registered Users in good standing the opportunity to earn gratuitous Fine Dine-in credits as promotional rewards by inviting their eligible friends to register as new Fine Dine-in Users and place their initial order through the Service by using a unique referral ID link (“Personal Link”). For each qualified referral (subject to the terms herein) generated through a User’s Personal Link, the User may receive a gratuitous credit as specified on Fine Dine-in’s Referral Program page. You agree that we may change the terms and conditions of the Referral Program or terminate the Referral Program at any time.
In addition, the following terms and conditions to Fine Dine-in’s referral program also apply:
1. Existing customers ("Referrer") who refer friends and family as new customers ("Customer") to the Fine Dine-in platform, may be eligible to receive referral credits (“Credit(s)”). Customer must sign up using the unique link ("Link") provided to them by Referrer. The Link must be provided to Customer through email, text, or the Share Your Link option on the app. Referrer is prohibited from posting referral links on sites including, but not limited to Google, Ecaytrade, Twitter, Facebook, Instagram and other similar publicly accessible sites. Fine Dine-in reserves the right to deactivate or invalidate any Credits obtained through these channels.
2. Referrer will only receive Credits for the first 25 Customers they refer. Customer will receive one Credit when they sign up through the Link, are one of the 25 Customers, and meet the requirements as indicated in the offer. Fine Dine-in reserves the right to deactivate or invalidate any Credits obtained by either Customer or Referrer in excess of these amounts. Credit amounts will be stated in Referrer's Fine Dine-in account and in the offer received by Customer. Customer will be disqualified and will not receive Credits if Fine Dine-in determines that Customer has previously created a Fine Dine-in account. Fine Dine-in reserves the right to withhold or invalidate Credit obtained through the Referral Program if Fine Dine-in determines or believes that the Credit was received through error, fraudulent, illegal, or in violation of these terms and conditions or any other applicable agreement between you and Fine Dine-in.
3. Credits will be applied automatically at checkout to order amount (excluding gratuity). Credits cannot be applied to alcohol products. Credits can only be redeemed for Fine Dine-in orders on fdi.delivery.com or on the Fine Dine-in app with the latest version, and within Fine Dine-in service areas and delivery hours. Credits cannot be redeemed for cash or cash equivalent. Credits are not transferable and may not be auctioned, traded, bartered, or sold. Credits may not be used in conjunction with select promotions. Fine Dine-in reserves the right to withhold or invalidate Credit obtained through the Referral Program if Fine Dine-in determines or believes that the Credit was received through error, fraudulent, illegal, or in violation of these terms and conditions or any other applicable agreement between you and Fine Dine-in.
11. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE FINE DINE IN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 11 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
1. Scope of Arbitration Agreement. 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 small claims in Summary Court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-representative) basis; and (2) you or Fine Dine-in 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). 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. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CLAIMS MAY HAVE BEEN FILED AGAINST FINE DINE-IN—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLAIMS IN A REPRESENTATIVE ACTION, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH FINE DINE-IN, 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 FINE DINE-IN 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. Arbitration will be conducted by the Cayman Islands Association of Mediators and Arbitrators under its then-current arbitration rules and pursuant to the terms of this Agreement.
3. Arbitrator Powers. The arbitrator, and not any court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fine Dine-in. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Fine Dine-in.
4. Waiver of Class or Consolidated Actions; Severability. YOU AND FINE DINE-IN AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE 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 Fine Dine-in is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 22, and all other provisions of this Section 11 (Dispute Resolution) shall remain in force. If any provision of this Section 11 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 11.
5. Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Fine Dine-in can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Fine Dine-in in writing of your intention to opt out by sending a letter to: Fine Dine-in P.O. Box 30881, George Town, Cayman Islands. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fine Dine-in username (if any), the email address you used to set up your Fine Dine-in account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one Merchant, and letters that purport to opt out multiple Merchants will not be effective as to any. No Merchant (or his or her agent or representative) may effectuate opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
6. Survival. This Arbitration Agreement will survive any termination of your relationship with Fine Dine-in.
7. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Fine Dine-in 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 Fine Dine-in.
12. Third-Party Interactions.
(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, Fine Dine-in will not warn you that you have left Fine Dine-in’s website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Fine Dine-in. Fine Dine-in is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. Fine Dine-in does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Fine Dine-in and not with the App Store. Fine Dine-in, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
13. Social Media Guidelines.
Fine Dine-in maintains certain social media pages for the benefit of the Fine Dine-in community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by the following social media guidelines:
We ask that you refrain from posting comments that:
Contain comments, links, content, images or videos that are obscene, sexuality explicit, profane, vulgar, or hateful in nature and/or promote racism, sexism, hatred or harm against any person, organization or company.
• Contain comments that threaten any person, organization or company.
• Contain comments that defame, harass, or abuse any person.
• Contain successive off-topic posts by a single user.
• Contain or constitute spam.
• Contain comments, links, images or video that encourage illegal activity.
• Contain any materials that infringe upon the rights of any third party.
• Contain confidential or proprietary information of any person, organization or company.
• Contain false or misleading comments or claims about Fine Dine-in or its competitors.
Contain software viruses, Trojan horses, worms, time bombs, or any other computer code or files or disabling mechanisms that are designed to disrupt, damage, or limit the functioning of any software, hardware, telecommunications equipment, or that interfere with our operation.
You are responsible for your comments or posts. The opinions, statements, and viewpoints expressed by community members do not necessarily reflect the opinions of Fine Dine-in. As such, Fine Dine-in does not endorse and is not responsible for any user comments. By posting, you are promising us that your post complies with these guidelines and doesn’t contain any of the restricted content listed above. Please note, however, that we may remove any post that we believe does not so comply.
14. Transactions Involving Alcohol
You may have the option to request delivery of alcohol products in some locations and from certain Merchants. You agree that you will only order alcohol products if you are 18 years of age or older. You also agree that, upon delivery of alcohol products, you will provide us with valid government-issued identification proving your age and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that Fine Dine-in cannot accept your order of alcohol products, and the order will only be delivered if the Merchant accepts your order. Fine Dine-in reserves the right to refuse delivery if you are not 18 years of older, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated. If Fine Dine-in is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable re-stocking fee.
You agree to indemnify and hold harmless Fine Dine-in and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Fine Dine-in reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fine Dine-in in asserting any available defenses. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
16. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FINE DINE-IN MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
FINE DINE-IN DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, FINE DINE-IN SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
17. Internet Delays
18. Breach And Limitation of Liability
(a) General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section 18 to keep the Software and Services simple and efficient, and costs low, for all users.
(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW FINE DINE-IN AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO FINE DINE-IN IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW FINE DINE-IN SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE).
19. Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fine Dine-in agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the Cayman Islands.
If you violate this Agreement, Fine Dine-in may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, Fine Dine-in may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Fine Dine-in reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
21. Procedure for Making Claims of Copyright Infringement.
It is Fine Dine-in’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Fine Dine-in by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide us with the following information at firstname.lastname@example.org : (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Fine Dine-in or any third party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. This Agreement is governed by the laws of the Cayman Islands without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(d) Notice. Where Fine Dine-in requires that you provide an e-mail address, you are responsible for providing Fine Dine-in with your most current e-mail address. In the event that the last e-mail address you provided to Fine Dine-in is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Fine Dine-in’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fine Dine-in P.O. Box 30881, George Town, Cayman Islands.
(e) Electronic Communications. For contractual purposes, you (1) consent to receive communications from Fine Dine-in in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fine Dine-in provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current.
(f) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Fine Dine-in without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
(g) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.