Terms & Conditions
Terms & Conditions
Updated June 1, 2020
In General, Yamika LLC owns and operates Organic Mobile Chefs. This document governs your relationship with www.organicmobilechefs.com (“Website”).
By accessing or using the Website, available through Organic Mobile Chef or our subsidiaries or other affiliates (collectively, “Organic Mobile Chef,” “we,” “us” or “our”) are subject to the following terms, conditions and notices (“Terms”) you agree to be bound by these Terms and all of the terms incorporated herein by reference, including our Privacy Policy. If you do not agree to these Terms, you may not access or use the Sites or order, receive or use meal plans, private culinarians, the meal ingredients or other products made available through the Sites (collectively, the “Services”).
These Terms are important and influence your legal rights, so please read them carefully. Note that Section 16 of these Terms contains a mandatory arbitration arrangement that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputies.
These Terms do not modify in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Website on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
Organic Mobile Chef have the right to change or modify these Terms at any time. If we make changes to these Terms, we will give warning of such changes, such as by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. By using the Website, you are agreeing to the revised Terms and all of the updates by us from time to time. You should check this page regularly to take notice of any changes we may have made to the Terms. If you do not agree to the Terms, you may not access or use the Website.
1. Privacy Policy
Please refer to our Privacy Policy for information about how we will use your information. By using this Website, you consent to the processing described therein & warrant that all data provided by you is accurate.
2. Eligibility
The Website is not designed toward or intended for use by anyone under the age of 18. By using the Website, you represent and warrant that you
(1) are 18 years of age or older
(2) are a legal resident of the United States
(3) do not have more than one Organic Mobile Chef account
(4) have not been previously suspended or removed from the Website, or engaged in any activity that could result in suspension or removal from the Website
(5) have full power and authority behalf of a company or other organization to enter into these Terms and in so doing will not infringe any other agreement to which you are a party
Periodically, we run trail test for new products, services, features, performances, and user relations that we may look upon to ingrate into our Website. We have the right to include or exclude you from these trail tests without notice.
3. Our Contract
3.1 Registration
Certain areas or features of the Website need prior registration to have full access. If you decide to have full access, you will need to register for an Organic Mobile Chefs account.
3.2 User Account
We have the right to deny you to use a username, email address or screen name that is already being used by another individual; that may be construed as impersonating another individual; that belongs to another individual; that violates the intellectual property or the rights of any individual; that is offensive; or that we reject for any other reason for our own reasons.
When you create an account, you will be required to provide certain personal information.
You agree to
(1) provide information that will true, complete and accurate
(2) update information promptly when it changes
(3) protect the security of your account credentials
(4) be responsible of any third-party acts who has permission to access the Website on your behalf
(5) promptly notify us if you find or otherwise suspect any security breaches related to the Website or your account.
We have the right to suspend or terminate your right to access any material for which registration is required if we suspect your information provided is inaccurate or incomplete.
3.3 Communication Preferences
By registering for a Organic Mobile Chef account, you specifically consent to accept and receive electronic communications from Organic Mobile Chef including, but not limited, to via emails, calls, mail or by posting notices to the Website. These communications may include notices about your account including, but not limited, to payment authorizations, password changes, confirmation about your services and other transactional information. You consent to that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should keep copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email or mail, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may decide to stop receiving these promotional marketing at any time by following the unsubscribe instructions provided in our communication or by contacting us.
4. Terms of Sale
4.1 Services
We currently offer various groups of types of services “Services” for our organic recipes, ingredients, plans, tools and receive a personal experience.
(a) Meal Plan “Meal Plan”
(b) Mobile Chef “Mobile Chef”
(c) Mobile Prep, Mobile Plate, Mobile Combo and Mobile Lunch “Mobile Plan”
(d) Personal food shopper “Shopper”
(e) personal food budgeting “Food Planning”.
We currently only distribute in Manhattan and parts of Brooklyn. If we change the prices or other charges associated for any of our Services, we will notify you according to our communication preferences and post it on our Website. Please visit the Website for updates on deliver in your area. For more information about any of our Services please visit our FAQs.
a. Meal Plan
The total amount of recipes and grocery list for meals you receive and the price you are charged may change weekly depending on the Meal Plan preferences you selected.
b. Mobile Chef
The total amount of hours a Mobile Chef will work and the price you are charged may change weekly depending on the Mobile Chef package you selected. Each package selection expires in twenty-one (21) days from the date of purchase. Your first Mobile Chef appointment may be a minimum of two hours and thirty minutes. Please refer to FAQs for more details.
Organic Mobile Chefs checks the backgrounds of each Mobile Chef via third party background check Services. However, you should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person who you do not know. By purchasing a Mobile Chef package from Organic Mobile Chefs, you agree the hold Organic Mobile Chefs free from the responsibility for any liability or damage that might arise out of the Mobile Chef. Organic Mobile Chefs is not responsible for the conduct, whether online or offline, of any user including professionals, and will not be liable for any claim, injury or damage arising in connection with any Mobile Chef.
b 1. Mobile Guarantee
I. Organic Mobile Chefs provides certain limited additional protections for Mobile Chef. Pursuant to the Mobile Guarantee and subject to the below terms and conditions and limitations, Organic Mobile Chefs will compensate you
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Subject to the exclusions below, up to USD $2,000 per occurrence for losses arising from property damage as direct result of negligence of a Mobile Chef during performance of service or
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Provided, however, for losses arising from damages to floors and items containing granite, marble or any stone work as a direct negligence of Mobile Chef during performance of service the amount shall be limit up to USD $1,000 0r
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Subject to the exclusions below up to the USD $2,000, in the aggregate, for losses arising from theft of your property by a Mobile Chef during performance of service.
You are eligible for the Mobile Guarantee provided that a report of the issue is made within seventy-two (72) hours of your Mobile Chef appointment to our Website at www.organicmobilechefs.com/help If you do not report the issue within seventy-two (72) hours of your Mobile Chef appointment, the claim is ineligible for Mobile Guarantee. Each Mobile Chef appointment is treated as a separate occurrence.
II. If you carry insurance that would cover you in the event of a claim, such as renter’s insurance, homeowner’s insurance or an umbrella policy (“Personal Insurance”), You agree that your Personal Insurance is the primary and the Mobile Guarantee is secondary. The Mobile Guarantee will only compensate for losses to the extent not otherwise covered by your Personal Insurance and only as permitted herein.
III. You will be covered under the Mobile Guarantee for Mobile Chef, subject to the exclusions in subsection (IV) below, provided:
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You have not violated this agreement
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You reported the claim within 72 hours of your Mobile Chef appointment
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Your account is in good standing with no outstanding balances
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You have identified fragile and other breakable items and communicated the location and identity of those items to the Mobile Chef prior to start of the Mobile Chef appointment
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You are accounted for and secured all valuables prior to the start of your Mobile Chef appointment
IV. Mobile Guarantee does not cover the following:
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Merchandise
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Loses arising out of acts of nature, including, but not limited to, pollution, earthquakes, snowstorms, and weather-related events such as hurricanes and tornadoes
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Losses arising out of interruption of business, loss of market, loss of income and/or loss of use
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Losses for property damage and theft exceeding the original value and/or replacement value for such property, less any standard depreciation
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Losses arising from the acts or omissions of you or third party
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Losses arising from the negligence or misconduct of a third party
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Losses arising from the manufacturer’s or a product’s defects
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Losses from pre-existing damages or conditions of the items or property
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Losses arising from products or items supplies by the you or due to your recommendations
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Loses arising from flooding and/or water damage including mold, fungi or bacteria
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Losses arising from products containing hazardous or harmful materials, acts of terrorism, product liability or pollution
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Losses of cash, third party gift cards and securities
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Losses as result of an intentional wrongful act by a Mobile Chef
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Losses arising from normal wear and tear
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Losses for items that retain their functionality
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Losses for fine arts, which includes but is not limited to paintings, etchings, etchings, printed photos, pictures, tapestries, rare or art glass, valuable rugs, statuary, sculptures, antique furniture, antique jewelry, bric-a-brac, porcelains, coins, stamps, other collectibles collections, furs, jewelry, precious stones, precious metals, and similar property of rarity, historical value
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Losses for damage beyond the specific damaged area (e.g., should flooring sustain damage, any loss is limited to the replacement cost of the square footage that was damaged after deducting for obsolescence and physical depreciation)
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Loss of use damages, including without limitation, loss of use such as property, appliances, furniture and the costs of any storage, movement and insurance of furniture or appliance in connection with loss of use
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Losses excluded pursuant to Section 14.2 of the Agreement
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Losses based on sentimental and/or undocumented intangible value
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Losses or damages associated with the unauthorized acquisition of, access to, destruction of, and/or loss of electronic data, including but not limited to films, records, manuscripts, drawings or photographs, data, information, audio or video recordings, files, facts, programs or other materials stored as or on, created or used on, or transmitted to or from, computer software, including systems and applications software, hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices, cloud storage, or any other media which are used with electronically-controlled equipment
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Losses of pets, personal liability or damage to shared or common areas
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Losses arising from shipping costs and/or shipping of replacement items and/or taxes incurred in purchasing the original and/or replacement items
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Losses of theft without a valid police report, if requested by Organic Mobile Chefs; and losses with insufficient documentation
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Losses occurring after, or unrelated to, the performance of a Mobile Chef
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Losses involving products or services, or uses of either, that are prohibited by law
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Losses due to unforeseeable or latent defects in the premises
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Losses related to services not explicitly booked with Organic Mobile Chefs
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Losses reported by third partie
V. Report Your Claim
You must report your claim within 72 hours from when your Mobile Chef appointment occurs. Each Mobile Chef appointment is treated as a separate occurrence. Even if you purchased a package of hours.
After the first report, you will be asked to complete the full claim form within 7 days of receipt. If you do not complete the claim form in its entirety within 7 days of receipt, your claim will no longer be eligible for the Mobile Guarantee. We urge you to read through these terms and conditions prior to submitting a claim. All claims will be reviewed on a case-by-case basis. During Organic Mobile Chefs’ claims assessment process, you may be required to provide written detailed
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Proof of ownership of damaged/missing item
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Proof of value of damaged/missing item
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Proof of damage or loss
If such information is requested, you will have 30 days from the date orequest to send the requested information to Organic Mobile Chefs. If you fail to provide the requested information with the 30 day time period and/or fail to contact Organic Mobile Chefs to arrange an extension of time, your claim will considered closed and no longer eligible for the Mobile Guarantee.
Furthermore, you agree to
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Protect and preserve any damaged property that is the basis of a claim further damage
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Assist and allow Organic Mobile Chefs or its insurers access to inspect and make copies, photographs and recordings of anything relating to the claim
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Accept a replacement item subject to the standard depreciation of that item
If any part of your claim is approved, then as a condition to any payment to you under the Mobile Guarantee, You will be required to execute and deliver to Organic Mobile Chefs the release agreement within 14 days of receipt of the release agreement from Organic Mobile Chefs, and assign to Organic Mobile Chefs or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an approved claim from any party that is financially responsible for the approve claims and any rights in any property that is recovered. The release agreement shall be rescinded and considered null and void if not signed and returned to Organic Mobile Chefs within 14 days of Your receipt and the claim shall no longer shall be eligible for the Mobile Guarantee.
c. Mobile Plans
The total amount of meals you receive and the price you are charged may change weekly depending on the Meal Plan preferences you selected. Each package selection expires in twenty-one (21) days from the date of purchase.
d. Shopper
The total amount of hours a Shopper will work and the price you are charged may change weekly depending on the Shopper package you selected. Each package selection expires in twenty-one (21) days from the date of purchase. Organic Mobile Chefs checks the backgrounds of Shopper via third party background check Services. However, you should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person who you do not know. By purchasing a Shopper package from Organic Mobile Chefs, you agree the hold Organic Mobile Chefs free from the responsibility for any liability or damage that might arise out of the Shopper. Organic Mobile Chefs is not responsible for the conduct, whether online or offline, of any user including professionals, and will not be liable for any claim, injury or damage arising in connection with any Shopper.
e. Food Planning
The total amount of hours of planning in Food Planning and the price you are charged is based on the Food Planning package you selected. Each package selection expires in twenty-one (21) days from the date of purchase.
4.2 Membership fee
WHEN YOU REGISTER FOR MOBILE PLANS YOU SPECIFICALLY ACCEPT AND AGREE TO THE FOLLOWING
(1) ORGANIC MOBILE CHEFS (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU A CONTINUOUS MEMBERSHIP MONTHLY FEE (IN ADDITION TO TAXES AND OTHER CHARGES) AS LONG AS YOUR ACCOUNT IS ACTIVE. THE MEMBERSHIP MONTHLY FEE WILL APPLY TO DELIVERY AND MAINTENANCE FEE.
(2) YOU WILL BE CHARGED $40 EVERY FIRST OF THE MONTH
(3) YOUR ACCOUNT IS ACTIVE CONTINUOUS YOU CANCEL IT OR WE SUSPEND
4.3 Cancellation Policy
YOU MAY CANCEL YOUR ACCOUNT AT ANY TIME BY CONTACTING CUSTOMER SERVICE. ANY ORDER LABELED AS “ORDERED PROCESSED” OR “OUT FOR DELIVERY” ON YOUR UPCOMING PAGE HAS BEEN PROCESSED AND CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES INCLUDING TAXES AND OTHER CHARGES OBTAIN WITH ANY ORDER PROCESSED PRIOR TO CANCELLATION OF YOUR ACCOUNT.
You may still receive promotional communications from Organic Mobile Chefs if your account is canceled. You may opt out of these promotional communications by following the unsubscribe instructions provided.
4.4 Gift Cards
Organic Mobile Chefs periodically may offer gift cards “Gift Cards”. When you purchase or redeem a gift card, you agree to following applicable terms and conditions that may change without notice
(1) Gift Cards have no cash value and are not redeemed for cash unless legally required
(2) Gift Cards must be presented at the time of purchase and any available balance will be apply to your purchase
(3) Gift Cards expires 90 days after purchase
(4) Gift Cards are not replaceable if lost or stolen, and cannot be combined with any other Gift Cards
(5) Gift Cards cannot be used to previous purchases
(6) Gift Cards cannot be used to purchase Gift Cards
(7) We reserve the right to limit the number of purchases of Gift Cards by one person or entity and cancel a Gift Cards if we believe the balance was obtained through fraudulent or unauthorized means. Specifically, if you may purchase or obtain more than $5,000 in Gift Cards value in one day regardless of location or the number of Gift Cards. Furthermore, you may not purchase or obtain no more than $2,000 in Gift Cards value in any day
(8) Gift Cards are voided if copied, altered or transferred
(9) Gift Cards purchases made with a Gift Cards are final and nonrefundable. All sales are final
(10) We reserve the right to correct the balance of a Gift Cards if we believe there is a billing error and we deny all liability for such billing errors
4.5 Free Trails
Organic Mobile Chefs periodically may offer free trails of specified Services for certain periods of time without payment in which we are legally permitted. Free trails are limited to one (1) per household. If we provide you a free trail, the terms & conditions of your free trial will be offered in the marketing materials detailing the trail or at registration.
WHEN YOUR FREE TRIAL ENDS, WE OR OUR THIRD-PARTY PAYMENT PROCESSOR WILL BEGIN BILLING YOUR ASSIGNED PAYMENT METHOD ON A RECURRING BASIS FOR CONTINUOUS MEMBERSHIP MONTHLY FEE BASED ON MOBILE PLANS PLUS TAXES AND OTHER CHARGES AS LONG AS YOUR ACCOUNT IS ACTIVE. UNLESS YOU CANCEL YOUR ACCOUNT BEFORE THE FREE TRIAL ENDS. INSTRUCTIONS FOR CANCELING YOUR ACCOUNT IS DETAILED IN SECTION 4.3 ABOVE. YOU WILL NOT RECEIVE ANY NOTICE FROM ORGANIC MOBILE CHEFS ABOUT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF MOBILE PLANS HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY, CHANGE OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR DECISION.
4.6 Mobile Market
Our Mobile Market is an online marketplace where you can buy organic and natural food. Along with ecofriendly and BPA free household, kitchen, bakeware, cookware and other products from us.
4.7 Payment and Billing Information
You are required to pay in advance for any Services you order from Organic Mobile Chefs. You will provide Organic Mobile Chefs with a valid and updated credit card information or other payment method in which we accept. By accepting this agreement, you authorize us or a third-party payment processor permission to charge your credit card or other payment method on file for fees including taxes and other charges owe to Organic Mobile Chefs. Depending on your Services you select or promotional offers, we may charge you a one-time fee or recurring fee. Please refer to Section 4.2 for our recurring membership fee.
If you want to change or update your payment method information, you can log into your account at any time to do so. You are responsible for any unpaid fees and authorize us to continue billing the payment method on file if there is a balance and your account is active.
We will use commercial reasonable attempts to safeguard the security of all credit card and all other personal information. However, we deny any liability for any damages that may result should any information be released to any third parties and you agree to hold us harmless for any damages that may result from it.
4.8 Pricing and availability
a. Pricing
Although, we try and ensure that all details, descriptions and prices which appear on our Website are accurate and display in U.S. dollars and taxes and other charges (if any), are additional and may occur errors. If we discover an error in any price of Services which you have ordered we will inform you of this as soon as possible and give you the option of reconfirming your order at the correct price or cancelling it. If we are unable to contact you we will treat the order as cancelled. If your order is cancel by us or you, you will receive a store credit. We may change prices for Services at any time without notice. However, if we impose additional fees or charges to Services, we will provide you with an advance notice according to Section 3.3. Please note that we will not notify of changes in any applicable taxes.
b. Availability
All of our Services are based on availability and without advanced notice, we may be required any of the following changes to your purchase;
(1) limit quantities
(2) discontinue offering certain Services and substitute Services including, but not limited to changes to Mobile Plans with a particular organic ingredient or entire meals)
(3) reject all or part of a purchase
Our goal is to provide you with the best organic ingredients for our Mobile Plans. However, we may need to substitute occasionally because certain perishable organic ingredients and market conditions beyond our control. If you are not happy with a substitution, please contact us at contact@organicmobilechefs.com
4.9 Taxes
We will collect sales tax on Services. You agree that the amount of taxes shown at the checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.10 Deliveries
You are liable for examining all organic ingredients we deliver to you for any damage or other issues and deciding the freshness of each ingredient. We suggest that you use a thermometer to confirm that the internal temperature of any meat, poultry or seafood Product is 40° F or below. In the unlikely event that such temperature is above 40° F, or you have any other reason to believe that any other organic ingredient in your purchase is not appropriate to consume, contact us at contact@organicmobilechefs.com and discard the item. To keep the quality of the organic ingredients, we suggest that you promptly refrigerate all perishable organic ingredients upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety. We suggest that you follow the USDA’s instructions on safe food handling. We also suggest that you use a food thermometer to confirm that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures. Failure to follow safe food handling practices and temperature suggestions may increase the risk of foodborne illness. Also, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s suggestions on food consumption for at-risk groups. Complete USDA information may be found here.
If there is inclement weather or other events beyond our control that interrupts your purchase from being delivered, we will try to deliver your purchase as soon as reasonably possible.
4.11 No Resale
You are not allowed to resell or otherwise use the Products for commercial purposes without permission.
4.12 Returns, Replacements, Refunds, and Credits
If you are not satisfied with any of our Services for any reason, please contact us within seven (7) days of the day you receive your purchase at contact@organicmobilechefs.com. We have the right to pay for a replacement same type of Service, give you full or partial refund of your Service purchase price, or give you Credits that will automatically be applied to your account and can use for any Services.
If you receive a damaged Service, we may ask you to photographic document any damages before you give any replacement, refund or Credit to prove your dissatisfaction.
If you are not satisfied with any non-food item you purchased through the Mobile Market, you may return such item within twenty-one (21) days of the date you received your item by contacting market@organicmobilechefs.com and following the shipping directions we provide. All returned items must be unused and in their original packaging. We will not issue a refund or Credit for the item’s price minus the taxes and shipping and handling fees until we receive your returned item.
Credits are only available if your Organic Mobile Chefs account is active. If you cancel your Organic Mobile Chefs account, any remaining Credits balance in your cancelled account will immediately expire. You may only redeem Credits after they are applied to your Organic Mobile Chefs account. If for some reason you believe that there is a disagreement about your Credit balance, please contact us at contact@organicmobilechefs.com. We have the right to make all final decisions about your Credit balance.
5. Intellectual Property, Software, Content and Trademark
The intellectual property rights in all software, content, logo, service marks, slogans, designs, text, graphics, sound files, information, data, the Organic Mobile Chefs logo, User Content as stated in Section 10, other files and the selection and agreement made available to you on this Website remains the property of Organic Mobile Chefs or its licensors and are protected by United States copyright laws, trademark law, international conventions and other intellectual property laws around the world unless otherwise stated in writing by us.
All such rights are reserved solely by Organic Mobile Chefs and its licensors. You are allowed limited nontransferable license based on these Terns access to the Website. You may store, print and display the content supplied solely for your own personal use. However, you are not permitted to publish, manipulate, distribute, download or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website nor may you use any such content in connection with any business or commercial enterprise. You are also not permitted to use any data mining, robots or similar data gathering or extraction methods.
If you use the Website for purposes not permitted without our prior written permission, the license is will terminate and may be a violation of applicable laws, including, but not limiting to copyright and trademark laws and applicable communications regulations and statues. This license may change at any time.
Nevertheless, there are Organic Mobile Chefs or third-party software sections on the Website are subject to different license terms, in which case those license terms will be directed by the software components. Regardless of these Terms or Website.
6. Copyright Complaints and Copyright Agent
Organic Mobile Chefs respects the intellectual property of others and expect users to do the same. We have implemented a policy of limiting access to the Website by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, any user who does not respects the intellectual property in according to the Digital Millennium Copyright Act and other applicable laws.
In the event that anything on the Website infringes any copyright or other intellectual property that you own or control, you may send a complaint to Organic Mobile Chefs to investigate to our designated agent below:
Email: legal@organicmobilechefs.com
Name of Designated Agent: General Counsel
Mailing address: Yamika Inc d/b/a Organic Mobile Chefs, 111 East 14th Street #238, New York, NY 10003
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
7. Hyperlinks
We give you limited nontransferable right to create a text hyperlink to the Website for noncommercial purposes, provided that such link does not portray Organic Mobile Chefs or any of our Services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Organic Mobile Chefs logo or other proprietary graphic of Organic Mobile Chefs to link to the Website without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Organic Mobile Chefs trademark, logo or other proprietary information, including the images found on the Website or Services, the content of any text or the layout or design of any page, or form contained on a page, on the Website without our express written consent.
Organic Mobile Chefs makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Website or of websites linking to the Website. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Website, you should be aware that our terms and policies no longer govern. You access at your own risk. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
8. Third Party Content
We may display content, advertisements and promotions from third parties through the Website or in shipments with Services (refer to “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
9. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit an offense, and that you are solely responsible for your conduct, while accessing or using the Website. You agree that you will abide by these Terms and will not
(1) Engage in any harassing, threatening, intimidating, predatory or stalking conduct
(2) Use or attempt to use another user’s account without authorization from such user and Organic Mobile Chefs
(3) Use the Website in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Website or that could damage, disable, overburden or impair the functioning of the Website in any manner
(4) Reverse engineer any aspect of the Website or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Website
(5) Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Website that you are not authorized to access
(6) Develop any third-party applications that interact with User Content or the Website without our prior written consent
(7) Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Website, extract data or otherwise interfere with or modify the rendering of Website pages or functionality
(8) Use the Website for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms
10. User Content
The Website may include interactive features and areas that permit users to create, post, share or store content, including, but not limited to, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (“User Content”). If you choose to share your User Content with others through the Website or third-party platforms, you understand that this User Content will be accessible by other user in according to your privacy settings. You agree that you are solely liable for your User Content and for your use of any interactive features and areas of the Website.
By using the interactive features and areas of the Website, you further agree not to create, post, share or store any of the following:
(1) User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable
(2) User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law
(3) User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party
(4) User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences
(5) User Content that impersonates, or misrepresents your affiliation with, any person or entity
(6) User Content that references or depicts Organic Mobile Chefs or our Services but fails to disclose a material connection to us, if you have one (for example, if you are a Organic Mobile Chefs employee or paid blogger)
(7) User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations
(8) User Content that contains any private or personal information of a third party without such third party’s consent
(9) User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content
(10) User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Organic Mobile Chefs or others to any harm or liability of any type
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Website at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Website at your sole cost and expense.
11. Rights in User Content
If you submit content you own, you hold ownership of your intellectual property rights. We do not claim any ownership in your User Content. However, by uploading, posting or submitting User Content to the Website or to our pages or feeds on third party social media platforms (e.g., Organic Mobile Chef’s Facebook page, Instagram page, Twitter feed), you with this give Organic Mobile Chefs a royalty-free, worldwide, uninterrupted, unalterable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Organic Mobile Chefs through the Website or through our pages or feeds on third party social media platforms, you represent and warrant that
(1) User Content is not confidential
(2) You own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content
(3) You authorize Organic Mobile Chefs to use such User Content for the purposes described in these Terms
(4) User Content is accurate and not misleading or harmful in any manner
(5) User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right
12. Submission Areas
Organic Mobile Chefs may contain blogs, applications, job postings, chat areas, or opportunities to submit questions, comments, suggestions, ideas, reviews, original or creative materials or other information about the Website or the Services (Submission Areas). Some areas in the Submission Areas on the Website will be public. Organic Mobile Chefs will not be responsible for any information or materials posted in such areas. We reserve the right to remove posting from the Submission Areas at our sole discretion.
Organic Mobile Chefs shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Submission Areas and shall be entitled to the unrestricted use and dissemination of this Submission Areas for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
14. Disclaimers, Limitation of Liability and Release
14. 1 Disclaimers
YOU ARE FULLY LIABLE FOR, AND ACCEPT ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND EATING OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO FULLY LIABLE FOR BEING AWARE ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND CHECKING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHERMORE, YOU KNOW, ACCEPT AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE TRY TO SHOW THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND LIMITATIONS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DIFFERENT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE WEBSITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ORGANIC MOBILE CHEFS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Website (or any features or functionality of the Website) and the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
14.2 Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ORGANIC MOBILE CHEFS PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE WEBSITE OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY ORGANIC MOBILE CHEFS PARTY, OR FROM EVENTS BEYOND THE ORGANIC MOBILE CHEFS PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE ORGANIC MOBILE CHEFS PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE ORGANIC MOBILE CHEFS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE ORGANIC MOBILE CHEFS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE SERVICES, OR USE OF MEAL INGREDIENTS, OR ACCESS OR USE OF THE WEBSITE OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE ORGANIC MOBILE CHEFS PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
14.2 Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE ORGANIC MOBILE CHEFS PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH ORGANIC MOBILE CHEFS PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.
THE LIMITATIONS SET FORTH IN THIS SECTION 14.2 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
15. Modifications to the Website and Services
We may choose to modify, suspend or discontinue, temporarily or permanently, the Website (or any features or parts thereof) or the provision of the Services at any time.
16. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ORGANIC MOBILE CHEFS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
16.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 9 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Organic Mobile Chefs agree to
(1) Waive your and Organic Mobile Chefs’ respective rights to have any and all Disputes arising from or related to these Terms, or the Website, Content or Services, resolved in a court
(2) Waive your and Organic Mobile Chefs’ respective rights to a jury trial
Instead, you and Organic Mobile Chefs agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
16.2. No Class Arbitrations, Class Actions or Representative Actions
You and Organic Mobile Chefs agree that any Dispute arising out of or related to these Terms or the Website, Content or Services is personal to you and Organic Mobile Chefs and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Organic Mobile Chefs agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Organic Mobile Chefs agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
16.3. Federal Arbitration Act
You and Organic Mobile Chefs agree that these Terms affect interstate commerce and that the enforceability of this Section 16 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
16.4. Notice; Informal Dispute Resolution
You and Organic Mobile Chefs agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Organic Mobile Chefs shall be sent by certified mail or courier to the following address with the attached information.
Attention: General Counsel
Mailing address: Yamika Inc d/b/a Organic Mobile Chefs 111 East 14th Street #238, New York, NY 10003
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Your notice must include the following
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Your name
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Your postal address
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Your telephone you use or used for your Organic Mobile Chefs account
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The email address you use or used for your Organic Mobile Chefs account
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If different, an email address at which you can be contacted
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A description in reasonable detail of the nature or basis of the Dispute
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The specific relief that you are seeking
Our notice to you will be sent electronically in accordance with Section 3 and will include the following
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Our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute
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A description in reasonable detail of the nature or basis of the Dispute
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The specific relief that we are seeking
If you and Organic Mobile Chefs cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Organic Mobile Chefs may, as appropriate and in accordance with this Section 16, commence an arbitration proceeding or, to the extent specifically provided for in Section 16.1, file a claim in court.
16.5. Process
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 9 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND ORGANIC MOBILE CHEFS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR ORGANIC MOBILE CHEFS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND ORGANIC MOBILE CHEFS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and Organic Mobile Chefs agree that
(1) Any arbitration will occur in the State of New York, County of New York, Borough of Manhattan
(2) Arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Service (“JAMS”), which are hereby incorporated by reference
(3) The state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award
You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
16.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have the following
(1) The exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable
(2) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms
The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
16.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either
(1) Acknowledge and agree that you have read and understand the rules of JAMS or
(2) Waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason
16.8. Severability
If any term, clause or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 16 will remain valid and enforceable. Further, the waivers set forth in Section 16.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
16.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by writing to: Yamika LLC d/b/a Organic Mobile Chefs, Attn: General Counsel, 111 East 14th Street #238, New York, NY 10003. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
17. Governing Law and Venue
These Terms, your access to and use of the Website and your order, receipt and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan.
18. Termination
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Website and to order, receive and use the Services, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
19. Severability
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
20. Survival
The following sections will survive the expiration or termination of these Terms and the termination of your Organic Mobile Chefs account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7 (second paragraph only), 8 through 21.
21. Miscellaneous
These Terms constitute the entire agreement between you and Organic Mobile Chefs relating to your access to and use of the Websites and your order, receipt and use of Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Organic Mobile Chefs. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Organic Mobile Chefs’ failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.