These terms of service constitute a legally binding agreement (the "Agreement") between you and Meniuu, Inc. ("Meniuu," "we," "us" or "our") governing your use of the Meniuu application, website, and technology platform (collectively, the "Meniuu Platform").
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND MENIUU HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST MENIUU TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A RESTAURANT OR RESTAURANT APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into to this Agreement, and/or by using or accessing the Meniuu platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE MENIUU PLATFORM. If you use the services of Meniuu or its affiliates in another country, by using the Meniuu Platform in that country you agree to be subject to Meniuu's terms of service for that country.
The Meniuu Platform
The Meniuu Platform offers an application that allows Restaurants to provide meals and beverages directly to diners through a smartphone application ("Services") and offers users programs and applications to track the use of consumers (the " Applications"). These Seller Terms and Conditions ("Terms") govern your access to and use of the Services and Applications. "Restaurant" means any food supplier entity and its agents that make use of the Application or provide services for their clients.
Modification to the Agreement
In the event Meniuu modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Meniuu reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Meniuu Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Meniuu Platform may only be used by individuals who can form legally binding contracts under applicable law. The Meniuu Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
As a diner, you understand that request or use of the Services may result in charges to you ("Charges"). Charges include Fares and other applicable fees, surcharges, and taxes as set forth on your market, plus any tips to the Restaurant that you elect to pay. Meniuu has the authority and reserves the right to determine and to modify pricing by posting applicable pricing terms to your market page or quoting you a price for a specific service at the time you make a request. Pricing may vary based on the type of service you request, you are responsible for reviewing the applicab price quote within the App and will be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fares. There are two types of fares, variable and quoted.
Fees and Other Charges.
Payments and Taxes
If you are a Restaurant, you will receive payment for your provision of Services pursuant to the terms of the Restaurant Addendum, which shall form part of this Agreement between you and Meniuu. The Restaurant Addendum is available in the Restaurant dashboard when you log into your account.
It is also your responsibility to determine which, if any, applicable taxes on the sale of your products and services and / or the payments you receive in connection with the use of the Service. ("Taxes"). You are solely responsible for evaluating, collecting, reporting or knowing the correct taxes to the appropriate tax authorities. We are not obligated, nor will we determine if taxes are applied, or to calculate, collect, declare or enter any taxes to any fiscal authority, derived from any transaction. You are aware that we may make certain representations to the tax authorities in connection with the transactions we process and with respect to the merchants to whom we provide card payment services. We reserve the right to give reports to the relevant tax authorities about card payment transactions processed by Meniuu, as an aggregator on your behalf, to the extent that we are bound by applicable laws.
By entering into this Agreement or using the Platform, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Meniuu, its affiliated companies and/or Restaurants, may include but are not limited to: operational communications concerning your User account or use of the Meniuu Platform or Services, updates concerning new and existing features on the Meniuu Platform, communications concerning promotions run by us or our third-party partners, and news concerning Meniuu and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT "END" TO 46080 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE MENIUU PLATFORM OR THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM MENIUU (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD "STOPALL" TO 46080 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE MENIUU PLATFORM OR THE SERVICES.
You may be able to create or log-in to your Meniuu User account through online accounts you may have with third party social networking sites (each such account, an "SNS Account"). By connecting to Meniuu through an SNS Account, you understand that Meniuu may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the "SNS Content")). You understand that SNS Content may be available on and through the Meniuu Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
Promotions and Referral Programs
Meniuu, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Meniuu. Meniuu reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Meniuu determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Meniuu may provide you with or allow you to create a "Meniuu Code," a unique alphanumeric code for you to distribute to your friends and family (each a "Referred User") to become new Meniuu Diners ("Referred Diners") or Restaurants ("Referred Restaurants") in your country. Meniuu Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Meniuu Code. You are prohibited from advertising Meniuu Codes in any way, including through any of the following: Google, Facebook, Twitter, Bing and Craigslist. Meniuu reserves the right to deactivate or invalidate any Meniuu Code at any time in Meniuu's discretion.
From time to time, Meniuu may offer you with incentives to refer your friends and family to become new Users of the Meniuu Platform in your country (the "Referral Program"). These incentives may come in the form of Meniuu Credits, and Meniuu may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Meniuu Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.
With respect to your use of the Meniuu Platform and your participation in the Services, you agree that you will not:
Restaurants Representations, Warranties and Agreements
By providing Services as a Restaurant on the Meniuu Platform, you represent, warrant, and agree that:
All intellectual property rights in the Meniuu Platform shall be owned by Meniuu absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Meniuu Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information ("Submissions") provided by you to us are non-confidential and shall become the sole property of Meniuu. Meniuu shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Meniuu and other Meniuu logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Meniuu in the United States and/or other countries (collectively, the "Meniuu Marks"). If you provide Services as a Restaurant, Meniuu grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Meniuu Marks solely in connection with providing the Services through the Meniuu Platform ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Meniuu's prior written permission, which it may withhold in its sole discretion. The Meniuu Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Meniuu is the owner and licensor of the Meniuu Marks, including all goodwill associated therewith, and that your use of the Meniuu Marks will confer no additional interest in or ownership of the Meniuu Marks in you but rather inures to the benefit of Meniuu. You agree to use the Meniuu Marks strictly in accordance with Meniuu's Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Meniuu determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the Meniuu Marks or any derivatives of the Meniuu Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Meniuu in writing; (2) use the Meniuu Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Meniuu Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Meniuu's rights as owner of the Meniuu Marks or the legality and/or enforceability of the Meniuu Marks, including, challenging or opposing Meniuu's ownership in the Meniuu Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Meniuu Marks, any derivative of the Meniuu Marks, any combination of the Meniuu Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Meniuu Marks; (5) use the Meniuu Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Meniuu's sole discretion. If you create any materials bearing the Meniuu Marks (in violation of this Agreement or otherwise), you agree that upon their creation Meniuu exclusively owns all right, title and interest in and to such materials, including any modifications to the Meniuu Marks or derivative works based on the Meniuu Marks. You further agree to assign any interest or right you may have in such materials to Meniuu, and to provide information and execute any documents as reasonably requested by Meniuu to enable Meniuu to formalize such assignment.
Meniuu respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Meniuu Platform or Services infringe upon your copyrights, please view our Copyright Policy for information on how to make a copyright complaint.
The following disclaimers are made on behalf of Meniuu, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Meniuu does not provide food and drinks services, and Meniuu is not a transportation carrier. It is up to the Restaurant to decide whether or not to offer a service to a diner contacted through the Meniuu Platform, and it is up to the diner to decide whether or not to accept a service from any Restaurant contacted through the Meniuu Platform. We cannot ensure that a Restaurant or Diner will complete an arranged service. We have no control over the quality or safety of the food or drink service that occurs as a result of the request.
The Meniuu Platform is provided on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Meniuu Platform and/or the Services, including the ability to provide or receive Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Meniuu Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Meniuu Platform will be corrected, or that the Meniuu Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Meniuu Platform or Services.
We cannot guarantee that each diner is who he or she claims to be. Please use common sense when using the Meniuu Platform and Services, including looking at the photos of the Restaurant or diner you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Meniuu Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Restaurant or Diner prior to engaging in an arranged food or drink service.
Meniuu is not responsible for the conduct, whether online or offline, of any User of the Meniuu Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Restaurants or Diners. By using the Meniuu Platform and participating in the Services, you agree to accept such risks and agree that Meniuu is not responsible for the acts or omissions of Users on the Meniuu Platform or participating in the Services.
You are responsible for the use of your User account and Meniuu expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Meniuu Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Meniuu Platform or through the Services. Please carefully select the type of information that you post on the Meniuu Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or "hackers").
Opinions, advice, statements, offers, or other information or content concerning Meniuu or made available through the Meniuu Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Meniuu Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Meniuu Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Meniuu Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Meniuu, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Meniuu Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Meniuu Platform may be accessible to Meniuu and certain Users of the Meniuu Platform.
Meniuu advises you to use the Meniuu Platform with a data plan with unlimited or very high data usage limits, and Meniuu shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Meniuu Platform.
This paragraph applies to any version of the Meniuu Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Meniuu. Apple, Inc. ("Apple") is not a party to this Agreement and shall have no obligations with respect to the Meniuu Platform. Meniuu, not Apple, is solely responsible for the Meniuu Platform and the content thereof as set forth hereunder. However, Apple and Apple's subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple's Licensed Application End User License Agreement, for purposes of which, you are "the end-user." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
State and Local Disclosures
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.Meniuu.com/terms/disclosures. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Meniuu including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the Meniuu Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Restaurants, Diners, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Meniuu Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor site or passenger site, including your provision of Services as a Restaurant; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Limitation of Liability
IN NO EVENT WILL MENIUU, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY "MENIUU" FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE MENIUU PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE MENIUU PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MENIUU PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICE OF FOOD AND DRINKS, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT MENIUU HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICE FOR FOOD AND DRINKS, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days' prior written notice to Meniuu; or b) by either Party immediately, without notice, upon the other Party's material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, Meniuu may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services or to operate the approved site under applicable law, rule, permit, ordinance or regulation; (2) you fall below Meniuu's star rating or cancellation threshold; (3) Meniuu has the good faith belief that such action is necessary to protect the safety of the Meniuu community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Meniuu's reasonable satisfaction prior to Meniuu permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Meniuu's satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
YOU AND MENIUU MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate ("Arbitration Agreement") is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Meniuu ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Meniuu, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Meniuu's service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A "CLAIM" AND COLLECTIVELY, "CLAIMS") SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND MENIUU. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Meniuu Platform, the Services, any other goods or services made available through the Meniuu Platform, your relationship with Meniuu, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on Meniuu's behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Meniuu, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Meniuu and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND MENIUU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
YOU UNDERSTAND AND AGREE THAT YOU AND MENIUU MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ("CLASS ACTION WAIVER"). YOU UNDERSTAND AND AGREE THAT YOU AND MENIUU BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST MENIUU, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Meniuu agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code � 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Meniuu agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, "representative PAGA Waiver"). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA's website (www.adr.org) (the "AAA Rules") or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person's Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Meniuu will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Diners or Restaurants, but is bound by rulings in prior arbitrations involving the same diner or Restaurant to the extent required by applicable law. The arbitrator's award shall 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 challenged in a court of competent jurisdiction.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
Unless you and Meniuu agree otherwise, any arbitration hearings between Meniuu and a diner will take place in the county of your billing address, and any arbitration hearings between Meniuu and a Restaurant will take place in the county in which the Restaurant provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Meniuu agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court's jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers' compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board ("NLRB"), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
If you are a member of a putative class in a lawsuit against Meniuu involving Restaurant Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement's effective date (a "Pending Settlement Action"), then this Arbitration Agreement shall not apply to your Restaurant Claims in that particular class action. Instead, your Restaurant Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement's effective date.
As a Restaurant or Restaurant applicant, you may opt out of the requirement to arbitrate Restaurant Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in Meniuu's Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with Meniuu. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Restaurant Claims, you may opt out of arbitration with respect to such Restaurant Claims, other than those in a Pending Settlement Action, by notifying Meniuu in writing of your desire to opt out of arbitration for such Restaurant Claims, which writing must be dated, signed and delivered by: (1) electronic mail to arbitrationoptout@Meniuu.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
General Counsel Meniuu, Inc.
185 Berry St., Suite 5000 San Francisco, CA
Cases have been filed against Meniuu and may be filed in the future involving Restaurant Claims. You should assume that there are now, and may be in the future, lawsuits against Meniuu alleging class, collective, and/or representative Restaurant Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Restaurant Claims with Meniuu under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Meniuu in an individual arbitration provision, except for the Restaurant Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Restaurant Claims under this Arbitration Agreement.
Before initiating any arbitration or proceeding, you and Meniuu may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Meniuu. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Meniuu's business, operations and properties, information about a User made available to you in connection with such User's use of the Platform, which may include the User's name, pick-up location, contact information and photo ("Confidential Information") disclosed to you by Meniuu for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Meniuu in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Meniuu with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Meniuu or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Meniuu; becomes known to you, without restriction, from a source other than Meniuu without breach of this Agreement by you and otherwise not in violation of Meniuu's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Meniuu to enable Meniuu to seek a protective order or otherwise prevent or restrict such disclosure.
Relationship with Meniuu
As a Restaurant on the Meniuu Platform, you acknowledge and agree that you and Meniuu are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Meniuu expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Meniuu; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Meniuu, and you undertake not to hold yourself out as an employee, agent or authorized representative of Meniuu.
Meniuu does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your site. You retain the sole right to determine when, where, and for how long you will utilize the Meniuu Platform. You retain the option to accept or to decline or ignore a diner's request for Services via the Meniuu Platform, or to cancel an accepted request for Services via the Meniuu Platform, subject to Meniuu's then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Meniuu shall have no right to require you to: (a) display Meniuu's names, logos or colors on your site(s); or (b) wear a uniform or any other clothing displaying Meniuu's names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
In addition to connecting Diners with Restaurants, the Meniuu Platform may enable Users to provide or receive goods or services from other third parties. If you choose to purchase Other Services through the Meniuu Platform, you authorize Meniuu to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that Meniuu is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Meniuu Platform.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any other substantive right to non- Californians to assert claims under California law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Meniuu, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Meniuu shall be given by certified mail, postage prepaid and return receipt requested to Meniuu, Inc., 185 Berry St., Suite 5000, San Francisco, CA 94107. Any notices to you shall be provided to you through the Meniuu Platform or given to you via the email address or physical you provide to Meniuu during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words "include", "includes" and "including" are deemed to be followed by the words "without limitation". A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Meniuu with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Meniuu Platform or Services, please contact our Customer Support Team through our Help Center. firstname.lastname@example.org