Last updated: October 12, 2023
Your use of the Services may be subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with Dorsia (“Supplemental Terms”) which are incorporated by reference into these Terms, (together, the Agreement”). To the extent there is any conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control with respect to the Services or feature to which the Supplemental Terms relate.
BY APPLYING FOR A DORSIA MEMBERSHIP, CREATING A DORSIA ACCOUNT, OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (B) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THE AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (i) THE TERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (ii) THAT THE INDIVIDUAL ENTERING INTO THE AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
U.S. RESIDENTS – IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS AND UPDATES TO THE AGREEMENTIF YOU ARE A U.S. RESIDENT, PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND DORSIA HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 15 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND DORSIA BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (I) YOU AND DORSIA WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (II) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. PLEASE BE AWARE THAT SECTION 7 (DORSIA COMMUNICATIONS) OF THE AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. Changes to Terms.
2. ACCESS TO THE SERVICES.
2.1 Rights to Use the Services. The Services, and any parts thereof are protected by copyright laws throughout the world. Subject to the Agreement, Dorsia grants you the right to access and use the features and functionality of the Services. Unless otherwise specified by Dorsia in a separate license, your right to use any part of the Services is subject to the Agreement. Dorsia, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Dorsia pursuant to the Agreement.
2.2. Application License. For any App made available as part of the Services, Dorsia grants you, subject to your compliance with the Agreement, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.3. Updates. You understand that the Services are evolving. You acknowledge and agree that Dorsia may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.
2.4. Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any portion of the Services, or any content displayed thereon; (b) use any metatags or other “hidden text” using Dorsia’s name or trademarks; (c) frame or utilize framing techniques to enclose any trademark, logo, or other Dorsia content (including images, text, page layout or form) of Dorsia; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access or use the Services in order to build a similar, substitute or competitive website, product, or service; (f) 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,” extract, or download data from any web pages or components of the Services (collectively, the “Scraping Devices”) (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from web pages in the Services 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 materials); and (g) use the Scraping Devices to leverage any content or information from the Services for machine learning or training of artificial intelligence models or tools. Any unauthorized use of the Services, including any use in violation of this Section 2.4, terminates the licenses granted by Dorsia pursuant to this Agreement.
2.5. No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Dorsia will have no obligation to provide you with any support or maintenance in connection with the Services (unless you are an enterprise user associated with an enterprise customer that has contracted with us to receive such support or maintenance). As between us and you, you are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
2.6. Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Dorsia or Dorsia’s suppliers. Neither the Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2. Dorsia and its suppliers reserve all rights not granted in the Agreement. There are no implied licenses granted under the Agreement. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
3. MEMBERSHIP; REGISTRATION AND ACCOUNT.
3.1. Membership. In order to access and use certain features of the Services, you are required to apply for a Dorsia membership (the “Membership”) unless Dorsia provides some other form of access and use of certain features of the Services. Dorsia reserves the rights to establish eligibility criteria for Membership, whether or not such criteria are published. You acknowledge and agree that Dorsia makes all Membership decisions in its sole and absolute discretion, and Dorsia’s decisions around Membership shall be final and non-appealable. You may not submit multiple applications for Membership simultaneously. When applying for Membership, all information you submit must be true, accurate, and complete.
3.2. Registration and Account Creation. If Dorsia approves you for a Membership, you must create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) your name, an email address and password. You agree to provide information required for your use of the Services that is, and to update such information so it remains true, accurate, current and complete.
3.3. Account Responsibilities. 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 Dorsia of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. Dorsia cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
4.1. Reservations. Once you have registered for an Account, you may make a reservation or submit a request for a reservation (a “Reservation”) at a participating restaurant in the Dorsia network (a “Restaurant”). The App will indicate certain time slots (the “Instant Booking Reservation Time”) at Restaurants that are available for instant booking (an “Instant Booking”). You may also submit a custom request for a reservation (a “Custom Request”) at a Restaurant. Your Custom Request must include the time slot or the time range that you desire (the “Custom Reservation Time”) (the “Reservation Time” refers to either the Instant Booking Reservation Time or Custom Reservation Time, as applicable) as well as the number of guests. Each Reservation, unless otherwise indicated, is subject to a minimum amount that you guarantee to spend at your Reservation (the “Minimum Spend”). The Minimum Spend is generated by our proprietary platform based on information provided by the Restaurant. Upon making an Instant Booking you must make payment for an amount equal to the Minimum Spend. If you submit a Custom Request, Dorsia may pre-authorize a charge to your Account for an amount equal to up to the Minimum Spend. You may not submit multiple Custom Requests for the same Custom Reservation Time (whether at the same Restaurant or at different Restaurants), including by utilizing multiple Accounts to do so.
4.2. Confirmation of a Custom Request. Your Custom Request does not constitute a confirmed Reservation. Dorsia shall notify you whether your Custom Request has been accepted (a “Confirmation”) and may elect to do so via the App, or via the contact information in your Account. The Restaurant shall have the sole and absolute discretion to determine whether to accept or decline your Custom Request. If your Custom Request is accepted by the Restaurant by fifteen (15) minutes before your Custom Reservation Time, you shall hold a confirmed Reservation for that Restaurant. Once a Restaurant issues a Confirmation, Dorsia will charge your Account an amount equal to the Minimum Spend. If we are unable to charge your Account for any reason, the Confirmation may be rescinded, and you shall have no rights in the Reservation you sought to make.
4.3. Declination of a Custom Request. If a Restaurant declines to accept your Custom Request for any reason in its sole and absolute discretion, Dorsia may notify you via the App or via the contact information in your Account (a “Declination.”) If a Restaurant fails to issue a Confirmation by fifteen (15) minutes before your Custom Reservation Time, your Custom Request shall be deemed denied and this shall constitute a Declination. Following a Declination, you shall be free to re-submit a Custom Request, including for the same Custom Reservation Time and at the same Restaurant, subject to the then-current Minimum Spend.
4.4. Dorsia’s Cancellation Policy. Unless indicated otherwise on a Restaurant’s reservation page in the App, (i) if you cancel your Reservation via the App more than eight (8) hours prior to the Reservation Time, you shall be credited back the full amount of your Minimum Spend to your Dorsia Account and (ii) if you cancel your Reservation via the App less than eight (8) hours prior to your Reservation Time, this will constitute a “Late Cancel,” and only fifty percent (50%) of the amount of your Minimum Spend will be credited back to your Dorsia Account. For the avoidance of doubt, the remaining fifty (50%) of the Minimum Spend is non-refundable. If you wish to cancel a Reservation within eight (8) hours of the Reservation Time but do not wish to incur a Late Cancel due to extenuating circumstances, please contact Dorsia using the “Support” function in the App, and we will consider your request (provided that you acknowledge and agree that Dorsia has no obligation to waive such Late Cancel). Some Restaurants may impose additional penalties for cancellations per their standard cancellation policies. Such penalties will be described on the applicable Restaurant’s reservation page in the App.
4.5. Dorsia’s No-Show Policy. Dorsia is committed to providing superior quality services to Dorsia users and Restaurants alike. To assist us in maintaining a consistently high level of service for the Restaurants and their patrons, when you make a Reservation through the Services, you are expected to honor the Reservation by arriving on time. However, we understand that, occasionally, unforeseen circumstances may prevent you from making your Reservation as initially planned. If you decide not to keep your Reservation, please cancel the Reservation in accordance with Section 4.4 above. Unless otherwise stated herein, if you do not arrive and check in with a Restaurant host within fifteen (15) minutes after your Reservation Time (or, for the avoidance of doubt, if you fail to arrive at the Restaurant), you will be considered a “No Show”. In the event of a No Show, (a) your Reservation will be terminated, (b) the Minimum Spend pre-paid for such Reservation will be completely forfeited, and (c) you will have no right to a refund or credit. No Shows are associated with your Account, and Dorsia reserves the right to terminate or suspend your ability to use the Services, including without limitation for the purpose of submitting Custom Requests and making Reservations, if you have an excessive amount of No Shows, as determined in Dorsiaʼs sole and absolute discretion. If you believe a No Show has been linked to your Account erroneously, you may dispute it by contacting us the “Support” function in the App. You acknowledge and agree that all final determinations regarding No Shows will be made by Dorsia in our sole discretion.
4.6. Other Obligations. Upon arriving at the Restaurant, it is your responsibility to notify the host that you have a Reservation. You agree not to resell or attempt to resell any Reservations. You will conduct yourself in an appropriate manner at any Restaurant where you obtain a Reservation.
4.7. Restaurant Failing to Honor Your Reservation. If a Restaurant fails to honor your Reservation (for example, if a host refuses to seat you despite your on-time arrival for your Reservation Time), please contact us using the “Support” function in the App with a detailed description of the incident. If Dorsia determines, in its sole and absolute discretion, that the Restaurant improperly refused to honor your Reservation, Dorsia will credit back the Minimum Spend associated with such Reservation to your Account.
5. FEES AND PURCHASE TERMS.
5.1. Payment. You agree to pay all fees or charges to your Account (including, without limitation, the Minimum Spend associated with a Reservation) at the time a fee or charge is due and payable in accordance with the Services. You must provide Dorsia with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) of a payment provider (each, a “Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Dorsia with your credit card number and associated payment information, you agree that Dorsia is authorized to immediately charge your Account for all fees and charges (including, without limitation, the Minimum Spend associated with a Reservation) as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Dorsia of any change in your billing address or the credit card used for payment hereunder. Dorsia reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
5.2. Exceeding the Minimum Spend. When you are at a Restaurant for which you made a reservation and pre-paid a Minimum Spend via Dorsia and your total order exceeds such Minimum Spend (“Excess Spend”), you will be required to pay the Excess Spend either (i) directly to the Restaurant at the end of your meal or (ii) to Dorsia through additional fees and charges to your Account. Dorsia and the Restaurant shall determine how you pay the Excess Spend in their absolute discretion.
5.3. Minimum Spend Exclusive of Payment Processing Fees, Taxes, and Gratuity. For the avoidance of doubt, Dorsia may charge a payment processing fee (in addition to the Minimum Spend and Excess Spend) when your Reservation is confirmed. In addition, the Minimum Spend and Excess Spend are exclusive of any taxes and gratuities owed to the Restaurant and any personnel, which must be paid directly to (as applicable) the Restaurant or Dorsia when you are presented with the final bill for the evening. However, if your Reservation is for a Restaurant located in the European Economic Area or in the United Kingdom, the Minimum Spend and Excess Spend are inclusive of applicable taxes (including value-add tax).
5.5. Sales Tax. If Dorsia determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Dorsia may collect such Sales Tax in addition to any other fees or charges charged to your Account. If any Services are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Dorsia, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Dorsia for any liability or expense Dorsia may incur in connection with such Sales Taxes. Upon Dorsia’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.6. Withholding Taxes. You agree to make all payments of fees to Dorsia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Dorsia will be your sole responsibility, and you will provide Dorsia with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
6. FEEDBACK. If you provide Dorsia with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Dorsia all rights in such Feedback and agree that Dorsia shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Dorsia will treat any Feedback you provide to Dorsia as non-confidential and non-proprietary. You agree that you will not submit to Dorsia any information or ideas that you consider to be confidential or proprietary.
7. ACCEPTABLE USE POLICY. You agree not to: (a) use the Services to upload, transmit, display, or distribute any content or information that (i) 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; or (ii) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (b) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (c) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (d) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (e) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (g) interfere with any other user’s use and enjoyment of the Services; (h) impersonate any person or entity, including any employee or representative of Dorsia; or (i) use software or automated agents or scripts or other Scraping Devices to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services, including in connection with machine learning or training of artificial intelligence technology.
8. DORSIA COMMUNICATIONS.
8.1. Generally. You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or email address to us, you consent to receive SMS/text messages, and email communications from Dorsia. Communications from us may include operational communications about your use of the Services. In addition, Dorsia may communicate with you via push notifications from the App.
8.2. Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
8.3. Electronic Communications. The communications between you and Dorsia use electronic means, whether you use the Services or send us emails, or whether Dorsia posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Dorsia in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Dorsia provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
9. INDEMNIFICATION. To the fullest extent permitted by applicable law, you agree to indemnify and hold Dorsia (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your content at a Restaurant, (c) your violation of the Agreement, or (d) your violation of applicable laws or regulations. Dorsia reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Dorsia. Dorsia will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. THIRD-PARTY LINKS AND APPLICATIONS; OTHER USERS.
10.1. Third-Party Links, Services and Applications. The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links, Services and Applications”). Such Third-Party Links, Services and Applications are not under the control of Dorsia, and Dorsia is not responsible for any Third-Party Links, Services and Applications. Dorsia provides access to these Third-Party Links, Services and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Services and Applications. You use all Third-Party Links, Services and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, Services and Applications, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links, Services and Applications.
10.2. Other Users. Your interactions with other users are solely between you and such users. You agree that Dorsia will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Services, we are under no obligation to become involved. However, we reserve the right to intercede in such disputes at our sole discretion.
11. DISCLAIMERS. Generally. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT PREJUDICE TO YOUR STATUTORY RIGHTS, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES OR THE ACTIONS OR OMISSIONS OF ANY USER. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT WHETHER PROVIDED BY DORSIA OR ANOTHER USER OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT PREJUDICE TO YOUR STATUTORY RIGHTS, DORSIA (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DORSIA MAKES NO WARRANTIES ABOUT THE QUALITY, ACCURACY OR RELIABILITY OF ANY THIRD-PARTY DATA OR THIRD-PARTY LINKS, SERVICES, AND APPLICATIONS, AND DORSIA DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE FOREGOING. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST SERVICES.
DORSIA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY RESTAURANTS, OR THE QUALITY OF SUCH RESTAURANTS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE QUALITY OF YOUR DINING EXPERIENCE OR THE FOOD AT ANY GIVEN RESTAURANT. WE DISCLAIM ALL LIABILITY IN CONNECTION WITH THE ACTIONS OR INACTIONS OF ANY RESTAURANT PERSONNEL. YOU HEREBY RELEASE DORSIA FROM ANY CLAIMS IN CONNECTION WITH YOUR EXPERIENCE AT A RESTAURANT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY BENEFIT FROM ADDITIONAL RIGHTS UNDER THE MANDATORY LAW OF YOUR COUNTRY OF RESIDENCE, AND THE AGREEMENT IS NOT INTENDED TO EXCLUDE OR LIMIT SUCH ADDITIONAL RIGHTS.
12. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DORSIA (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PART THEREOF, EVEN IF DORSIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO DORSIA’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY DORSIA’S NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO ONE HUNDRED ($100) DOLLARS. 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 OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DORSIA AND YOU.
13. TERM AND TERMINATION. Subject to this Section, the Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of the Agreement. Upon termination of your rights under the Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of any information associated with your Account from our live databases. Dorsia will not have any liability whatsoever to you for any termination of your rights under the Agreement, including for termination of your Account or deletion of any of your information. Even after your rights under the Agreement are terminated, the following provisions of the Agreement will remain in effect: Sections 2.4, 2.5, 2.6, 5, 6, 9, 11, 12, 13, 14, 15 and 16.
14. COPYRIGHT POLICY. Dorsia respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, 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 Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, 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; anda 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.
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.
The designated Copyright Agent for Dorsia is: Legal Department
3921 Alton Road
Miami Beach, FL 33140
Phone: (305) 204-9486
15. (U.S. RESIDENTS ONLY) ARBITRATION CLAUSE AND CLASS ACTION WAIVER. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires that you and Dorsia arbitrate disputes against one another.
Dispute Resolution: IF YOU ARE A U.S. RESIDENT, PLEASE BE AWARE THAT THIS SECTION 15 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND DORSIA HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND DORSIA BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 15 CAREFULLY.
15.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Dorsia agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or this Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Dorsia may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Dorsia may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of the Agreement.
15.2. Informal Dispute Resolution. There may be instances when a Dispute arises between you and Dorsia. If that occurs, Dorsia is committed to working with you to reach a reasonable resolution. You and Dorsia agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Dorsia therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Dorsia that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 3921 Alton Road, Suite 413, Miami Beach, FL 33140. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this Section.
15.3. Waiver of Jury Trial. YOU AND DORSIA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Dorsia are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4. Waiver of Class and Other Non-Individualized Relief. YOU AND DORSIA AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 15.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 15.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Dorsia agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Wappingers Falls, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Dorsia from participating in a class-wide settlement of claims.
15.5. Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Dorsia agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account information (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 15.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. You and Dorsia agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 15.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
15.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Dorsia need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
15.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Dorsia agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Dorsia by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Dorsia.
You and Dorsia agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 3921 Alton Road, Suite 413, Miami Beach, FL 33140, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Dorsia account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11. Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Dorsia as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Dorsia makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Dorsia at: 3921 Alton Road, Suite 413, Miami Beach, FL 33140, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Dorsia will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
16.1. Electronic Communications. The communications between you and Dorsia may take place via electronic means, whether you visit the Services or send Dorsia e-mails, or whether Dorsia posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Dorsia in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Dorsia provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
16.2. App Store. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store (each, an “App Store”). You acknowledge that the Agreement is between you and Dorsia and not with the App Store. Dorsia, not the App Store, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
16.3. Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: You acknowledge and agree that (i) the Agreement is concluded between you and Dorsia only, and not Apple, and (ii) Dorsia, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Dorsia and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Dorsia. You and Dorsia acknowledge that, as between Dorsia and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.You and Dorsia acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Dorsia and Apple, Dorsia, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. You and Dorsia acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
16.4. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Dorsia’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.5. Force Majeure. Dorsia shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.6. Governing Law and Jurisdiction. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Dorsia agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware, Florida. However, if you reside in a member state of the European Economic Area or in the United Kingdom: (i) you may benefit from additional rights afforded to you by mandatory provisions of the laws of your country of residence, and nothing in the Agreement will affect the application or enforceability of these additional rights; and (ii) you may bring a claim to enforce such mandatory rights in a court of your country of residence.
16.7. Notice. Where Dorsia requires that you provide an e-mail address, you are responsible for providing Dorsia with your most current e-mail address. In the event that the last e-mail address you provided to Dorsia is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Dorsia’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Dorsia at the following address: 3921 Alton Road, Suite 413, Miami Beach, FL 33140. Such notice shall be deemed given when received by Dorsia by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.8. Release. 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You further expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect.
16.9. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11. Third Party Rights. The Agreement is between you and Dorsia, and no other person shall have any rights or obligations pursuant to the Agreement.
16.12. International Users. The Site and other parts of the Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Dorsia intends to announce such services or content in your country. The Services are controlled and offered by Dorsia from its facilities in the United States of America.
16.13. Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Dorsia, or any products utilizing such data, in violation of the United States export laws or regulations.
16.14. Copyright/Trademark Information. Copyright © Dorsia, Elomi Corporation. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any Dorsia Marks will inure to Dorsia’s benefit.
16.15. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at the contact information below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In addition, in accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.16. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
16.17. Contact Information:
3921 Alton Road, Suite 413
Miami Beach, FL 33140