Effective Date: February 24, 2021
By using the Sites, you represent and warrant to us that 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, and your use of the Sites is and will comply with all applicable laws and regulations.
Please note that by using the Sites you (or, if applicable, your parent or guardian on your behalf) enter a legally binding contract with Cut+Dry based on the Terms (as updated from time to time). FURTHER THESE TERMS INCLUDE PROVISIONS (DESCRIBED IN MORE DETAIL BELOW) THAT LIMIT OUR LIABILITY AND REQUIRE INDIVIDUAL ARBITRATION FOR ANY POTENTIAL LEGAL DISPUTE.
“B2B Platform” means Cut+Dry’s mobile and web-based marketing and order facilitation platform that enables Restaurants to view, search for and submit orders for products made available by food service distributor entities (a “Supplier”).
“Consumer Market” means Cut+Dry’s mobile and web-based consumer online marketplace where customers can purchase products directly from Cut+Dry on a consumer basis for delivery to the customer.
“Restaurant” means the restaurant or retail business customer who uses the B2B Platform to view or place an order for Supplier products.
“Partner Supplier” means the subset of Suppliers that are contractually engaged with Cut+Dry to market and/or sell products wholesale to Restaurants or other end-customers through the B2B Platform.
Product Availability, Descriptions and Pricing
Cut+Dry aims to maintain the accuracy of information presented on the Sites, including pricing information and product descriptions and availability, however, all descriptions of products or product pricing and any promotional offers and other content available on the Sites are subject to modification by us in our discretion at any time without notice without any liability to you or any other person.
Cut+Dry and its Partner Suppliers (if applicable) do not guarantee that product descriptions (including any weights or coloring or dimensions) or other content associated with any product on the Sites is accurate, complete, reliable, or error-free. The products delivered may vary from the descriptions and portrayals on the Sites due to factors such as the availability and variability of product, packaging, manufacturing processes and raw materials. Additional e-commerce terms and conditions relating to refund, return, taxes, shipping may be provided at or near the point of purchase.
Consumer Market Restrictions
We reserve the right to refuse any order placed on the Consumer Market for any reason. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order and purchases from any geography or jurisdiction. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In addition, products may have limited quantities and product orders are nonrefundable unless otherwise agreed to by you and us. In the event that any product is listed at an incorrect price or with other incorrect information, we may decline or cancel any orders of such product, whether or not the order has been confirmed and/or your credit card charged. We may exercise this right on a case-by-case basis. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. Any offer for any product or service made on the Sites is void where prohibited.
To place an order through the Consumer Market, you must be of legal age and a consumer – not a reseller. The Consumer Market is intended solely for Cut+Dry to sell Cut+Dry products direct to end-consumers, and therefore purchase of products for resale is strictly prohibited. Purchase for resale means the purchase of a Cut+Dry product by someone who resells, or intends to resell, the Cut+Dry product to others (consumers, businesses or any third party). If Cut+Dry determines (in our sole judgment) that you are involved in purchase for resale on the Consumer Market, Cut+Dry reserves to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your account.
Without limiting any the foregoing or other terms set forth herein and subject to any notice and other limitations of applicable law Cut+Dry reserves the right to cancel orders without liability (other than a refund) if: the billing information is incorrect or unverifiable; the order is identified as potentially unauthorized; payment is not received within a reasonable period following acceptance of the order; we believe that you are a reseller; there was an error in the price displayed on the Consumer Market; we could not deliver to the address provided by you; due to an event of force majeure; or in the event of misspelling, pricing or other errors or mistakes in the Consumer Market information.
Payment Terms (Consumer Market)
You shall be responsible for the timely payment of all product orders together with applicable fees, including but not limited to delivery/shipment fees and taxes.
In order to place an order on the Consumer Market, you will need to a valid credit card or other payment account details. You authorize Cut+Dry (or our agent) to charge your payment method for the amounts you owe. If the payment is late or the payment method cannot be verified, is invalid, or is otherwise not acceptable, your order may be canceled and we may suspend or terminate your account and/or access to the service, however, we reserve the right to make multiple attempts to process any payment due until the payment is successfully processed.
To the extent the Sites permit you to set up recurring or subscription based payments, you agree that such recurring payments or subscription will automatically renew and you hereby authorize Cut+Dry to charge your provided payment method(s) until we receive notice from you to terminate such recurring payments or subscription. If you cancel an order or terminate a subscription any fees charged prior to the effective date of cancellation/termination or orders placed prior to cancellation/termination will not be refunded.
Payment Terms (B2B Platform)
Features of the B2B Platform enable Restaurants to submit payment(s) (a “Payment”) to Suppliers. In connection with such a Payment to a Partner Supplier Cut+Dry acts as a third-party technology provider to, and facilitates payment processing on behalf of, the Supplier. In connection with a Payment to a Supplier that is not a Partner Supplier Cut+Dry acts as an agent of Restaurant to deliver the payment to the Supplier.
Independent of the charges invoiced by Suppliers to Restaurants for products ordered through the Platform Cut+Dry may directly impose fees on Restaurant for its use of the B2B Platform. For example, in connection with a credit card Payment Cut+Dry may impose a convenience fee for the service of facilitating the payment to the Partner Supplier. Such fees shall be communicated to the Restaurant from time to time with reasonable notice.
If Restaurant pays any amounts with a credit card or through an ACH transfer, Cut+Dry may seek as applicable pre-authorization of the applicable credit card account or verify the applicable bank account to verify that the payment method is valid and has the necessary funds or credit available to cover the Payment. If Restaurant chooses to store payment method information with Cut+Dry via the B2B Platform for its convenience and use in future transactions, Restaurant agrees that Cut+Dry may receive updated information on the payment method (such as card number or expiration date) through services available from the card networks and may update the payment method credentials stored with Cut+Dry from time to time. Payments made through the B2B Platform are also subject to the terms of Restaurant’s agreement with its payment method issuer. Should a Restaurant be entitled or subject to a refund, reversal, chargeback, or other adjustment associated with the Payment and such adjustment is not being provided directly by the Supplier, Restaurant hereby authorizes a credit to its payment method (as applicable) to the extent necessary to achieve that adjustment.
Cut+Dry in its discretion may set limits on Restaurant’s use of the Sites, such as transaction limits on the dollar amount or number of Payments made within certain time periods. We may decline to process any Payment without any notice or delay processing of or hold or cancel processing of any Payment if we determine that Restaurant may have insufficient funds to cover the payment or that the underlying transaction or Payment itself is invalid, suspicious, involves misconduct or fraud, or otherwise violates applicable laws, these Terms, or any of Cut+Dry’s commercial agreements with its banking partners or Partner Suppliers related to the Sites, or exposes you, other Cut+Dry users, Suppliers, Cut+Dry partners, or Cut+Dry Entities to harm (such as, but not limited to, criminal activity).
Shipping; Delivery on the Consumer Market
Shipping and handling charges arising from any product order are your responsibility. When you purchase a product on the Sites, any shipping times and delivery dates are estimates only and the actual delivery date may vary.
Any person at the delivery address who receives the delivery is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself. If you are not at home when your delivery arrives, the delivery person will generally leave the package for you at or near your door, or in the lobby or front desk (or other reasonably suitable place) of the specified address, unless other delivery instructions have been communicated to you. You release Cut+Dry from any damage or losses (including without limitation decreased product quality or missing packages) arising from (i) an incorrect address provided by you; and (ii) issues arising from you not being present at the time of delivery; (iii) problems caused by improper handling of ordered products by the recipient.
You are responsible for inspecting all products you receive from us upon delivery. If you do not receive your delivery, or you believe it is incomplete, or you are unsatisfied with your order, please contact Cut+Dry within 24 hours of receipt of delivery (or the scheduled delivery time for missing deliveries). It is your responsibility to refrigerate all perishable products upon delivery and it is recommended that you follow federal government guidelines on refrigeration and food safety.
There may be some instances, as result of circumstances beyond our reasonable control (such as inclement weather, natural or national disaster), that your delivery cannot be made on the assigned delivery day. In such cases, an effort will be made to deliver your order as soon as practicable.
From time to time, the Consumer Platform may offer pick-up sites. For any customers who are assigned to a pick-up site: Any orders not picked up during the time window of the pick-up site will be forfeited by the customer and become the property of Cut+Dry.
If shipping or delivery information related to products ordered on the B2B Platform Restaurants should contact the applicable Supplier.
Product Warranty and Returns (Consumer Market)
Cut+Dry does not accept returns or exchanges of products ordered on the Consumer Market after the order is delivered. However, in the event that you are not satisfied with such an order, contact us at info@cut+dry.com and we’ll do our best to set the matter right.
If you are unsatisfied with a product ordered on the B2B Platform Restaurants should contact the applicable Supplier.
Sales; Fulfillment; Customer Service (B2B Platform)
The B2B Platform is a technology platform connecting Restaurants with independent food service distributors and others that provide the products offered through the B2B Platform. Restaurants acknowledge and agree that Cut+Dry does not itself prepare food or offer delivery services through the B2B Platform, and has no responsibility or liability for the acts or omissions of any Supplier. In connection with the B2B Platform Cut+Dry is not a merchant, seller of goods, or delivery service to Restaurant; it is an online connection platform. Supplier is the retailer; the services offered by Cut+Dry pursuant to the B2B Platform do not include any retail services or any food preparation services and in such context Cut+Dry is not in the delivery business nor is it a common carrier. Supplier is fully responsible for its fulfillment of any products purchased on the B2B Platform and any returns, mistakes or other customer service issues arising from the Supplier products. For example, the transportation and delivery of Supplier product and the coordination and cost of return shipping for a Supplier product (if applicable) is the Supplier’s responsibility. Title to products ordered on the B2B Platform, as well as the risk of loss for such products, is subject to agreement between the Restaurant and Supplier, and Cut+Dry hereby disclaims any liability in connection with such risk of loss. Cut+Dry will not assess or guarantee the suitability, legality or ability of any Supplier. Supplier is also responsible for sales, use, or other taxes and regulatory fees assessed, incurred, or required to be collected or paid for in connection with any advertisement, offer or sale of Supplier products (made on through or in connection with the B2B Platform). For the avoidance of doubt, Supplier is solely responsible for all customer service issues relating to Supplier products, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Supplier personnel, policies, or processes. Restaurants agree that Cut+Dry is not responsible for the Supplier’s food preparation or the safety of the food and does not verify Supplier’s compliance with applicable laws or regulations. Cut+Dry has no responsibility or liability for acts or omissions by any Supplier. Restaurant agrees that the goods that it purchases on the B2B Platform will be prepared by the Supplier it has selected, that title to the goods passes from the Supplier to you. You agree that Cut+Dry does not hold title to or acquires any ownership interest in any goods that Restaurant orders through the B2B Platform.
Transactions Involving Alcohol
Cut+Dry from time to time provides services to food service distributors that hold alcoholic beverage licenses (“Alcohol Suppliers”) such that the Sites may from time to time give you the option to order alcohol products directly from certain Alcohol Suppliers. In such circumstances Cut+Dry acts as a third party technology provider and is not the retailer of such alcoholic products and does not hold title to or acquire any ownership interest in any alcohol products that you order through the Sites. You agree that Cut+Dry does not have any responsibility or liability to you or any other person for any alcoholic beverage products you may purchase from an Alcohol Supplier, including without limitation, any purchase or fulfillment warranty or obligations for the alcohol products (which shall run directly from Alcohol Supplier to the end-purchaser of the alcohol products) or for any Alcohol Supplier’s compliance with applicable law, including without limitation, local regulations regarding sale of alcohol.
You agree that you will only order alcohol products if you are 21 years of age or older. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the delivery person delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that Cut+Dry cannot accept your order of alcohol products, and the order will only be delivered if the Alcohol Supplier accepts your order. The delivery person reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.
The Sites and the content residing thereon are owned by Cut+Dry or its affiliates or business partners, or by third parties other than you. Such content includes 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, trade names, and logos (“Marks”) contained in the Sites (collectively, “Cut+Dry Content”). Unless otherwise noted, the Sites and Cut+Dry Content included on the Sites, including images, illustrations, designs, icons, photographs, video clips and written and other materials, are subject to copyright, trademark, and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and international conventions protected by United States and international copyright laws. 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 Cut+Dry or the Sites will, as between you and Cut+Dry, be and remain the sole and exclusive property of Cut+Dry or other third parties. You may not display or reproduce the Marks in any manner without the prior written consent of Cut+Dry, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Sites.
The rights you grant in the foregoing license are for the purposes of allowing Cut+Dry to operate and allow other users to use the Sites in accordance with their functionality, improve the Sites, and develop new Sites. Cut+Dry may retain User Submissions for backup, archival, audit or legal purposes to the extent permitted by law. Furthermore, Cut+Dry may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of User Submissions that otherwise has been stored or shared through the Sites. Accordingly, note that the above license to your User Submissions continues even if you stop using the Sites.
Limited License and Access
The Sites are licensed, not sold, to you for use only under the terms of the Agreement. Subject to your compliance with the terms and conditions of the Agreement, Cut+Dry grants you a limited, revocable, non-transferable license to access and use the Sites and Cut+Dry Content provided that you do not (nor permit any third party in your control to):
- Copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, attempt to derive the source code of, grant a security interest in, any right in or portion of the Sites or Cut+Dry Content;
- Access, monitor, scrape, or copy (via, for example, deep-link or any robot, spider, web crawler, extraction software, automated process, or other device) any Sites data or material and/or incorporate it into a separate database, archive/cache it, etc.
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information;
- Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents;
- Violate any applicable laws or regulations;
- Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.
The Consumer Market may only be used by consumers for their own personal, noncommercial purposes.
Accounts and Passwords
If you use the Sites and such use requires setting up an account and/or password(s), you are solely responsible for maintaining the confidentiality of your account and password(s) and for restricting access to your computer. If you open an account, register, or provide us with any information, you agree to complete the account initiation, registration, or other process by providing us with current, complete, and accurate information as requested by any forms. Cut+Dry is not responsible for any errors or delays in responding to any inquiry or request caused by any incorrect, outdated, or incorrect information provided by you or any technical problems beyond the control or Cut+Dry. You acknowledge and agree that any login, identifier, or password issued in connection with the Sites (each a “Password”) is confidential information. You must maintain the confidentiality of any Password, and you may not disclose such Password to any other person or entity or permit any other person or entity to access the Sites using such Password. You agree to notify Cut+Dry immediately of any unauthorized use of any Password that is not issued directly to you or approved by us.
Upon termination of your account you agree that: (a) any use rights or licenses provided to you under the Agreement will end, and (b) except to the extent prohibited by applicable law Cut+Dry may (but have no obligation to) permanently destroy all information associated with your or your account stored on servers controlled by Cut+Dry. Cut+Dry is not liable to you or any third party for compensation, reimbursement, or damages in connection with any termination or suspension of the Sites or any deletion of information associated with you or your account. Upon termination those terms that by their nature are intended to survive termination (such as intellectual property ownership, arbitration obligations, indemnification obligations, limitations of liability, and payment obligations owed to Cut+Dry that accrued prior to the termination and any other amounts owed by you under the Agreement, including claims, fines, penalties, and other liability incurred by Cut+Dry caused by your use of the Sites) will survive.
Content You Submit to Cut+Dry
From time to time Cut+Dry may make available on the Sites bulletin boards, chat rooms, comment areas, billboards, forums, news groups, postings sections or similar communications facilities. These functions may enable you and others to submit content, such as reviews, images and postings (“User Content”). Submissions of User Content by visitors to certain parts of the Sites may be public and posted in public areas. User Content is intended to enhance the experience of the Sites, however, it should not be understood as to be endorsed by or necessarily represent the views of Cut+Dry. Cut+Dry disclaims any duty to review or modify User Content, and any responsibility for either the effects of harmful files, such as malware, that may be contained in that User Content, or for conduct by users or any third parties in connection with User Content submitted by them or you. Cut+Dry (without promising to do so) may decide it is in Cut+Dry’s best interests to block, remove, modify, or simply not post any User Content, including reviews or ratings, for any reason determined by Cut+Dry in its sole discretion at any time and may not notify you if it does so. If you decide to submit User Content, you promise you have the right to provide that User Content, which means: you are the creator and owner of the User Content, or the User Content is not protected by copyright law, or you have express permission from the copyright owner to use the User Content in connection with the Sites; and you have the necessary licenses, rights, consents, and permissions to authorize Cut+Dry and users of the Sites to use and distribute your User Content as necessary to exercise the licenses granted by you in these Terms.
You: (a) agree that any User Content you provide in may be read, collected, and used by others who access the User Content, (b) agree to indemnify Cut+Dry and its indirect or direct subsidiary, parent, or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, with Cut+Dry, the “Cut+Dry Entities”) from all claims relating to your User Content, 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 Content brought against the Cut+Dry Entities and our and their users to the extent relating to use of the User Content for the Sites or as otherwise expressly permitted under the Agreement. If you feel that User Content should be removed, please let us know, and Cut+Dry has the right, but not the obligation, to review such User Content, and ultimately it will be Cut+Dry’s decision (subject to any countervailing laws) on whether to take any action related to your request.
Digital Millennium Copyright Act
Cut+Dry expects all users to respect the intellectual property rights of others. Cut+Dry may remove material that appears in its sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer.
If you believe an issue copyright infringement should be brought to our attention, please provide us with the following information:
- identification of the work or material being infringed;
- a description of the material that you claim is infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence;
- your name, address, telephone number, and email address;
- a statement that you have a good faith belief that the use of those materials on the Sites 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.
Your notice must be signed (electronically or physically) and addressed as follows:
Cut and Dry Inc.
ATTN: Copyright Agent
228 Hamilton Ave., 3rd Floor
Palo Alto, CA 94301
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
Dealings with Third Parties
The Sites may contain links to third party websites, enable you to log in to the Sites via various online third-party services, or display advertisements and promotional material of goods and services offered by third parties (“Third Party Services”). By linking or otherwise displaying information from or providing access to any Third Party Services, Cut+Dry gives no representation, warranty, or endorsement, express or implied, regarding the legality, accuracy, quality, or authenticity of content, information, products or services provided by those Third Party Services. Further, the way Third Party Services (including social networking services) use, store, and disclose your information is governed solely by the policies of those Third Party Services, and we have no liability or responsibility for the privacy practices or other actions of any third-party website or service that may be enabled within the Sites. Conduct any diligence you feel necessary before engaging online or offline with any of these third parties. Cut+Dry disclaims all responsibility or liability for any harm resulting from your use of Third Party Services, including harm relating to payment, delivery or performance of related goods or services, and you irrevocably waive any claim against Cut+Dry regarding the content, products or operation of any Third Party Services.
THE SITES AND ALL CONTENT CONTAINED ON THE SITES, INCLUDING TEXT, GRAPHICS, AND LINKS, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATION OR WARRANTY. TO THE FULLEST EXTENT PERMITTED BY LAW, CUT+DRY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, CUT+DRY DOES NOT REPRESENT OR WARRANT THAT THE SITES OR CONTENT ACCESSIBLE VIA THE SITES IS ACCURATE, TIMELY, COMPLETE, OR CURRENT, AND YOU MAY NOT RELY ON THE SITES OR CONTENT.
In addition, User Content, including advice, statements, or other information is not produced by Cut+Dry, and should not be relied on without independent verification. User Content, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User Content originated.
To the fullest extent permitted by applicable law, we do not warrant that (i) the Sites will meet your requirements, (ii) the operation of the Sites will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. No advice or information, whether oral or written, obtained from other users or through the Sites, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Sites is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
Any information provided by us on the Sites regarding the products or otherwise is for informational purposes only and, as our products offerings regularly change based on seasonality, our food standards and other factors, may not necessarily be applicable to the products you purchase. You should read and strictly follow all product labels, packaging inserts and instructions that accompany the products and all manufacturer directions and warnings and seek independent professional advice when appropriate.
YOU ARE SOLELY RESPONSIBLE FOR RECEIVING, WASHING, STORING, USING, COOKING AND CONSUMING PRODUCTS PROPERLY (“PRODUCT HANDLING”) AND FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE YOU OR OTHERS PROCEED WITH PRODUCT HANDLING. IT IS SOLEY YOUR RESPONSIBILITY TO ADVISE THIRD PARTIES AS TO THE SAFETY REQUIREMENTS AND ANY POTENTIAL ALLERGENS IN THE PRODUCTS. WE CANNOT GUARANTEE THAT PRODUCTS ORDERED THROUGH THE SITES ARE ALLERGEN FREE OR MADE IN AN ALLERGEN FREE FACILITY.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CONDITIONS IN SOME CASES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT RELATED TO YOUR ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR PRODUCT HANDLING OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS SHALL THE CUT+DRY ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF PROFITS, REVENUE, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR INABILITY TO ACCESS OR USE THE SITES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR USER USING THE SITES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; (E) DAMAGES IN ANY MANNER RELATING TO ANY THIRD PARTY SERVICES ACCESSED VIA THE SITES; AND/OR (F) DAMAGES RELATING TO ANY UNAUTHORIZED ACCESS TO OR USE OF CUT+DRY’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION (IF APPLICABLE) STORED ON THOSE SYSTEMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE CUT+DRY ENTITIES ARISING OUT OF OR RELATED TO ANY USE OF THE SITES INCLUDING ANY ORDER, RECEIPT OR PRODUCT HANDLING OF PRODUCTS PURCHASED THROUGH THE SITES, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO CUT+DRY FOR USE OF THE SITES BY YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS OF LIABILITY OF THIS SECTION APPLY TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT CUT+DRY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
If you are a resident of California: You waive your rights with respect to 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 JURISDICTIONS OTHER THAN CALIFORNIA.
You agree to indemnify, defend and hold harmless the Cut+Dry Entities for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) 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; (b) your wrongful or improper use of the Sites; (c) any actual or alleged breach of your representations, warranties, and obligations set forth in these Terms; (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. Cut+Dry reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Cut+Dry in asserting any available defenses. This obligation will survive the termination or expiration of these TOS and/or your use of the sites. You are responsible for all use of the Sites using your account, and that these Terms apply to any and all usage of your account. You agree to comply with these Terms and to defend, indemnify and hold harmless Cut+Dry from and against any and all claims and demands arising from usage of your account, whether or not such usage is expressly authorized by you.
Restaurants acknowledge and agree that the seller of any food or beverage to the Restaurant on the B2B Platform shall be the applicable Supplier and, that as the seller, the Supplier will be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by Restaurant, caused in whole or in part by the Supplier, as well as for any unclaimed property liability arising from unredeemed orders or portions thereof. Restaurant waives, and releases Cut+Dry and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of a Supplier in connection with the goods provided in connection therewith and/or as it relates to compliance with applicable laws.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate or suspend your right to use these Sites, and to block or prevent future your access to and use of the Sites for any reason or no reason.
These Terms and the relationship between you and Cut+Dry shall be governed by the laws of the State of California as if you signed these Terms in California. The provisions of these Terms that conflict with or are inconsistent with applicable governing law will be superseded and/or modified by such applicable law only to the extent such provisions are inconsistent.
Consent to Arbitrate and Class Action Waiver
To the fullest extent permitted by applicable law, you and Cut+Dry agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Sites under the rules of the American Arbitration Association (“AAA”). Please visit www.adr.org for more information about arbitration.
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, provincial 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. Further, you may choose to pursue a dispute in court and not by arbitration if you opt-out of these arbitration procedures within 30 days of the date you first consent to these Terms (the “Opt-Out Period”). You may opt-out by submitting the following information to email@example.com: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Any opt-out request received after the Opt-Out Period will not be valid and you must pursue your dispute in arbitration or small claims court. Your decision to opt-out of arbitration will not adversely affect your relationship with us.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified 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”). 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 Cut+Dry may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cut+Dry must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Any arbitration hearing will take place at a location to be agreed upon in San Mateo 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), then the payment of all fees will be governed by the AAA rules. In that case, you will reimburse Cut+Dry 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.
You also acknowledge and understand that, with respect to any dispute between you and Cut+Dry, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Sites, or any other aspect of our relationship: (a) You are giving up your right to have a trial by jury; (b) You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and (c) any action or proceeding by you relating to such dispute must commence within one year after the cause of action accrues or it is forever barred.
If Cut+Dry changes this arbitration provision, you may reject the change by sending Cut+Dry written notice within 30 days of the change, in which case your right to use the Sites may be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If all or any part of this arbitration section is found to be unenforceable, then the remaining provisions of these Terms will remain in effect under the “Severability” clause below, and the exclusive jurisdiction and venue described above will govern any action arising out of or related to the Agreement.
This agreement to arbitrate will not preclude you or Cut+Dry from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Cut+Dry from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Cut+Dry’s intellectual property rights.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in San Francisco, California, and you and we hereby submit to the personal jurisdiction and venue of these courts. In the event of any litigation or arbitration arising from or related to the Agreement, or the Sites provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
Modifications and Service Monitoring
Cut+Dry may amend the Terms at any time with notice that we deem to be reasonable under the circumstances (each a “Revised Version”) by (i) posting revised Terms via the Sites, and/or (ii) notifying you of material changes, generally via email where practicable, and otherwise through the Sites. The Revised Version will be effective as of the time it is communicated, but will not apply retroactively. Your continued use of the Sites after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute between the parties that arose before the effective date of a Revised Version is governed by the Terms (including the binding individual arbitration clause) that was in place when the dispute arose.
Our Sites change from time to time and their form and functionality may change as we launch new products or features or make upgrades, patches or error corrections (“Updates”). We reserve the right to modify, suspend, discontinue or limit your access to or use of any part of the Sites (including by limiting or discontinuing certain features of the Sites), temporarily or permanently, without notice to you. The Agreement will apply to any and all Updates to the Sites. We will have no liability because of any Update to the Sites or any suspension or termination of your access to or use of the Sites.
Cut+Dry 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 Cut+Dry including but not limited to acts of God, flood, fire, regional or global pandemics, 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), the acts, decrees, legislation, regulations, or restrictions of any government, 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.
Severability and Waiver
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition. 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.
Messages and Notices from Cut+Dry
By providing your email address and/or mobile phone number to us through the Sites or in connection with an order, receipt or use of our service, you consent to receive email communications, calls or text messages at any such email address and/or phone number placed by or on behalf of Cut+Dry, including autodialed calls and/or text messages, for operational or transactional purposes, such as updates on the delivery status of your order or billing matters. 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 calls or text messages at any time by replying to the text message with “STOP” or contacting Cut+Dry customer support. Following such opt-out, you may continue to receive calls or messages for a short period of time while Cut+Dry processes your request. Please note, Cut+Dry may send you one additional message to confirm your opt-out. It is your responsibility to keep your account information, including your phone number, updated.
Cut+Dry may also send you email messages (or text messages to the extent permitted by law) related to certain features or services on the Site that are of a promotional or commercial nature. You may choose to opt-out of such emails or text messages).
Disclosures and notices regarding the Sites may be provided on the Sites or if applicable by emailing it to an email address or phone number listed in your user account. These electronic disclosures and notices will have the same meaning and effect as if you were provided with physical copies. These disclosures and notices are considered received by you within 48 hours of the time posted or emailed to you unless Cut+Dry receives notice of non-delivery. You will keep email address(es) and phone numbers valid and active and to monitor your email account(s). Review the applicable Sites regularly to review the prevailing disclosures and notices and check for updates.
The provider of services is: Cut+Dry Inc., 28 Hamilton Ave, 3rd Floor, Palo Alto, CA 94301
(by email at firstname.lastname@example.org). If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
These Terms constitute the entire agreement between the user and Cut+Dry with respect to the Sites and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Sites. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved. You may not transfer or assign your obligations under the Agreement without Cut+Dry’s prior written consent. Cut+Dry may transfer or assign any or all part of its rights under the Agreement without restriction and has the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Sites.
Notice Regarding Apple
If you are using our Mobile Applications on an iOS device, the terms of this Section apply. You acknowledge that the Agreement is between you and Cut+Dry only, not with Apple, and Apple is not responsible for the Sites or their content. Apple has no obligation to furnish any maintenance or support services with respect to the Sites. If the Sites 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 Sites. 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 Sites, including: (a) product liability claims; (b) any claim that the Sites 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 Sites 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 Sites. Apple and Apple’s subsidiaries are third party beneficiaries of this Section 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 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.