Josephine Terms of Service
Last Revised: 2/8/2016
The following Terms of Service constitute a contract between you and Josephine, are legally binding and therefore affect your rights. THEY CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES YOU AND JOSEPHINE TO ARBITRATE ANY AND ALL DISPUTES THAT ARISE BETWEEN US. PLEASE READ THESE TERMS CAREFULLY AND DO NOT USE JOSEPHINE.COM IF YOU DO NOT AGREE TO THEM.
Welcome to Josephine.com, a website operated by Josephine, Inc. (“Josephine,” “us,” and “we”). Josephine is a marketplace platform that connects users looking for home cooked food (the “Guests”) with cooks who wish to sell meals (the “Cooks”) (the “Services”). The Site lists the available upcoming meals (each an “Event”), including information about the Cook, the meal and pick-up instructions. However, by using the site as a Guest, you understand that Cooks are ultimately responsible for all Event information posted on the Site, and the ultimate safety and legality of their Events. As a Guest you are responsible for any information you post using the platform and you must comply with our Community Guidelines.
Table of Contents:
- HOW THE SERVICE WORKS
- JOSEPHINE'S LEGAL DISCLAIMERS
- THE SITE AND SERVICES
- USER CONTENT
- ACCEPTABLE USE POLICY
- COPYRIGHT POLICY
- TERM AND TERMINATION
- DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION
- MISCELLANEOUS PROVISIONS
THESE TERMS SET FORTH LEGALLY BINDING TERMS AND GOVERN YOUR ACCESS TO AND ALL USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THESE TERMS AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THE TERMS. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.
NOTE REGARDING DISPUTE RESOLUTION: THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN US. BY ACCEPTING THESE TERMS, YOU GIVE UP YOUR RIGHT TO SUE IN COURT AND FURTHER GIVE UP YOUR RIGHT TO SUE ON BEHALF OF A CLASS,THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Certain features of the Site or Services may be subject to additional terms which will be posted on the Site or Services in connection with such features. All such additional terms are incorporated by reference into these Terms. In the event of a conflict between the additional terms and any provision in these Terms, the additional terms will prevail, but only with respect to the Service to which the additional terms apply. Use of the Site is also governed by Our Community Guidelines, which are incorporated into these Terms and therefore become a part thereof by this reference.
The Nuts and Bolts: How the Services Work
Josephine is an online platform or marketplace that connects Guests with Cooks so that they can arrange for the purchase of home cooked meals. Through the platform, Guests and Cooks book Events directly with each other. Josephine does not create, provide, own or operate the Events or the private homes where Events take place. Unless expressly stated otherwise within these Terms of Service, Josephine's responsibilities are limited to: (i) making the Site and its Services available and (ii) serving as the limited payment collection agent of each Cook for the purpose of accepting payments from Guests on behalf of the Cook.
- Cook Applications: Content. As a Cook, you determine the terms upon which your Event will be provided. You will submit an application to us that contains: (i) content and images that provide biographical information about you and a description of your meals and proposed Events, (ii) the price to be paid for the meals and (iii) all applicable policies, restrictions and contractual arrangements (e.g., cancellation policies and liability waivers required for all Guests) applicable to the Event and Guests (collectively, "Rules"). Submitting an application is in no way binding on Josephine, Josephine is not obligated to accept your application or any of its contents, nor is Josephine obligated to promote your Events.
- Acceptance of Application. If we accept your application, you authorize us to post information about your Event, including: (i) your name, images, and biographical information, (ii) a description of the Event and (iii) the price you have set, on the Services. We may also promote you and your Events using the content you have provided, using any method and medium that we deem appropriate, including through e-mail, mobile applications andany other distribution channel owned, affiliated, controlled or operated by Josephine. Josephine may promote your Event to Josephine customers and potential customers based on geographic or other geolocational data, but will determine the customers and potential customers to whom your Event is actually promoted and made available, if any, in its sole discretion. Cooks are solely responsible for the Event, all content they provide regarding Events and any and all interaction with Guests.
- Guest Bookings. Josephine provides a platform through which Guests can elect to purchase meals from Cooks and participate in Events. As a Guest, you understand that Josephine's only role is to facilitate communications between Cooks and Guests for the purpose of Bookings and it's not responsible for content provided to the Site by Cooks or any aspect of the Event itself.
- Cook Commitments. By participating as a Cook, you represent and warrant: (i) that the information you submit to us or post on the Services regarding your meals and Event is true and accurate; (ii) that you will make the meals and Events available to Guests in accordance with the information you provide and at the times and locations specified; (iii) that you have obtained and will maintain all necessary certifications and licenses and that you comply with all legal requirements, including but not limited to all applicable laws and industry standards (including business licenses, applicable food handling requirements, fire codes, zoning requirements, any required health and safety inspections and, to the extent applicable, the collection and remittance of sales taxes); (iv) that you will provide the Event without imposing restrictions or policies not listed in the Rules; (v) that you will not accept any gratuity or require additional payments not listed on the Site and Services; and (vi) that you will not solicit users to participate in an Event off the platform or otherwise circumvent any fees that are paid or would be payable to Josephine. You further agree that unless you obtain the express written consent of any Guest, you will use any contact information that the Guest provides to you only to communicate with the Guest about your Event and for no other purpose.
- Guest Commitments. By participating as a Guest, you represent and warrant: (i) that you will comply with the Rules; (ii) not solicit Cooks or other Guests for any commercial, religious or other reasons; (iii) arrive on time and at the stated location to purchase the meals and attend the Event and (iv) pay the agreed upon price for the meals. You, as a Guest, agree and acknowledge that, to the extent stated in the Rules, Cooks, in their sole discretion, reserve the right to refuse participation in an Event without refund, including to provide a meal, if you violate any of the Rules.
- Relationship between Guests and Cooks. Guests understand that Cooks prepare and provide meals in their private home kitchens and all Events are run out of private home kitchens. Josephine does not control the quality, safety, or legality of Events,(including the meals, the ability of Cooks to provide meals, or the ability of Guests to pay for Events. If you are a Guest, you provide to each Cook the covenants provided to Josephine in Sections 1(e). If you are a Cook, you provide to each Guest the covenants provided to Josephine in Section 1(d). Guests and Cooks each acknowledge that the other is a third party beneficiary of this Agreement, but solely with respect to those provisions.
JOSEPHINE'S LEGAL DISCLAIMERS
- Compliance with Laws. As noted above, Cooks are solely responsible for compliance with all applicable laws, rules, regulations and local ordinances, including without limitation, obtaining necessary permits and/or licenses, including business licenses, alcohol licenses and any other applicable license, compliance with fire codes, zoning ordinances and any required or applicable health and safety rules, regulations or inspections (collectively, “Regulations”), collection and payment of any applicable taxes or other payments that may be applicable to Events. Josephine makes no representation relating to and does not offer any opinion, recommendation, or advice regarding the legality of, tax implications and liabilities of, or any licenses, permits or other consents that may be necessary to provide any Event. Should you have any questions regarding laws or regulations applicable to providing meals or Events or regarding r consents/applications/licenses necessary to provide any meal or Event, you should consult your own legal counsel. You further agree that you, as a Cook, are solely responsible for your Events and agree to indemnify, defend and hold harmless Josephine from any claims, suits, losses, damages, costs and expenses (including reasonable attorneys' fees) relating to or arising from your Events, including any violation of any Regulations, or other taxes and payments which may be applicable to your Event.
- No Identity Verification by Josephine. You acknowledge and understand that Josephine does not attempt to confirm, and does not confirm, any user's (whether Cook or Guest) purported identity. We do not investigate any user's reputation, conduct, morality, criminal background or verify the information that any user submits to the Site. We do not endorse any persons who use or register for the Services, whether as Guests or Cooks. You are responsible for determining the identity and suitability of others whom you may contact or who may contact you by means of the Site. You agree to exercise caution and good judgment in all interactions with other users. Josephine encourages you to communicate directly with others through the tools available on the Site and to review your Cooks' profile pages for feedback from other users. You may also wish to consider using a third-party service that provides additional user verification.
Release of Liability and Hold Harmless. To the extent permitted under applicable laws, you hereby release Josephine from any liability related to:
(i) any incorrect or inaccurate Content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or
programming associated with or utilized in the Services; (ii) the conduct, whether online or offline, of any Cook or Guest; (iii) any injury, loss
or damage caused by another user, an Event, any meal, or Content posted on the Services, whether online or offline; and (iv) any error, omission,
interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or
alteration of, the Services' users' communications. If you are a California resident, you hereby waive California Civil Code Section 1542, which
states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the
release, which, if known by him must have materially affected his settlement with the debtor."
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND SERVICES AND ANY CONTENT OR INFORMATION PROVIDED BY THE SITE OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND JOSEPHINE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES AND ANY CONTENT OR INFORMATION PROVIDED BY THE SITE OR SERVICES EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. JOSEPHINE DOES NOT WARRANT THAT THE SITE OR SERVICES OR ANY CONTENT PROVIDED BY THE SITE OR SERVICES, INCLUDING ANY USER CONTENT, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TYP OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY.
- Limitation on Liability. NEITHER JOSEPHINE, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR USE OF THE SITE OR SERVICES OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE SITE OR SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE. THE FOREGOING WILL APPLY EVEN IF JOSEPHINE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SITE OR SERVICES OR THESE TERMS YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SITE OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS') 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 FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN JOSEPHINE AND YOU.
THE SITE AND SERVICES
- Licenses. Subject to these Terms, Josephine grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal use. You consent to Josephine photographing and/or recording your participation in an Event (whether you are a Guests or a Cooks) and further agree that: (1) any such image, recording or video (collectively “Recording”) will be owned exclusively by Josephine; (2) to the extent that your name, likeness, biography and / or voice appears in any such Recording, you grant to Josephine an unrestricted, perpetual, worldwide right to use your Image as contained in the Recording in all media now known and later developed for any purpose, including for the purpose of promoting the Site and Services.
- Restrictions on Use. The rights granted to you in these Terms are subject to the following restrictions: (i) you will not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Site or Services; (ii) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iii) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such), and any such use is expressly unauthorized; (iv) you will not access the Site or Services in order to build or promote a similar or competitive website, application, or service; and (v) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services will be subject to the Terms. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Josephine makes no representation that the Site or Services are appropriate for use in locations other than the United States. Josephine reserves the right in its sole discretion to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice at any time for any reason. You agree that Josephine will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
- Ownership. Except with respect to your User Content (as defined below), you agree that (i) the Site and Services are and will remain the sole property of Josephine and is subject to protection under U.S. and foreign copyright laws and (ii) Josephine (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the Site and Services. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such Site or Services. The Josephine name, logo, and the product names associated with the Site or Services belong to Josephine (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Josephine (and its licensors, where applicable) reserves all rights not granted in this Agreement.
- Updates. As detailed further below, Josephine provides the Site and Services on an “AS-IS” basis. You agree that Josephine is not obligated to create or provide any support, corrections, maintenance, updates, upgrades, bug fixes, and/or enhancements of the Site or Services (each an “Update”). However, in the event Josephine decides to offer an Update, you agree that Josephine may amend these Terms in connection with such Update without specific notice to you other than a written notification upon order checkout (and a box you will have to check) and that your use of the Site or Services following such Update is conditioned upon your acceptance of any revised Terms. By using the Site or Services following an Update, you are representing that you have reviewed the then-current version of the Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by Josephine as of the date you use the Site or Services following such update.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us (“Feedback”) is at your own risk and that Josephine 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. You hereby grant to Josephine a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
- In General. In order to use certain aspects of the Services, you may have to register for an account with us (“Account”). To create an Account, you must provide certain information about yourself as prompted by the registration process on the Site. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Josephine of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Josephine cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not have more than one Account. You agree not to create an Account or use the Site or Services if you have been previously removed by us or banned from any of the Services. Josephine reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that Josephine will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof). Information on your profile will include information and content you provide and/or upload as well as information we collect from your account with social networking sites (each an “SNS”) (“Profile Information”). Josephine reserves the right in its sole discretion to remove Profile Information at any time for any reason. You agree that Josephine will not be liable to you or to any third party for such removal.
- Social Networking Sites. The Services may allow users to connect with various SNSs. By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting Josephine access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account (“SNS Content”) accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content (as defined below) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Josephine makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Josephine is not responsible for any SNS Content.
- Your User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services. You, and not Josephine, are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (as defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Josephine. Because you alone are responsible for your User Content (and not Josephine), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Josephine is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. Josephine has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that Josephine has no obligation to pre-screen User Content, although Josephine reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SITE AND SERVICES.
- License to User Content. You hereby grant, and you represent and warrant that you have the right to grant, to Josephine an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services and operating and providing the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
- Ownership. Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
- Content Provided by Other Parties. The Site and Services may contain User Content provided by other users or third parties. We are not responsible for and do not control such content. We have the right, but no obligation to review or monitor such content. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such contact at your own risk.
ACCEPTABLE USE POLICY.
The following sets forth Josephine's “Acceptable Use Policy”:
- In General. As a condition of use, you agree not to use the Site or Services for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third party) either (i) take any action or (ii) make available any User Content on or through the Site or Services that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another's privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (C) in violation of any laws, or obligations or restrictions imposed by any third party; (D) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (E) involves commercial activities and/or sales without Josephine's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (F) impersonates any person or entity, including any employee or representative of Josephine, or falsifies or misrepresents yourself or your affiliation with any person or entity; (G) interferes with or attempt to interfere with the proper functioning of the Site or Services or uses the Site or Services in any way not expressly permitted by the Terms; (H) harasses or interferes with another user's use and enjoyment of the Site or Services; (I) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent; (J) displays, mirrors, or frames the Site (K) attempts to engage in or engage in, any potentially harmful acts that are directed against the Site or Services, including but not limited to violating or attempting to violate any security features of the Site or Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Site or Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means.
- Community Interactions. The Site may include various areas that enable you to post information, provide feedback, recommendations, reviews, and comments, and otherwise interact with other users, either through postings or by interacting in real-time (the “Community Forums”). In connection with such Community Forums, you agree to abide by any rules that Josephine publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose. Although Josephine may from time to time review the Community Forums, you acknowledge and agree that Josephine is under no obligation to monitor or control, and will have no liability for, any information available via the Community Forums. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content. Josephine reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.
- Investigations. Josephine reserve the right (but has no obligation) to monitor or review the Site and Services and User Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
- Cook Compensation. The Site enables Cooks to connect with and provide food to Guests. Since each Cook is solely responsible for all out-of-pocket costs involved with each Event, the Site enables Cooks to set a per-portion price for their Event (a “Contribution”). Each Guest will pay the Contribution for such Event upon pickup. By reserving a serving in connection with an Event, you agree that your payment card or other payment means may be charged for the full amount of the Contribution upon pickup at the Event. A portion of your Contribution may be remitted to cover any Josephine fees, with the remainder to the Event Cook. Contributions are non-refundable.
- Josephine Fees. Joining the Site, creating an Account and creating and searching for Events are free. Josephine does, however, charge a fee to Cooks for using the Services. The fees Josephine charges Cooks are currently 10% of all sales revenue, which we may change from time to time. Changes to that schedules are effective after we provide you with at least thirty (30) days' notice by posting the changes on the Site. Josephine may choose to temporarily change the fees, waive the fees or offer discounts for the Services, promotional events or new services (“Discounts”), which may be subject to additional terms and conditions.
- Payment Information. All payment information that you provide in connection with the Services must be accurate, current and complete. By attending any Event, you authorize your payment card to be charged in accordance with this Section. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO PAY ANY CONTRIBUTION. You will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Josephine from any and all taxes, including sales tax, based on any payments made by you in connection with the Services.
- Mobile Text Message Terms. The following terms apply to everyone who signs up to receive one or more SMS or MMS message and/or messages from Josephine or sends us messages via SMS or MMS.
When you sign up for Josephine's SMS list or RSVP to an Event, you are expressly consenting to receive text messages on behalf of Josephine,
containing information about upcoming Events or Events that you have RSVPs to attend, in the following manner (the “Text Services”):
- If you are a Cook you will receive a text message notifying you each time a potential Guest RSVPs to attend one of your Events, including Guest details such as the number of servings requested.
- If you are a Guest or potential Guest, you will receive a text message notifying you of information regarding any Event to which you have RSVP's such as pickup information.
- If you signed up for our SMS list, you will receive text messages a couple times per week notifying you of upcoming Events.
- You may opt out of the Text Services at any time by texting the word STOP to [(510) 254-3222] from the enrolled mobile device. If you do that, you will receive one additional message confirming that you will no longer receive messages from Josephine regarding Events. If you need help with our Text Services, text the word HELP to [(510) 254-3222] or call [(510) 254-3222].
- We do not charge a fee for the Text Services; however, depending on your messaging plan, your mobile carrier may charge you for each message we send you or that you send us. It is your responsibility to know whether your carrier will charge you per-message costs (for instance, if you do not have an unlimited texting plan, or have exceeded your monthly quota of free messages). We assume no responsibility for charges incurred by your using the Text Services.
- The Text Services may not be available in all areas at all times. This means we may not be able to successfully transmit SMS/MMS messages to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier's service.
- Events. By Cooking or attending any Event, you agree to, and at all times during the Event will, comply with the Josephine's community guidelines (the “Code of Conduct”) available here and below. In the event you bring any companions with you to any Event (“Your Companions”), you agree that you will notify, and make Your Companions aware of the Code of Conduct and the Rules. You acknowledge and agree that you will be responsible for and will ensure that Your Companions, at all times during any Event, comply with the Code of Conduct and the Rules. You further acknowledge and agree that you, not Josephine, will be fully responsible and liable for all acts and omissions of Your Companions during any Event. As such you agree to indemnify, defend and hold harmless the Josephine, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (“Released Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) (“Claims”) relating to or arising out of your and/or Your Guests' alleged (i) breach or violation of any covenant, obligation or terms and conditions in these Terms or the Code of Conduct, (ii) negligence of misconduct, and/or (iii) violation of any applicable law during any Event. You further agree to indemnify, defend and hold harmless the Released Parties from and against any Claim made by Your Guest(s) arising out of or in connection with any Event, including any losses, personal injuries, death, or any other occurrence or event whatsoever. Notwithstanding the foregoing, you will have no indemnification obligation under this Section with respect to any Claims based upon or arising in whole or in part from the gross negligence or willful misconduct of Josephine.
- Indemnification. You agree to indemnify and hold the Released Parties harmless from any Claims relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Site or Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; (e) your interaction with any other user; or (f) your violation of any applicable laws, rules or regulations. Josephine reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Josephine in asserting any available defenses. You agree not to settle any matter without the prior written consent of Josephine. Josephine will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
Josephine respects the intellectual property of others and asks that users of our Site and Service do the same. In connection with our Site and Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) must be provided to our designated Copyright Agent:
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our services that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Josephine's Copyright Agent to receive DMCA takedown notices is Charley Wang, email@example.com, 1721 Broadway Oakland CA 94612. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
TERM AND TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. You may terminate your Account at any time, for any reason, by following the instructions on the Site. Josephine may, in its sole discretion, suspend your rights to use the Site and/or Services and/or suspend, disable, or delete your Account (or any part thereof) at any time for any reason. Upon termination of these Terms, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases; however, we reserve the right to continue to use your User Content. Josephine will not have any liability whatsoever to you for any termination of the Terms, including for termination of your Account or deletion of your User Content. All provisions of these Terms which by their nature should survive, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION.
PLEASE READ THIS SECTION CAREFULLY, IT AFFECTS YOUR RIGHTS
Except for a claim by Josephine of infringement or misappropriation of Josephine's intellectual property rights, any and all disputes between you and the Company are subject to mandatory arbitration. We anticipate that most disputes between us can be resolved informally by following the informal dispute resolution process set forth below. In the event that we cannot informally resolve a dispute, then you and Josephine agree to be bound by the agreement to resolve disputes through the binding arbitration process described in this Section. This agreement to arbitrate is intended to be interpreted broadly. The Federal Arbitration Act governs this agreement to arbitrate and the arbitrator, and not any state or federal court, has exclusive authority to resolve all disputes arising between us, including disputes regarding the scope, enforceability and/or applicability of this Agreement. This agreement to arbitrate governs all disputes between us that arise out of or relate to this agreement or the Services, regardless of whether they are based in contract, tort, statute or any other legal theory and expressly includes, but not limited to: (1) claims relating to advertising; (2) claims that arose before this Agreement or any prior agreement; (3) claims that arise after the termination of this Agreement; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class (“Disputes”)
The only Disputes that are not covered by this Section are: (1) small claims actions; (2) claims to enforce intellectual property rights; (3) claims arising out of or relating to unauthorized use of intellectual property, including but not limited to piracy or theft.
- Informal Dispute Resolution Procedure: Before initiating arbitration, you and Josephine agree to first make a good faith and reasonable attempt to informally resolve any Dispute. You and Josephine agree that informal dispute resolution procedures will begin by one party notifying the other in writing of the nature of the dispute. The written notice of dispute shall contain all information reasonably necessary to engage in good faith negotiations. Consumers invoking this section agree to provide information sufficient to identify the Josephine account at issue as well as the meal and cook at issue, if applicable. If Josephine invokes this procedure, then it agrees to provide contact information for Dispute Resolution as well as information sufficient to put the consumer on reasonable notice of the nature of the Dispute. The parties agree to negotiate in good faith for at least 30 days following the date of the written notice of dispute. If after that period, the Dispute is not resolved, either party may commence arbitration pursuant to the procedure set forth below. Notices of Dispute should be sent to 1721 Broadway Suite #201, Oakland, CA 94612
Procedure for Binding Arbitration. If the Dispute is not resolved upon expiration of the 30-day period set forth in paragraph 1, above, then either party may elect to commence binding arbitration. YOU AGREE AND UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND JOSEPHINE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY. Arbitration shall proceed as follows:
- Administration. Arbitration shall be administered by the American Arbitration Association and governed by its Commercial Arbitration Rules and, where applicable, the Supplementary Procedures for Consumer Related Disputes (“Rules”) as modified by this section.
- b. Payment of AAA Fees and Costs. AAA fees and costs. There are filing fees and other costs associated with AAA arbitration. Each party shall be responsible for his, her or its share of the AAA costs and fees as set forth in the AAA rules. In the event that you are unable to pay the AAA costs and fees and you notify Josephine in writing that you are unable to pay the filing and other associated AAA costs and fees, then Josephine will pay those costs on your behalf.
- c. Hearing Procedure. The arbitration will be conducted solely based on written submissions unless the amount in controversy exceeds $25,000 and the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- d. Location. If commenced by a consumer, the arbitration will take place in the county in which you reside at the time the arbitration is filed. If commenced by Josephine, the arbitration shall take place in the county in which you reside unless the amount in controversy exceeds $25,000. In that case, Josephine may elect to have the hearing in in Oakland, California.
- e. Class Action Waiver. YOU AND JOSEPHINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A REPRESENTATIVE OF ANY PURPORTED CLASS OR OTHER TYPE OF REPRESENTATIVE PROCEEDING. This waiver will apply regardless of the type of relief sought (monetary or injunctive) and any relief sought shall be applicable only to you in your individual capacity. No arbitration shall be joined with any other and no aggregate proof or other class action or representative procedure is allowed. Unless all parties agree otherwise, the arbitrator may not consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. Any injunctive relief awarded shall be limited to the extent necessary to resolve the individual Dispute. This arbitration agreement shall be null and void if this subdivision (e) is found to be unenforceable.
- f. Choice of law. The interpretation of this Agreement shall be governed by the Federal Arbitration Act and California substantive law. Any claim that arises out of or relates to the Services and that is subject to arbitration under this provision shall be governed exclusively by California law (including the law of the Ninth Circuit where applicable), without regard to a conflict of law analysis.
- g. Attorneys' fees and costs. If you are the prevailing party in any arbitration, then Josephine will reimburse you for your reasonable attorneys' fees, if any, incurred in prosecuting or defending arbitration under this section. This subdivision (g) does not include any attorneys' fees incurred in any court proceeding that is related to or arises out of the Dispute, including but not limited to fees incurred as a result of a motion to compel arbitration or any post-arbitration challenge to either the arbitration award or the arbitrator's authority that is brought in a state or federal court. Josephine will pay you 150% of any recovery you are awarded in arbitration up to $ 2,500 above the amount of your award.
- h. The applicable AAA Rules shall govern any and all aspects of the arbitration that are not otherwise provided for herein.
- Modifications to this Provision. Josephine may modify the provisions of this agreement to arbitrate at any time. However, (1) Josephine will provide written notice of modifications; (2) modifications will become effective 30 days after notice of them is provided; (3) Josephine will not enforce modifications to this agreement to arbitrate to arbitration proceedings pending at the time of the amendment unless all parties consent in writing to the amendment.
- Entire Agreement; Severability; Waiver. These Terms constitute the entire agreement between you and Josephine, and supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter hereof. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. No failure or delay by Josephine in exercising any right hereunder will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Successors; Assignment; Relationship of Parties. This Agreement is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms or your rights and obligations hereunder without Josephine's prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. Your relationship to Josephine is that of an independent contractor, and neither party is an agent or partner of the other.
- Governing Law and Jurisdiction; For non-arbitable claims, and to the maximum extent permitted by applicable law, the provisions of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to principles of conflicts of law. Each of the parties hereto irrevocably and unconditionally confirms and agrees that it is and shall continue to be (i) subject to the jurisdiction of the state courts of the State of California, and (ii) subject to service of process in the State of California. Each party hereto hereby irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction of any state court located in the State of California (the “California Courts”), for any actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated by this Agreement (and agrees not to commence any litigation relating thereto except in such courts), and (b) waives any objection to the laying of venue of any such litigation in the California Courts.
- Changes to the Terms. The Terms may be updated from time to time for any reason. We will notify you of any changes to our Terms by posting the new Terms here: josephine.com. After we make the change and we will change the “Last Revised” date above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
- Contact Information. Josephine's contact information for any end-user questions, complaints or claims with respect to the Site of Services is:
1721 Broadway, Oakland, CA, 94612