Terms of Service
SECTION 12 BELOW ENTITLED “BINDING INDIVIDUAL ARBITRATION” CONTAINS A MANDATORY ARBITRATION PROVISION. IT AFFECTS HOW DISPUTES WITH ALCHEMISTA ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
The following terms of service (the “TOS”) are a legal agreement between you (“you,” “your”) and Phoodeez, Inc. (d/b/a Alchemista) (collectively referred to herein as “Phoodeez”, “Alchemista”, “us”, “our” or “we”) and govern your use of Alchemista’s catering services, and other products and services provided by us (collectively, the “Services”). By accessing and/or using any of the Services you affirm that you are legally authorized to enter into the TOS on behalf of the entity or persons for whom we are to provide Services. You also agree to these TOS and any other policies referenced within, including acknowledging the Privacy Notice (“Policies”), including terms that limit our liability (see Section 17) and require individual arbitration for any potential legal dispute (see Section 19). You also agree to any additional terms applicable to specific Services and/or features that are a part of, or may be from time to time, made a part of, our Services (collectively, the “Additional Terms”). The Additional Terms and Policies are a part of these TOS and are expressly incorporated herein by this reference. If you do not agree to any of these TOS, you must cease use of Services.
REVISIONS, DISCLOSURES AND NOTICES
We may amend the TOS or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of our Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 19) that arose before the changes will be governed by the TOS or Policies in place when the Dispute arose.
Alchemista Food Programs:
Alchemista provides catering services and manages corporate food programs. Alchemista resells food purchased from Restaurants and offers delivery and set up of food ordered through Alchemista.
You are solely responsible for verifying the accuracy of your headcount, budget, dietary restrictions, food allergies, delivery address and time, and Alchemista will have no liability or responsibility for any such erroneous information.
You consent to accept and receive communications from us, including e-mail, text messages, and calls to the cellular telephone number you provide to us. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt out of receiving communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
FEES, CANCELLATIONS, HEADCOUNT CHANGES
You agree to pay all charges, fees and taxes, and any part thereof, when you purchase, use, or participate in a Service from Alchemista. All fees are exclusive of applicable taxes, unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the services provided to you. You agree to pay all invoices issued by Alchemista for the Services within 10 days of the date of issuance, unless otherwise agreed upon in writing by You and Alchemista. Alchemista may change the fees for the Service at any time. Cancellations are subject to our cancellation policy, as follows: You agree to pay all applicable charges for all orders cancelled by you within 50 hours before the scheduled delivery time. Requested increases and/or decreases in number of portions delivered per meal to accommodate changing headcount will be accommodated whenever possible, based on availability, and may result in additional charges and fees. Alchemista will be implementing a 7% service fee to all orders effective March 1, 2019.
CREDIT CARD OR OTHER PAYMENT SERVICE AUTHORIZATION
You may be asked to provide us with a payment card number from a card issuer or other payment information, as determined by us, in order to activate and/or pay for any fees related to the Service. When you provide this authorization, you acknowledge and agree that you are legally authorized to use the payment card to purchase Services from us. You acknowledge and agree that Alchemista will keep your card on file through a secure third party payment processor. For recurring orders, you authorize us to charge your card on file upon an invoice being sent to you. We may seek pre-authorization of your credit card or other payment information prior to a purchase to verify that the payment card or payment information is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement. By accepting these TOS, you will agree to place a card on for all future purchases.
You may terminate your account and/or stop using the Service at any time, except as otherwise stated in executed contracts that may exist with your company. To terminate your Service, contact your Alchemista Account Manager. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOS). Termination of your account will not relieve you of any obligation to pay any accrued fees or charges. We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Any such termination or suspension will be made by us in our sole discretion, without any refund to you of any prepaid fees or amounts, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
7. FORCE MAJEURE. Alchemista will not be in default or otherwise liable for any delay in or failure of its performance under this agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, severe weather, floods, fires, epidemics, riots, or any act or failure to act by Company, its employees, agents, or contractors (and of the foregoing, a “Force Majeure Event”). Alchemista shall have the right to cancel any order without liability therefore in the event that Alchemista or the applicable Food Purveyor is affected by a Force Majeure event such that completion of the order is not reasonably practicable.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALCHEMISTA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, ALCHEMISTA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE, INCLUDING FALSE, MISLEADING OR INACCURATE DIETARY, NUTRITIONAL OR ALLERGEN INFORMATION; AND (IV) ANY DEFECTS OR ERRORS IN THE VOUCHERS OR OTHER ITEMS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ALCHEMISTA OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ALCHEMISTA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF ALCHEMISTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL ALCHEMISTA’S LIABILITY IN CONNECTION WITH ANY SERVICE, INCLUDING ANY VOUCHER, EXCEED THE AMOUNT PAID FOR ANY SUCH SERVICE BY YOU.
You will defend, indemnify and hold Alchemista, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from and against any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your violation of any third-party right, including without limitation any right to privacy, publicity rights or Intellectual Property Rights, including Submissions you Distribute through the Services; (b) your wrongful or improper use of the Services; (c) any actual or alleged breach of your representations, warranties, and obligations set forth in these TOS; (d) your violation of any rights of another; and (e) your violation of any law, rule or regulation of the United States or any other country. This obligation will survive the termination or expiration of these TOS and/or your use of the Services. You are responsible for all use of the Services using your account, and that these TOS apply to any and all usage of your Member Account. You agree to comply with these TOS and to defend, indemnify and hold harmless Alchemista from and against any and all claims and demands arising from usage of your Member Account, whether or not such usage is expressly authorized by you.
“Disputes” are defined as any claim, controversy, or dispute between you and Alchemista, its partners (or their respective affiliates, agents, directors, or employees) including any claims relating in any way to these TOS, any Additional Terms, or the Services, or any other aspect of our relationship.
BINDING INDIVIDUAL ARBITRATION
You and Alchemista agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS,REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST ALCHEMISTA. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.The Federal Arbitration Act, 9 U.S.C. §§ 116, fully applies. Any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. We will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Alchemista also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in, and you consent to, the exclusive jurisdiction and venue in the state courts in the City and County of Boston, Massachusetts or federal court for the Massachusetts region.
These TOS and any Dispute will be governed by Massachusetts law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Massachusetts, without regard to its choice of law or conflicts of law principles.
LIMITATION ON TIME TO INITIATE A DISPUTE
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by your and any attempted transfer or assignment will be null and void.
These TOS and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Alchemista regarding the Services. In the event of a conflict between these TOS and any other Alchemista agreement or Policy, these TOS will prevail and control the subject matter of such conflict. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS or Additional Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Alchemista to exercise or enforce any right or provision of these TOS will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there will be no third-party beneficiaries to these TOS.