LocalChefs (USA) Terms and Conditions
BY ACCEPTING THIS AGREEMENT, BY CLICKING "AGREE" BELOW, CHEF AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THATTHEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM "CHEF" SHALL REFERTO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THISAGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESETERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENTAND MAY NOT USE THE SERVICES.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED.INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.
Last updated: January 1, 2021
These LocalChefs Terms and Conditions ("Terms") are expressly incorporated as a clickable Form into LocalChefs App (the Form and these Terms, collectively, “Agreement”) between you (“you” or “Chef”) and InfiSolv Inc. (“InfiSolv” or “Company,” which is an owner and publisher LocalChefs App. This Agreement shall govern the provision of LocalChefs Services (as defined below) in the United States and its territories.
2.1 Items and Services
InfiSolv and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for culinary preparations (meals, dishes, beverages and other products, "Items") from Chef to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“LocalChefs Services”).
2.2 Chef Technology
In connection with the LocalChefs Services, InfiSolv and its affiliates may also make available to Chef a website, mobile application or other technology interface for Chef to access and use the LocalChefs Services (collectively, the "InfiSolv Tools"),which may include InfiSolv’s and its affiliates’ proprietary technology platform, through which insights and analytics regarding Chef’s performance and history using the LocalChefs Services are provided, and InfiSolv and its affiliates’ proprietary technology platform built into LocalChefs app, through which Chef may, among other things, receive, accept and fulfill requests for Items from Customers.
2.3 LocalChefs App
InfiSolv and its affiliates may also make available to Customers, its proprietary technology that enables Customers to purchase Items from Chef and communicate to Chef about such purchase ("LocalChefs App"). Logistics of delivery or pick up of Items is Chef's responsibility. At the minimum, Chef must provide a location where Customer can pick up ordered Items.
3. INFISOLV OBLIGATIONS
3.1 LocalChefs Services
Subject to the terms and conditions of this Agreement, InfiSolv and its affiliates will make available the applicable LocalChefs Services to Chef, solely for use by Chef at locations that are owned and operated by Chef (each, a "Location"), as set forth in the LocalChefs App. In connection with the provision of LocalChefs Services to Chef, InfiSolv and its affiliates, on behalf of Chef, may respond to complaints by Chef’s customers (“Customers”) about Items sold by Chef via the LocalChefs App. In addition, InfiSolv may make available certain InfiSolv Tools to Chef, and Chef may access and use those InfiSolv Tools solely in connection with Chef’s use of the LocalChefs Services. For the avoidance of doubt, as between Chef and InfiSolv, InfiSolv will retain sole and absolute control over the LocalChefs App and LocalChefs App (and all elements of the user experience and user interface relating to both apps), including with respect to: (i)the personalization of the LocalChefs App for Customers; (ii) the prioritization and display of options available to Customers; (iii)the search functionality and results provided to Customers; (iv) the order fees charged to Customers; and (v) adding, removing or otherwise modifying any feature or functionality made available through the LocalChefs App to optimize reliability or efficiency on the LocalChefs App.
3.2 Technology Services, Not Culinary or Delivery Services
For the sake of clarity, neither InfiSolv nor its affiliates provide any culinary or delivery services. Rather, InfiSolv provides technology services that enable Chef to connect with Customers who may purchase Items from Chef, to be delivered by Chef or picked up by Customer.
4. CHEF OBLIGATIONS
4.1 Availability of Items
Chef will make Items available for purchase through the LocalChefs App as per the schedule set by Chef in the app. Chef, when making changes to schedule set in the app, must honor purchase made by Customer prior to the change. Chef will prepare, handle and store all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety ("Food Safety Standards"). Chef will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Chef is responsible for ensuring that all Items meet the applicable Criteria. If Chef fails to prepare Items in accordance with Food Safety Standards or if any Item fails to meet the Criteria(each, a “Substandard Item”), InfiSolv may, in its sole discretion, remove such Item from the LocalChefs App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the LocalChefs App. Chef represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the LocalChefs App is, and at all times will remain, accurate. In addition, Chef will ensure that the contents of its menu (including any notifications about ingredients, nutritional information, allergen information, etc.) are accurate and comply with all applicable laws and regulations.
4.2 Item Responsibility
Chef acknowledges and agrees that InfiSolv does not take title to any Item at any time. Notwithstanding, Chef shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Chef’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Chef’s internal standards. InfiSolv may, in its sole discretion, deduct reimbursement costs from the payment InfiSolv remits to Chef in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Chef’s retail and food delivery license privileges.
In connection with the access to and use of the LocalChefs Services and InfiSolv Tools, Chef will not (and will not allow any third-party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the LocalChefs Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the InfiSolv Tools or LocalChefs Services (except as otherwise authorized by InfiSolv); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Chef will not (and will not allow any third party to) use the LocalChefs Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the LocalChefs App to directly or indirectly compete with InfiSolv or its affiliates or the LocalChefs Services. The following restricted Items may not be featured or sold via the LocalChefs App: people or animals of any size, illegal items, alcohol, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, Items containing endangered species or any items that Chef does not have permission to send.
5. FEES AND TAXES
5.1 Fees; Calculation
For Items sold by Chef via the LocalChefs App, InfiSolv will remit to Chef the total Retail Price collected for all Items Chef sells via the LocalChefs App (including any Sales Tax and other fees collected on its behalf) less: (a) the sales tax collected;(b) the applicable retained Fee; and (c) any refunds given to Customers (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Chef will be remitted within fourteen (14) business days of the sale of the Item. Subject to the foregoing, InfiSolv will typically make such payment on a weekly basis.
All Fees under this Agreement will be paid in U.S. Dollars. InfiSolv or its affiliates will deduct the Fee from the payment InfiSolv collects on Chef’s behalf, as detailed in Section 5.3 below. InfiSolv reserves the right to suspend Chef’s ability to make Items available for purchase by Customers through the LocalChefs App if Chef’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Partner is unable to complete the delivery of such Item. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.
5.2 Retail Prices
Chef is responsible for determining and setting the retail price for each Item to be made available for sale via the LocalChefs App ("Retail Price"). The Retail Price for each Item excludes Sales Tax or any other fees.
5.3 Sales Tax
LocalChefs App will determine all applicable Sales Tax for Item sold and collect the same from Customer. InfiSolv will remit collected sales tax to the appropriate state. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes. Chef expressly authorizes InfiSolv to make determination, collection and remittance of sale tax on its behalf.
5.3 Appointment of Limited Payment Collection Agent
InfiSolv will provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information InfiSolv is permitted to provide under applicable privacy laws and terms with Customers. to the extent applicable, Chef agrees that InfiSolv may share Chef’s transactional data regarding ordered meals, including sales data, with Chef’s parent company.
7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES
Subject to this Agreement, each party hereby grants to the other party (and, in the case of InfiSolv, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the LocalChefs Services. For purposes of this Agreement, the term "Marks" will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Chef’s Marks by InfiSolv or its affiliates in connection with making Items available through the LocalChefs App in the ordinary course of business will not require any such prior, express, written consent. Chef further agrees that any use or display of InfiSolv’s Marks will conform to the current version of Brand Guidelines of LocalChefs, which can be found at: https://localchefs.us/logo. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Chef represents and warrants that Chef’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Chef agrees that InfiSolv or its affiliates may remove Chef’s Marks from the LocalChefs App if InfiSolv or its affiliates receive notice or otherwise reasonably believe that such Chef’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
InfiSolv and its affiliates may showcase the availability of Chef’s Items via the LocalChefs App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). InfiSolv (or a party designated by InfiSolv acting on InfiSolv’s behalf) may take video and still images for marketing and other efforts related to the LocalChefs App ("LocalChefs Photographs"). Chef agrees that LocalChefs Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of InfiSolv or its affiliates. Additionally, Chef may provide videos, still image or other materials to InfiSolv or its affiliates (“Chef Marketing Materials”) for use in connection with the display of Chef’s Items on the LocalChefs App or the marketing and promotion of LocalChefs and the availability of your Items via the LocalChefs App. Chef hereby grants InfiSolv and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Chef Marketing Materials in connection with Chef’s Items and other promotional activities relating to the LocalChefs Services. Without limiting anything in the Agreement, Chef represents and warrants that the Chef Marketing Materials do not infringe, misappropriate, or otherwise violate any third-party’s intellectual property or other proprietary rights. To the extent that the Chef Marketing Materials contain any third party materials, Chef is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for InfiSolv to be able to use the Chef Marketing Materials in accordance with this Section. Chef agrees that InfiSolv or its affiliates may remove Chef Marketing Materials from the LocalChefs App if InfiSolv or its affiliates receive notice or otherwise reasonably believe that such Chef Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK
"Proprietary Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Chef’s Items to Customers through the LocalChefs App and the terms and conditions of this Agreement. Proprietary Information will not include information that:(i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Chef hereby authorizes InfiSolv and its Affiliates to disclose the terms of this Agreement to Chef’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Chef agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Chef will maintain the accuracy and integrity of any Personal Data provided by InfiSolv and in Chef’s possession, custody or control. Chef agrees to retain Personal Data provided to Chef by InfiSolv solely by using the software and tools provided by InfiSolv. "Personal Data" means any information obtained in connection with this Agreement (i)relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
Chef is responsible for maintaining the integrity of information related to Chef’s access and use of the InfiSolv Tools and related LocalChefs Services, including any password, login or key information. Chef represents and warrants that Chef will not share such information with any third party.
8.4 Data Re-Identification Restriction
Without limiting any other provision of this Agreement, including any provision in this Section 8, Chef will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Chef may, but is not obligated to, provide or otherwise make available to InfiSolv or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to InfiSolv’s and its affiliate’s products and services ("Feedback"). However, to the extent that Chef provides or otherwise makes available Feedback to InfiSolv or its affiliates, Chef hereby grants to InfiSolv and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
Chef acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the LocalChefs App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Chef and the relevant Item(s) on the LocalChefs App ("Customer Feedback"). InfiSolv and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of InfiSolv and its affiliates without attribution to or approval of Chef. Chef acknowledges that InfiSolv and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that InfiSolv and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or InfiSolv’s or its affiliates’ content policies.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
10.1 Representations and Warranties
Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying withor performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities here under (including all applicable consumer protection, data protection and privacy laws and, in the case of Chef, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Chef further represents and warrants that to the extent Chef has franchisees who participate in any activities under this Agreement, Chef will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11.1 Indemnified Claims
You ("Indemnifying Party") will indemnify, defend and hold harmless InfiSolv, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the InfiSolv Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Chef’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Chef’s failure to determine the applicable Sales Tax and other fees charged, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (C)Chef’s failure to apply correct sales tax rates, including those rates adjusted by InfiSolv on Chefs behalf, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (D) Chef’s failure to provide accurate descriptions of Items in Marketplace Facilitator Jurisdictions; or (E) Sales Tax, other fees, penalties, interest and other costs related to Chefs obligations, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of InfiSolv or its employees, agents or Delivery Partners.
We will provide you a prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
12. LIMITS OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OFCONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BELIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF CHEF OR ANY THIRDPARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY,EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACHAND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
13. TERM AND TERMINATION
This Agreement will commence on the Effective Date (date of acceptance of this agreement by clicking on "AGREE") and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date ("Initial Term") and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving seven (7) days’ prior written notice of termination to the other party. Chef may terminate this Agreement using LocalChefs App as well. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, InfiSolv may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Chef that, in InfiSolv’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1,3.3, 7.1, 8-13, this last sentence of 13, 14-15 and 17 will survive the expiration or termination of this Agreement.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to InfiSolv should be provided to InfiSolv, Inc, Attn: Legal, 4010 Moorpark Ave, San Jose, CA 95117. Notices to Chef should be provided to the address provided by Chef using LocalChefs App.
15. DISPUTE RESOLUTION AND ARBITRATION
Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the "JAMS Rules"), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator(“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:
i) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.
ii) The seat, or legal place, of arbitration will be San Jose, California, USA or the JAMS location closest to the complaining party’s place of business.
iii) The language to be used in the arbitral proceedings will be English.
iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.
v) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.
viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses plus and expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
ix) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
x) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
15.2 Waiver of Jury Trial
Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.
16. DIVERSITY AND INCLUSION
Chef will not, in its use of the LocalChefs Services or the InfiSolv Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that, programs may target beneficial services for specific participant groups, as agreed upon between InfiSolv and Chef. Chef acknowledges and agrees that upon InfiSolv’s receipt of evidence of Chef’s discrimination under any of these categories, InfiSolv will have the right to immediately terminate this Agreement following notice to Chef.
The territory of this Agreement is the United States("Territory"), and all payments issued under this Agreement must be in U.S. dollars. Chef agrees to receive calls, SMS messages and other communications, including those made available by auto-dialer, sent by or on behalf of InfiSolv or its affiliates. In this Agreement, “**including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. Unless otherwise agreed to by the parties, any modification or amendment to this Agreement will be effective only if in writing and signed by both parties, provided that, in the event the parties agree to modifications or amendments designed only to benefit Chef as a result of renegotiation, InfiSolv may issue notice of such modifications or amendments to Chef as final agreement on such modifications or amendments, to expedite necessary changes to InfiSolv’s internal systems. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that In the event of any such transfer by Chef, Chef explicitly consents that any such transferee will have access to and control of all Chef accounts related to such transfer, including its accounts with InfiSolv, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Chef’s Location(s), the parties will need to execute a Change of Ownership form and Chef acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the LocalChefs App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event**”).The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.