Effective as from: 4/22/16
- The Ways You May (And May Not) Use the Services
- Payment Transactions
- Rules on Content That You Submit to Cake
- Restrictions on Special Promotions
- Your Dealings with Third Parties
- Signing Up for, Protecting, and Termination of a Cake Account
- Cake’s Rights to Modify the Agreement or Services
- How Other Policies Form the Agreement
- IP Rights and Your Grant of a License
- Consent to Arbitrate and Waiver of Class Action
- Limitation of Liability
- Digital Millennium Copyright Act
- Dreary Miscellaneous Terms That Are Still Important
- Notice Regarding Apple
BY INSTALLING AN APP OR OTHERWISE ACCESSING OR USING ANY SERVICES, OR BY OTHERWISE INDICATING YOUR AGREEMENT TO OR ACCEPTANCE OF THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE AGREEMENT. IF YOU ARE USING ANY SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU: (a) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT; AND (b) AGREE TO BE BOUND BY THE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE ANY SERVICES.
By agreeing to the Agreement, you represent and warrant to us that: (a) you are at least 18 years old (or at least 13 years old and your parent or guardian has agreed to the Agreement on your behalf) and have the legal capacity to contract, (b) you have not previously been suspended or removed from any Services, and (c) your registration and your use of the Services is and will comply with all applicable laws and regulations. If you are eligible, it’s important that you understand that: (i) just by using the Services you (or, if applicable, your parent or guardian on your behalf) enter a legally binding contract with Cake based on the Agreement terms (as updated from time to time) and (ii) these Terms contain an arbitration provision (described in more detail below) which limits your rights to a class action lawsuit and trial by jury if a dispute occurs.
Cake makes available a restaurant discovery, wait-list, online ordering, point-of-sale, and payments platform. The Services may include functionality that enables consumers to find, discuss, and transact with (by reserving table space or placing orders, for example) participating merchants (“Restaurants”). Cake, however, is not a merchant of food or beverages and does not control the Restaurants or their products or any delivery, pick-up, or customer support services associated with those activities. Further, Cake does not independently verify the quality of any Restaurant’s products or their compliance with applicable laws or regulations. Cake disclaims any liability for any acts or omissions by any Restaurant, including any deficiencies in the quality or character of the food or service (including dietary deficiencies or food safety), the timeliness of service (such as delivery periods), or, in the case of charges made directly to consumer by the restaurant (including transactions where payment is processed by Cake), the accuracy or fairness of those charges.
2. The Ways You May (And May Not) Use The Services
Permissions. In general, you may use and enjoy the Services so long you comply with the Agreement. However, Cake reserves the right to limit and revoke this permission in its sole discretion. Unless a use permission or right is expressly granted in the Agreement, it is reserved.
In consideration for the rights granted to you under the Agreement, you grant Cake and its parent and subsidiary companies the right to: (a) access and use the hardware on any of your relevant devices to deliver the Services, (b) provide advertising and other information to you, and (c) allow the business partners of Cake or its affiliates to do the same.
Prohibitions. Certain uses related to the Services are just not allowed. If a particular use negatively affects Cake’s ability to realize revenue to compete in the marketplace or materially and negatively affects other Cake users or Restaurants, that use is prohibited. You may not access, monitor, scrape, or copy (via, for example, deep-link or any robot, spider, web crawler, extraction software, automated process, or other device) any Services data or material and/or incorporate it into a separate database, archive/cache it, etc. You also may not reproduce, broadcast, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below)), without Cake’s permission.
In addition, you promise not to:
- Use any Services to generate unsolicited advertising, junk, or bulk e-mail.
- Take any action that imposes or may impose (as determined by Cake in its sole discretion) an unreasonably large load on the technology infrastructure of Cake or its third party providers, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code interfering with or disrupting any network, equipment, or server connected to or used to provide the Services, or violating any regulation, policy, or procedure of any network, equipment, or server.
- Access, retrieve, or index any portion of the Services to build or populate a searchable database of businesses.
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or exploit the Services, except as expressly authorized by Cake.
- Link or frame to any pages of the Sites or any content on the Services, whether in whole or in part.
- Provide Cake with false or incorrect contact information.
- Post, upload, or distribute any User Media or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate or that is intended primarily to promote a cause (political, religious, or other).
- Abuse, threaten, slander, or otherwise harm any other user, any Restaurant promoted on the Services, or any Cake member, employee, or other person connected to Cake.
- Interfere with Cake’s security-related features, including by accessing content not intended for you (such as logging into an account you are not authorized to access) or disabling or circumventing features that prevent or limit use or copying of any content.
- Use any Services in any manner inconsistent with applicable laws and regulations.
- Display an advertisement, or accept payment or anything of value from a third person in exchange for performing any commercial activity on or through the Services on behalf of that person, such as posting blogs or bulletins with a commercial purpose, or otherwise posting content on the Services that contains commercial self-promotion (unless expressly permitted by Cake).
- Use any Services to purchase alcohol unless you and the alcohol recipient are of legal age to purchase and consume alcohol.
- Modify or otherwise corrupt the functionality of the Services.
- Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right.
- Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other account on the Services without permission.
- Attempt to do any of the acts prohibited by the Agreement, or assist or permit any person in engaging in any of the acts prohibited by the Agreement.
If you believe the restrictions are unduly restrictive, you may provide notice to Cake at email@example.com, together with any information reasonably required for Cake to consider your situation and determine in its sole discretion if there is a remedy.
Disclaimer on Content. Cake reserves the right to change content on the Services without prior notice. Cake does not guarantee the accuracy of any content pertaining to any Restaurant, such as the hours of operation, the location, or the prices or the availability of menu items.
You Must Have Permission to Send SMS Text Messages to Others. You may be able to use the Services to send SMS text messages, which may include marketing content, to individuals who are not users of the Services. For example, you may be able to invite others to use the Services by text message. You represent and warrant you will initiate and send text messages using the Services only to those individuals who have expressly agreed to receive SMS text messages, including marketing text messages, from you and us. You agree that you control sending text messages you initiate through the Services and that we are limited to facilitating your text message transmissions.
You Consent to Receive SMS Text Messages from Us. By providing us or a Restaurant with your mobile telephone number, you consent to receive text messages at that number as requested for account verification, invitations, and other purposes related to the Services. Those text messages may be generated using an automatic telephone dialing system. While we do not charge a fee for text messages, the operator of your mobile network (“Carrier”) may charge standard messaging, data, and other fees. You are responsible for these charges. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the Carrier or other networks. Contact us immediately if the cell phone number(s) you have provided to Cake are changed or disconnected.
3. Fees; Payment Transactions
Access to some of the Services, or to certain features of the Services, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees you will be charged. All fees are in U.S. dollars and are non-refundable. If Cake changes the fees for any of the Services, including by adding additional fees or charges, Cake will provide you advance notice of those changes. If you do not accept the changes, Cake may discontinue providing the applicable Services to you. Cake will charge the payment method you specify at the time of purchase. You authorize Cake to charge all sums as described in the Agreement, for the Services you select, to that payment method. If you pay any fees with a credit card, Cake may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Services, you authorize Cake to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums by the payment due date for the accrued sums. If you use the Services to update or cancel any existing authorized one-time or recurring payment, it may take up to 60 business days for the update or cancellation to take effect.
The Services may enable users to purchase goods from, and make credit card payment(s) to, third parties that use Cake’s payments services (“Sellers”). By making that payment, you authorize your payment card to be charged by the Seller (or Cake as agent of Seller) to effectuate the purchase. Should you be entitled or subject to a refund, reversal, chargeback, or other adjustment associated with the transaction, you also authorize a credit to your payment card to achieve that adjustment.
If Cake believes that a transaction violates this Agreement or any of Cake’s commercial agreements with its banking partners related to the Services, or exposes you, other Cake users, Sellers, Cake partners, or Cake Entities (as defined below) to harm (such as, but not limited to, criminal activity) Cake may decide not to process a payment card transaction.
4. Rules on the Content You Submit to CAKE
Some aspects of the Services now or in the future may enable you and other users to submit content, such as restaurant reviews, images, and postings, including other users posting content to your account and posting of data drawn from Third Party Services (such as Facebook, etc.) in connection with the Services or promotion of the Services (collectively, “User Media”). Submissions of User Media by visitors to certain parts of the Services may be public and posted in public areas. User Media is intended to enhance the experience of the Services, however, it should not be understood as to be endorsed by or necessarily represent the views of Cake. Cake disclaims any duty to review or modify User Media, including restaurant reviews, and any responsibility for either the effects of harmful files, such as malware, that may be contained in that User Media, or for conduct by users or any third parties in connection with User Media submitted by them or you. Cake (without promising to do so) may decide it is in Cake’s best interests to block, remove, modify, or simply not post any User Media, including restaurant reviews or ratings, for any reason determined by Cake in its sole discretion at any time and may not notify you if it does so.If you decide to submit User Media, you promise you have the right to provide that User Media, which means:
- You are the creator and owner of the User Media, or
- The User Media is not protected by copyright law, or
- You have express permission from the copyright owner to use the User Media in connection with the Services; and
- You have the necessary licenses, rights, consents, and permissions to authorize Cake and users of the Services to use and distribute your User Media as necessary to exercise the licenses granted by you in these Terms; and
- For User Media that reviews Restaurants, you have had first-hand experience with those Restaurants.
You further agree not to submit any User Media otherwise prohibited by these Terms.
You: (a) agree that any User Media you provide in may be read, collected, and used by others who access the User Media, (b) agree to indemnify Cake and its indirect or direct subsidiary, parent, or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, with Cake, the “Cake Entities”) from all claims relating to your User Media, and (c) to the fullest extent permitted by applicable law, irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution regarding your User Media brought against the Cake Entities, any Third Party Services, and our and their users to the extent relating to use of the User Media for the Services or as otherwise expressly permitted under the Agreement. If you feel that User Media should be removed, please let us know, but ultimately it will be Cake’s decision (subject to any countervailing laws) on whether to take any action related to your request.
If you are accessing the Services as a minor with the consent of a guardian, you may submit a request to delete or anonymize information you post to the Services by emailing firstname.lastname@example.org. Notwithstanding the foregoing, it may not be possible to completely and comprehensively remove all of your User Media from the Services.
You understand that when using the Services you may be exposed to User Media from a variety of sources and acknowledge that User Media may be inaccurate, offensive, indecent, or objectionable. We expressly disclaim all liability in connection with User Media. If notified by a user or content owner that User Media allegedly does not conform to the Agreement, we may investigate the allegation and User Media in our sole discretion whether to remove the User Media, which we reserve the right to do at any time and without notice. For clarity, Cake does not permit copyright-infringing activities on the Services.
5. Restrictions on Special Promotions
From time to time the Services may offer you opportunities to participate in or utilize, as applicable, contests, coupons, loyalty programs, discounts, or promotional sales being offered by Cake or its Restaurants (each a “Special Promotion”). Special Promotions may, for example, offer a meal discount or a free drink when ordering a sandwich. When a Special Promotion is being offered by a Restaurant, Cake is simply the service provider for the Restaurant identified with that Special Promotion and the Restaurant alone is the seller and offeror of the Special Promotion and is solely responsible for redeeming any sale you purchase.
Special Promotions (unless stated to the contrary in the terms of the Special Promotion) are (a) available for only a limited time and may expire prior to you taking advantage of the Special Promotion, (b) only applicable to qualifying items and qualifying (e.g., minimum) purchase requirements, (c) not transferrable or combinable with other offers, and (d) void where prohibited and may not be available to users in certain locations. Further, for each Special Promotion being offered by Cake, we reserve the right to modify and limit its conditions, including the offer period except as limited by applicable law.
6. Your Dealings With Third Parties
General. Cake makes it easier for you to connect with other Cake users and buy from or connect with third parties (entities other than Cake or its parent or subsidiary companies) that offer goods, services, or promotions to you through the Services or otherwise provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third Party Services”). The Services may contain links to third party websites or display advertisements and promotional material of goods and services offered by third parties. However, Cake does not have or maintain any control over Third Party Services and is not responsible for their content, operation, or use. Cake is not responsible for the acts of third parties (including Restaurants and advertisers) and may not monitor your dealings with them. By linking or otherwise displaying information from or providing access to any Third Party Services, Cake gives no representation, warranty, or endorsement, express or implied, regarding the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services. Your dealings with third parties made through the Sites and/or Apps, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with those dealings, are solely between you and the third party and at your own risk. Conduct any diligence you feel necessary before engaging online or offline with any of these third parties. Note that third parties may pay Cake to be promoted on the Services or to have their respective product or service offering(s) placed higher in search results and may also purchase research or other services from Cake.
Pricing and Customer Service for Third Party Goods and Services. The purchase price for goods and services made available via the Services, as designed on the Cake system, is ultimately determined by Restaurants and Cake is not responsible for that price. Note that Cake does not guarantee that Restaurant pricing will not vary depending on the nature of the order transaction (online versus in-store) or the dining experience (delivery or take-away or in-store). If you believe that an item has been priced incorrectly, contact the Restaurant for additional information. Relatedly, the applicable Restaurant — not Cake — is responsible for all aspects of purchased goods and services, including customer service matters, such as returns, refunds, rebates, or issues with the Restaurant’s policies or personnel.
Disclaimer of Liability for Third Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. Cake disclaims all responsibility or liability for any harm resulting from your use of Third Party Services, and you irrevocably waive any claim against Cake regarding the content or operation of any Third Party Services.
Third Party Fees. Your use of the Services may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to other terms, such as your Carrier’s terms of service, and you agree to pay all of those fees and abide by all of those terms. You are solely responsible for all of those fees incurred by you for use of the Services.
Third Party Software. If you use an App, the software you download consists of a package of components, including certain third party software provided under separate license terms (the “Third Party Terms”). Your use of that software with the App in a manner consistent with the terms of the Agreement is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in the Agreement is intended to impose further restrictions on your use of that software. A list of third party software, if any, provided under Third Party Terms is as follows: Ubuntu; Spring Framework; Symfony Framework; Google Guice; React; Apache; Jetty; Tomcat; Node Js; RabbitMq; MemCache; TeamViewer; IntelliJ; Atlassian Tools; Eclipse; CouchDB; MySQL; Hadoop; iOS; and Android. The applicable Third Party Terms are accessible via links from the web sites of those licensors. Operator is bound by and will comply with all Third Party Terms.
7. Signing Up For, Protecting and Termination of a CAKE Account
Use of the Services may require registration and/or creation of an account with Cake (either by registering directly or through sign-on functionality provided by social networks or third party sites or services, such as Facebook.) If you create an account or Cake profile, you promise to provide accurate, complete registration information, and to keep that information up-to-date if it changes. When you register, you may obtain log-in and password credentials (a “User ID”).
If you register for an account, you must (a) maintain the security of your User ID, (b) accept full responsibility for all activities that occur under your User ID, and (c) notify Cake immediately if you learn your User ID is being used without authorization. Cake will not be liable for any damage of any kind arising from or relating to any acts or omissions by you or someone else using your User ID.
Cake reserves the right to suspend or terminate your account with or without notice. Upon termination of your account you agree that: (a) any use rights or licenses provided to you under the Agreement will end, and (b) Cake may permanently destroy all information associated with your or your account stored on servers controlled by Cake.
Cake is not liable to you or any third party for compensation, reimbursement, or damages in connection with any termination or suspension of the Services or any deletion of information associated with you or your account. Termination of the Agreement by either party does not relieve you of any payment obligations owed to Cake that accrued prior to the termination and any other amounts owed by you under the Agreement.
8. CAKE’S Rights to Modify the Agreement or Services
Cake may change or add to the terms of the Agreement at any time through the processes described in the applicable portions of the Agreement (“Agreement Change”). If a change to the Agreement materially modifies your rights or obligations, you will have to accept the modified Agreement to continue to use the Services. Please check the Agreement periodically for changes. You understand the importance of regularly reviewing these Terms and other portions of the Agreement as updated on the relevant Site or App. Agreement Changes that are material are effective upon your acceptance of the modified Agreement. Use of the Services after notice of any Agreement Change will confirm that accepted the modifications to the Agreement. Agreement Changes that are immaterial are effective upon publication. Notwithstanding the foregoing, (a) any dispute between the parties that arose before the effective date of an Agreement Change is governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose and (b) if an Agreement Change negatively and materially impacts your rights under the Agreement, and Cake does not waive the applicability of those changes to you, you may terminate the Agreement by providing written notice of termination to Cake. Your notice must be given within 30 days following the date of notice by Cake of the Agreement Change (through posting on the Sites, Apps, or otherwise).
We reserve the right to modify or discontinue any part of the Services (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. We will have no liability because of any change to the Services or any suspension or termination of your access to or use of the Services.
9. How Other Policies Form the Agreement
These Terms incorporate certain of Cake’s policies generally applicable to users of the Sites and Apps as well specific agreements relating to portions of the Services as described below. These Terms together with those policies and Services-specific agreements (as applicable) together constitute all the terms and conditions agreed upon between you and Cake and supersede any prior agreements in relation to the subject matter of the Agreement, other than a signed, written agreement between you and Cake relating to the applicable portion of the Services that is the subject matter of the Agreement. The Agreement will govern any updates to the Services provided to you by Cake that replace or supplement the Services, unless the upgrade is accompanied by a separate agreement, in which case the terms of that separate agreement will govern.
General Policies. You may access the policies described below at the Sites and you represent that you have and read and agree to all provisions of those policies and understand they are incorporated by reference into these Terms. The policies are as follows:
- Return and Refund Policy. Cake’s return policy is this: if there are problems with an order with a Restaurant promoted on any Services, please contact the Restaurant directly as it — not Cake — is solely liable for pricing and fulfilling any orders. Note, however, that in the case of problems with a charge to your credit card by Cake (and not a Restaurant or other third party), please notify us at email@example.com immediately to report the problem. All refunds are governed by the refund policies of the restaurant from which you ordered. If you contact us with a refund request, we will not process any refund until we receive the consent of the applicable restaurant. Credits or adjustments in connection with refunds or cancelled orders involve banks and card networks and can take up to 7–10 days to appear in your bank account.
Services-Specific Agreements. Certain aspects of the Services may be governed by separate terms or agreements applicable only to that aspect of the Services. Some of those terms and agreements are set forth below. If you do not use that aspect of the Services, that agreement may not be relevant to you. In that case, if there is any conflict between that specific agreement and the rest of the Agreement, the rest of the Agreement will control.
- Cake Gift Card Agreement. Cake Gift Cards is a service that may be available to you at participating Restaurants. Please refer to the Cake Gift Card Consumer Terms and Conditions for more information about the terms, conditions and policies, which are incorporated into these Terms by reference, that apply to the use of the Cake Gift Cards service.
- Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services we may post on or link to from any of the Services (the “Additional Terms”), such as license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Services, subject to Section 8. All Additional Terms are incorporated by this reference into, and made a part of, the Agreement, to the extent they relate to portions of the Service you access or use.“
Any additional or different terms or conditions other than the Agreement in relation to the subject matter of the Agreement in any oral communication from you to Cake or any written communication from you to Cake not signed by both you and Cake are void. You represent that you have not accepted the Agreement in reliance on any oral or written representations made by Cake not contained in the Agreement.
10. IP Rights and Licenses
Ownership of the Services. The Services and the content residing thereon are owned by Cake (formerly Leapset) or its affiliates or business partners, including Restaurants. Such content includes, without limitation, the text, software, scripts, graphics, photos, sounds, interactive features, visual interfaces, design, compilation, information, data, computer code (including source code or object code), products, services, and the trademarks, service marks, and logos contained in the Services (“Cake Content”). Cake Content is subject to copyright, trademark, and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and international conventions. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to Cake or the Services will, as between you and Cake, be and remain the sole and exclusive property of Cake.
For the avoidance of doubt, (a) certain menu or other description information displayed on the Services may be the property of the applicable Restaurant or its licensors and protected by intellectual property laws and (b) the trademarks, service marks, designs, and logos of Restaurants displayed on the Services may be the registered and unregistered trademarks of those Restaurants and their licensors. Your use of any of the foregoing intellectual property, except as provided in the Agreement, is strictly prohibited without the authorization of the Restaurant or their licensors.
Cake grants no license to you under any of the above described IP rights by virtue of the Agreement, except for the conditional right to use the Services.
License Grant to You. The Services are licensed, not sold, to you for use only under the terms of the Agreement. Subject to your complete and ongoing compliance with the terms and conditions of the Agreement, Cake grants you a personal, limited, revocable, non-transferable license to: (a) use the App on devices you own or control; and (b) access and use the Sites, in both instances solely for your own use or for the entity on whose behalf you are authorized to act.
License Limitations. You may not modify, alter, reproduce, or distribute the App. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Services. If you breach any license restrictions or other restrictions on use of the Services, or otherwise exceed the scope of the licenses granted in the Agreement, then you may be subject to prosecution and damages, and liability for infringement of intellectual property rights, and denial of access to the Services.
11. Consent to Arbitrate and Waiver of Class Action
This Section requires that claims or disputes arising out of the Agreement that cannot be negotiated to resolution be generally resolved through arbitration (and not by the courts). Please read it carefully. This Section survives termination of these Terms.
Initiating a Claim. We want our users to have an excellent experience so we encourage you to contact our customer support team if you have concerns regarding the operation of the Services or Cake. If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes in this Section.
General. To resolve disputes between you and Cake in the most expedient and cost effective manner, you and Cake agree that every dispute arising in connection with the Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can generally award the same damages and relief that a court can award. The Agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE AGREEMENT, YOU AND CAKE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Cake will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cake.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). Cake’s address for Notice is: Cake Corporation, 101 Redwood Shores Pkwy, Suite 200, Redwood City, CA 94065. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Cake may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cake must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Cake will pay you the highest of : (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Cake in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
Fees. If you commence arbitration under the Agreement, Cake will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, You may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you will reimburse Cake for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND CAKE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cake agree otherwise, the arbitrator may not consolidate more than one individual’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Cake changes this arbitration provision, other than a change to Cake’s address for Notice, you may reject the change by sending Cake written notice within 30 days of the change to Cake’s address for Notice, in which case your account with Cake will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If this Section 11 is found to be unenforceable or if this entire Section 11 is found to be unenforceable, then this entire Section 11 is null and void, the remaining provisions of these Terms will remain in effect under the “Severability” clause in Section 14 below, and the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to the Agreement.
12. Limitation of Liability
Generally. Please read this Section carefully since it limits the liability of the Cake Entities. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Nothing in this Section is intended to limit any rights you may have that may not be lawfully limited.
Limitation of Liability. NO CAKE ENTITY WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT ARISE FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES OR OTHERWISE ARISE IN CONNECTION WITH THE AGREEMENT WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CAKE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. UNDER NO CIRCUMSTANCES WILL ANY CAKE ENTITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT, OR THE INFORMATION CONTAINED IN YOUR ACCOUNT OR ACCESSIBLE VIA THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE CAKE ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR (a) ANY LOSS OF PAYMENT TRANSACTIONS OR LOSS OF DATA, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF ANY SERVICES, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF CAKE’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED ON THOSE SYSTEMS, (d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (f) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT MADE AVAILABLE VIA THE SERVICES, (g) YOUR CONTENT, OR (h) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
EXCEPT AS PROVIDED IN PART (iii) OF THE “Notice; Process” SECTION OF SECTION 11, NO CAKE ENTITY OR ANY OF THEIR PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) WILL BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF (a) THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID BY YOU TO CAKE PURSUANT TO THE AGREEMENT FOR THE APPLICABLE SERVICES RELATING TO THE CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN THE SIX MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY, OR (b) $100.
YOU RECOGNIZE AND CONFIRM THAT IF YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES THAT ARISE OUT OF THE SERVICES OR ANY CAKE ENTITY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION, OR EXPLOITATION OF THE SERVICES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YOU ALSO WAIVE ANY PROTECTION THAT MAY EXIST UNDER ANY COMPARABLE OR SIMILAR STATUTES OR PRINCIPLES OF COMMON LAW APPLICABLE IN STATES OTHER THAN CALIFORNIA.
EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY CARRIER, THIRD PARTY PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICES, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE CAKE ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
13. Digital Millenium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Services, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
101 Redwood Shores Pkwy
Redwood City, California 94065 USA
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Services is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. Cake will promptly terminate without notice the accounts of users that are determined by Cake to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Media removed from the Services at least twice.
14. Dreary Miscellaneous Terms That Are Still Important
This Section may be laborious to read but it is an essential part of the understanding between Cake and you. Cake’s ability to make the services it provides to its users depends on structuring the engagement on terms that meet Cake’s internal risk tolerance requirements. While we are sympathetic if you cannot agree to any of the Agreement, including the terms in this Section, you may not use the Services if you make that decision. In that event, however, we want to hear from you, so please contact us at firstname.lastname@example.org if you find the Agreement prohibitively restrictive.
Disclosures and Notices and E-Sign Consent. Cake may provide disclosures and notices regarding the Services, the Agreement, or your account to you electronically by posting it to one of the Sites, or by emailing it to an email address listed in your user account. Those electronic disclosures and notices will have the same meaning and effect as if you were provided with physical copies. Those disclosures and notices are considered received by you within 48 hours of the time posted or emailed to you unless Cake receives notice of non-delivery. Review the applicable Site or App regularly to review the prevailing disclosures and notices and check for updates. You will keep email address(es) valid and active and to monitor your email account(s). Cake will not be liable to you or any third party for any losses resulting from your failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, contact email@example.com
Recording Calls. To the extent permitted by law Cake may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Cake or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Cake may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Cake, and Cake does not guarantee that recordings of any telephone calls will be retained or retrievable.
Disclaimers. THE SERVICES AND OTHER MATERIALS OR TECHNOLOGY MADE AVAILABLE BY CAKE TO YOU UNDER THE AGREEMENT, THROUGH THE SERVICES, OR PROVIDED INCIDENTALLY TO THE AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND THE CAKE ENTITIES HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTY REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE). YOUR ACCESS TO AND USE OF THE SERVICES, ANY WEBSITES OR MATERIALS LINKED TO ANY SERVICES IS AT YOUR OWN RISK. THE CAKE ENTITIES DO NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE CAKE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE CAKE ENTITIES OR THE SERVICES. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, YOUR DEALING WITH ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF RELATED MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Indemnification. You will defend, indemnify, and hold harmless the Cake Entities against all claims, liabilities, damages, losses, expenses, tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees and costs) arising out of or connected with any claim, action, audit, investigation, inquiry, or other proceeding instituted by an individual or entity that arises out of or relates to: (a) your access to, use of, or alleged use of, the Services, including your interaction with any entity that advertises or promotes offers on the Services; (b) any actual or alleged violation of your representations, warranties, agreements, or obligations referenced in the Agreement or any applicable law or regulation; (c) any actual or alleged violation by you of Cake’s policies or applicable policies of its business partners or payment card association rules; (d) wrongful or improper use of any Services by or on behalf of you; (e) your violation of any rights of a third party, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (f) your violation of any federal, state, or local law, rule, or regulation, including any applicable data privacy or security laws, any laws governing gift cards, and any law or regulation governing the use or sale of alcohol; and (g) any dispute or issue between you and any third party, including a Restaurant. Cake maintains the right to control its own defense and to choose its own legal counsel in any matter subject to the foregoing indemnification, and you will cooperate with Cake’s defense of the claim.
Assignment. This Agreement, and any rights or obligations hereunder, may not be transferred or assigned by you without Cake’s prior written consent, but may be assigned or transferred by Cake without restriction.
Excused Non-Performance. Cake will not be liable or responsible to you, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and if failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Cake including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Entire Agreement. The Agreement, along with any applicable policies and agreements made available at any Site or App incorporated into the Agreement by express reference and any exhibits, appendices, addenda, schedules, and amendments explicitly made to the Agreement, sets forth the entire understanding between you and Cake regarding your use of the Services, and supersedes all other agreements, oral or in writing related to the Services, unless made in writing and expressly incorporated into the Agreement.
Waiver. No waiver by any party of any of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or exercising any other right, remedy, power, or privilege. NOTHING IN THE AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, that invalidity, illegality, or unenforceability will affect no other term or provision or invalidate or render unenforceable that term or provision in any other jurisdiction.
Governing Law. The Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles that would cause the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under the Agreement, then you and Cake will submit to the personal and exclusive jurisdiction of the state courts and federal courts within San Francisco, California to litigate any dispute.
Interpretation. Section headings are used in the Agreement for convenience of reference only and will not affect the meaning of any provision of the Agreement. For purposes of the Agreement: (a) the words “include,” “includes,” and “including” will be deemed followed by the words “without limitation”; (b) the words “such as,” “for example,” “e.g.,” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; and (c) the word “or” is used in the inclusive sense of “or” and the terms “or,” “any,” and “either” are not exclusive. No ambiguity will be construed against any party based on a claim that the party drafted the language.
Special Notice for California Residents. Pursuant to California Civil Code Section 1789.3, if you have any questions about pricing, complaints, or inquiries about Cake or its services please contact us at firstname.lastname@example.org or via certified mail at:
101 Redwood Shores Pkwy
Redwood City, California 94065 USA
Attention: Customer Support
California residents are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by telephone at (800) 952-5210 or in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834.
15. Notice Regarding Apple
If you are using our Apps on an iOS device, the terms of this Section 15 apply. You acknowledge that the Agreement is between you and Cake only, not with Apple, and Apple is not responsible for the Services or their content. Apple has no obligation to furnish any maintenance or support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claim by you or any third party relating to the Services or your possession or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third party claim that the Services or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of Section 15 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 15 of these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services we may post on or link to from any of the Services (the “Additional Terms”), such as license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Services, subject to Section 8. All Additional Terms are incorporated by this reference into, and made a part of, the Agreement, to the extent they relate to portions of the Service you access or use.