These Vendor Terms and Conditions (the “Terms”) are between Food Fire + Knives, LLC, a South Carolina limited liability company (referred herein as “Company,” “we,” “us,” “our”), and the person or entity providing culinary services and prepared food (“Vendor,” “Chef,” “you,” or “your”) through the Company marketplace application and/or Company website (collectively, the “Marketplace”).
THESE TERMS CONTAIN ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THESE TERMS IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES ARISING UNDER, OR RELATED TO, THESE TERMS UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED WITHIN THESE TERMS. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
1. Assignment.
The right to participate in the Marketplace is personal to you and is not transferable, assignable or conveyable to any other person or entity without the express written permission of Company. Any attempted assignment, conveyance, or transfer in violation of the foregoing sentence shall be null and void. You agree that Company, in our sole discretion, may automatically assign these Terms and all agreements and notices incorporated herein to a third party.
2. Marketplace
The Marketplace is a platform established and maintained by Company that enables vendors to provide their culinary and prepared food services, such services including providing vendors’ menus (“Menus”), (collectively the “Services”) for sale to customers who wish to purchase vendors’ Services through the Marketplace (“Customers”) . The Marketplace includes certain features and functionalities to facilitate Vendor’s sales of Services to Customers on the Marketplace, such features including without limitation, listings of Services, search functions, biographies of vendors, Customer reviews, order-taking functions, payment processing mechanisms, delivery system interfaces, and functionalities allowing Customers to purchase Services from Vendor. Company established and maintained the aforementioned features and functionalities to allow vendors to interface with Customers and sell Services to Customers, and the continued offering of these features and functionalities is at Company’s sole discretion.
3. Responsibilities of Vendor
(a) General Safety and Compliance Obligations. Vendor is solely responsible for the preparation, offering of, and provision of Services to Customers, including but not limited to preparation and provisions of Services. Vendor shall comply with all laws, rules, regulations, local ordinances, rental agreements, fire codes, zoning laws, tax laws (including, but not limited to, collection, remittance and reporting obligations with respect to use, meal and similar taxes) and any other such requirements or restrictions applicable to Vendor’s provision of the Services. Vendors must comply with all applicable permit, licensing, registration, or similar requirements under any and all applicable federal, state, or local laws, regulations, or ordinances. You should consult with your legal counsel to the extent you have any questions about the legal or other compliance requirements set forth in these Terms.
(b) Order Confirmation and Receiving. Once you receive an order from a Customer for Services on the Marketplace, you commit to making the Services available to such Customer in the quantities and during the dates and times specified in the Customer’s order (barring extreme circumstances that would prohibit the safe provision of the Services, such as illness, power outages, or forces of nature outside of Vendor’s control). You are responsible for all costs involved in preparing and providing the Services, including but not limited to all food costs, storage costs, electricity, gas, water, and other expenses. Furthermore, you are responsible for obtaining any and all required or desired equipment for the provision of Services to Customers. Company will not provide any equipment for the provision of Services. If you cancel a reservation or decide not to accept, Company reserves the right to charge or collect damages including but not limited to loss of commission, processing and booking fees.
(c) Acceptance of Reasonable Modification. You will be expected to accept reasonable modifications to the Services as requested by Customers, which may include use of gluten-free ingredients, dairy-free ingredients, or nut-free ingredients.
(d) Authorization to Make Recordings and Use Imagery. You consent to allow Company to document, photograph, illustrate, video record, image, or otherwise record and publish in any media or format your provision of a Menu and agree that (a) any such documentation, photograph, illustration, video recording, imagery, or other recording (collectively, “Recording”) will be owned exclusively by Company, and (b) to the extent that your name, likeness, biography, and/or voice (collectively, “Imagery”) appears in any such Recording, you grant to Company an unrestricted, perpetual, transferrable and worldwide license to use your Imagery as contained in the Recording in all media now known and later developed for any purpose, including for the purpose of promoting the Company Marketplace.
4. Pricing.
You and Company will agree in writing on your pricing for each Menu. You will not have the option to change your pricing of any Menu without the written consent of Company.
5. Payment.
Company collects payment from Customers who purchase your Services. Company collects a commission (the “Commission”) for its provision and maintenance of the features and functionalities on the Marketplace. Company will endeavor to transfer you amounts due within one (1) week following your provision of Services for a Customer. In the event that Company is unable to transfer amounts due within one (1) week in accordance with the previous sentence, Company will notify you and provide an estimate of when such amounts will be paid. You shall not accept any payment of any kind directly from Customer, other than gratuity for services purchased through the Marketplace. Company reserves the right to modify the amount of the Commission upon reasonable advanced notice to you.
6. Non-Disparagement; Non-Circumvention.
You agree that you will not engage in any conduct that disparages, denigrates, or undermines (a) Company, Company’s operations, or the Marketplace; (b) any other vendor using the Marketplace; or (c) any user or Customer using the Marketplace. You shall not solicit Customers to participate in any event or activity, including but not limited to sales transactions, originating outside of the Marketplace.
7. Release of Liability.
By using the Marketplace, you hereby represent, understand, and expressly agree to release and hold Company and Company’s members, officers, directors, shareholders, employees, parents, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers (collectively, “Affiliates”) harmless from any claim or controversy that may arise out of:
Company and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown, from the above.
8. Indemnification.
To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold Company and its officers, directors, members, managers, employees, agents and other representatives free and harmless from and against any and all claims, losses, expenses or demands of liability, including reasonable attorneys’ fees and costs (collectively, “Claims”) resulting from (a) your use of the Marketplace, (b) your participation in the Marketplace, (c) your breach of your obligations as stated in these Terms, (d) any and all Services you provide to Customers by means of the Marketplace, or (e) your relationship with any Customer or user of the Marketplace. Company shall provide notice to you of any such Claim upon becoming aware of it. You agree not to settle or compromise any matter without the prior written consent of Company.
Notwithstanding the foregoing, Company reserves the right, at its expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. The provisions of this indemnification section shall survive termination of your account on the Marketplace or these Terms.
You further agree to indemnify, defend, and hold harmless Company and its affiliates, officers, directors, members, managers, employees, agents, and other representatives from an against any Claim made by a user of the Marketplace, including any losses, personal injuries, death, or any other occurrence or event of whatsoever. Notwithstanding the foregoing, you will have no indemnification obligation under this paragraph with respect to any claims based upon or arising in whole or in part from the gross negligence or willful misconduct of Company.
9. Term and Termination.
These Terms shall remain in effect between you and Company for as long as you continue to use the Marketplace, unless otherwise terminated in accordance with these Terms. Company may temporarily or permanently terminate your ability to use the Marketplace, or terminate these Terms, at any time if: (a) you have breached any provision, term or condition of these Terms; (b) Company is required to do so by law; (c) Company believes, in its sole discretion, that you have committed fraud with respect to the information you provide to Company,; (d) Company is no longer providing its services to customers in the jurisdiction in which you reside or from which you provide your Services; or (e) Company has determined in its sole discretion that you have misused or misappropriated content from the Marketplace, including but not limited to use on a “mirrored,” competitive, or third-party website. In the event that you fail to post any availability for Services on Marketplace for a period of three (3) consecutive months, you will be deemed to have terminated these Terms as between you and Company and abandoned use of the Marketplace, following which Company will terminate your ability to access the Marketplace. Termination under this Section 9 is effective without notice. All provisions of these Terms, which by their nature should survive, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability.
10. Independent Contractors.
You understand, acknowledge and agree that Company does not employ you or any vendors, and Company is not responsible for the conduct, whether on the Marketplace or elsewhere, of any vendor, Customer, or user of the Marketplace. You understand, acknowledge and agree that besides access to the Marketplace, Company does not provide you or any vendors with any materials or equipment for provision of Services to Customers.
11. Governing Law.
These Terms and any issue or dispute arising out of, or otherwise related to, these Terms or with your participation in the Marketplace or any matter concerning Company (collectively “Disputes”) shall be governed exclusively by the laws of the State of South Carolina, notwithstanding any of conflict of law provisions of such state.
12. Dispute Resolution.
(a) Pre-Arbitration Dispute Resolution. If a Dispute arises under these Terms, you agree to first contact Company with a written description of the Dispute, all documents and information relevant to the Dispute, and a proposed resolution of the Dispute. You agree to contact Company about Dispute you have by writing to Company at Contact@FoodFireKnives.com. Company will contact you by letter or email to your address that we have on file for you in attempt to resolve the Dispute.
(b) Arbitration Procedures. If any Dispute cannot be resolved under the procedures described in Section 12(a), you each agree that any and all Disputes shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a mutually agreed location. Either you or Company may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolution Procedures in effect at the time of submission of the demand for arbitration. We will pay all of the filing costs, including arbitrator fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of South Carolina: any dispute, controversy, or claim related to or contesting the validity of our proprietary rights, including without limitation, trademarks, service marks, copyrights, patents, trade secrets, or any other intellectual property rights.
(c) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND COMPANY AGREE THAT EACH YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST COMPANY AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER VENDORS, CUSTOMERS, OR USERS OF THE MARKETPLACE. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(d) Opt-Out. You shall have thirty (30) days from the date you submit your contact information to establish an account on the Marketplace to opt-out of the arbitration provisions set forth in this Section 12. To opt out, you must contact us in writing at Contact@FoodFireKnives.com and set forth in writing your intent to opt out of the arbitration procedures in Section 12 of these Terms. No opt out shall be valid in the event that you fail to adhere to the terms and conditions for opting out as set forth in this Section 12(d).
13. Miscellaneous.
These Terms constitute the entire agreement of you and Company with respect to your ability to use the Marketplace, and to sell your Services to Customers on the Marketplace. No waiver by either you or Company of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Company’s failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to such breach, or subsequent or similar breaches. If any provision of these Terms is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provision contained in these Terms and the remaining portions of these Terms shall continue in full force and effect.
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